author: Mr. PRESIDING JUSTICE THOMAS J. MORAN Mr. PRESIDING JUSTICE MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Juan E. Emert, et al., Defendant-Appellant.
    (Nos. 70-245, 70-246 cons.;
    Second District
    August 19, 1971.
    Rehearing denied October 28, 1971.

      Morton Zwick, Director of Defender Project, of Chicago, (E. Roger Horsky, of Defender Project, of Elgin, of counsel,) for appellant.
    John B. Roe, State’s Attorney, of Oregon, (Alan Cargerman, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Defendants were convicted of armed robbery of an A & P store in Rochelle, Illinois. Their cases were transferred to this court by the Supreme Court and have been consolidated for the purpose of appeal.

Both defendants contend that the trial court erred in (1) refusing to grant their hearing on defense counsel’s motion, made during trial, to quash a search warrant and suppress evidence, and (2) that their court appointed counsel was incompetent. In addition, defendant Baker contends that he was not proved guilty beyond a reasonable doubt.

The State’s evidence consisted of the testimony of the store manager, the check-out clerk, two policemen, two people whom defendants visited shortly after the time of the robbery, and defendant Baker’s father. According to these witnesses, Baker, who was known to the check-out clerk, entered the store alone about 5:00 P.M. on September 29, 1969. He remained for 10 to 15 minutes in the general area of the store’s freezer section, from which vantage it is possible to observe the store office containing several safes. Baker left without making a purchase. About 6:00 P.M., a man, who was not wearing a mask and who was later identified as defendant Emert, entered the store. He arrived at the check-out counter carrying a shopping bag and a box of “Sociable” brand crackers. The man drew a gun and announced the robbery. He took about $1100, including an A & P pay envelope, containing approximately $40, marked “Marian”. During the period of the robbery, only the manager and the clerk were in the store. Both remembered the time because they were in the process of completing the six o’clock closing. The man left at approximately 6:15 P.M., and ran across the street into an areaway between buildings. He was followed by the manager. Upon reaching the alley behind the buildings, he entered a moving, white 1959 Pontiac which was waiting near the entrance to a house rented by defendant Baker and occupied by both defendants and Baker’s father.

Baker’s father testified that defendants came to visit him from Kentucky on the Friday before the robbery; that he saw his son sometime before 6:00 P.M. on the night of the crime and that he knew his son intended to return to Kentucky but did not know the exact time he planned to leave.

Mrs. Margie Hess testified that on the day in question defendants arrived at the Hess apartment about 6:30 P.M. (she remembered the time because “Gunsmoke” was just coming on television); that Emert brought a box of “Sociable” crackers with him and defendants remained for about two hours. Mr. Hess testified that they were driving a white 1959 Pontiac.

John McAllister, a State Trooper, testified on direct examination that he received a radio message which described a white 1959 Pontiac and informed him that the men therein were armed. He saw the automobile late in the evening of September 29, 1969, followed it, and pulled up behind it when it stopped. According to the trooper, Emert was driving and Baker was in the front seat. He further said that, after pulling up behind the automobile, he ordered defendants to get out, to put their hands up and told them they were under arrest. Prior to any Miranda warning, he asked Emert where they were heading. The reply was “to Kentucky to visit Baker’s sick relatives.” He then gave them the Miranda warnings and asked to search tire automobile. Emert said, “Yes, sir. Go ahead.” A search of the trunk revealed a .38 calibre Smith and Wesson pistol and some money.

On cross-examination, the trooper changed his testimony by denying that any statements were made before the Miranda warnings were given.

Defendants were taken to the Marshall County jail and later transferred to Ogle County; their car was towed to a garage in Woodford County. On October 2, 1969, the Rochelle police (Ogle County) advised the State Police that there should have been more money in the automobile. On the basis of this information, the trooper obtained a search warrant and went to the garage in Woodford County. His second search revealed approximately $200 and an A & P money envelope with “Marian” written on it.

Defense counsel questioned McAllister about the search warrant. The trooper stated that the warrant had not been served on the defendants and that the defendants were not informed of any search. When counsel asked if an informant was involved, the State requested a discussion out of the presence of the jury. In chambers, defense counsel said he had never seen a copy of the search warrant. The State’s Attorney left to get a copy. The trial judge said, “It is my understanding that you have to make a motion to suppress before the case goes to trial.” The State’s Attorney returned and defense counsel began to question the basis for the issuance of the warrant. The court reviewed its file on the case, determined no pretrial motion to suppress had been filed, reminded defendants’ attorney of the length of time that the men had been in jail, and of the length of time since he had been appointed. The State’s Attorney said, “For the record, I don’t have any knowledge of the search warrant. I have no objection to that being in the record.” However, he did object on the ground that the motion was not timely. The court then said, “I think you better scrap any testimony concerning the search warrant.” The hearing resumed in the presence of the jury and no further questions were asked concerning the warrant.

The store manager was recalled and identified the A & P envelope with “Marian” written on it (found in the second search) as the one taken in the robbery.

Defendants were the only witnesses for the defense. Defendant Baker said he met Emert in Kentucky and returned to Illinois with him; that Emert’s house had recently burned down and a collection had been taken up for him; that Emert placed that money in a paper bag which he locked in the trunk of the Pontiac. According to Baker, he visited the A&P twice during the day of September 29, 1969, once at about 10:00 — 11:00 A.M. and once between 4:30 — 5:00 P.M.; that the second visit was for the purpose of meeting a friend; that he met and talked with the friend for about five to ten minutes in the store and then returned to his father’s apartment. He said that when he and Emert left, between 5:45 and 5:50 P.M., Bakers father was asleep on the couch; that they then went to the Hess apartment in Emert’s white 1959 Pontiac, arriving at the Hess’ at approximately 6:00 P.M., or before, and that the “Flintstone’s” were on television. They left the apartment 2 hours later, Emert driving, and stopped for a beer; after leaving the bar, Baker drove. Baker stopped the automobile because of car trouble, got out of the vehicle and raised the hood to check it. At that time there was a car (Trooper McAllister’s) parked 300 feet behind them. After other police cars arrived, the troopers approached the men, handcuffed and searched them. Baker said that neither man was informed of the offense being charged and specifically denied hearing Emert give anyone permission to search the car.

Defendant Emert’s testimony was essentially the same as Baker’s including confirmation that the “Flintstone’s”, not “Gunsmoke”, was on television. He added that Baker drove from the house to the Hess’, that he got out of the car to help Baker while he worked on the automobile; that some of the money in his automobile came from an income tax refund and that the reason they decided to leave for Kentucky was that one of Baker’s relatives had passed away. Emert did not remember who took the crackers to the Hess apartment, saying that there had been two or three boxes of them in the automobile since that morning.

The man who Baker allegedly met in the grocery store did not testify.

The initial question presented by this case is whether a search warrant was necessary. If the warrant was not necessary, no error arose from the court’s denial of counsel’s motion, made during trial, to quash the search warrant and suppress the evidence obtained therefrom. The United States Supreme Court standards established for search and seizure questions are read into Illinois law. People v. Grod (1944), 385 Ill. 584. The principle cases dealing with searches of automobiles are Carroll v. United States (1925), 267 U.S. 132, 69 L.Ed. 543, 45 S.Ct. 280, 39 ALR 790; Chambers v. Maroney (1970), 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975; and Coolidge v. New Hampshire (1971 U.S.), 29 L.Ed.2d 564.

Carroll provides for warrantless searches of a motor vehicle stopped on a highway, recognizing the inherent mobility of the automobile and the possibility that the failure to make an immediate search would result in the disappearance of contraband. Chambers reaffirmed Carroll and further permitted the police to take the automobile to the police station and search it there, the rationale for this extension being that, for constitutional purposes, there is no difference between “* * * on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant.” (26 L.Ed.2d 419, 428.) However, the court carefully refrained from giving carte blanche approval to search automobiles without a warrant. It said, at the same page:

“Neither Carroll, supra, nor other cases in this Court require or suggest that in every conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords.”

The automobile search doctrine has recently been further explained in Coolidge. There defendant, -under investigation for a murder and having cooperated with the police, was arrested inside his home with the police surrounding the house. At the time of the arrest, an auto owned by him was parked in the driveway of his home. A search warrant was issued for the automobile and it was towed to the police station where it was searched two days later. It was searched twice more, approximately a year thereafter. Upon holding the search warrant invalid for reasons not pertinent to our case, the court considered various theories put forth by the State to justify the searches without a warrant. One of these was that under Carroll and Chambers, when the police have probable cause to search an automobile on the highway they may take it to the police station to do so. The plurality opinion pointed to the absence of mobility in Coolidge which was the underlying rationale of Carroll and Chambers, and said, at 29 L.Ed.2d 580-581:

“The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears. And surely there is nothing in this case to invoke the meaning and purpose of the rule of Carroll v. United States — no alerted criminal bent on flight, no fleeting opportunity on an open highway after a hazardous chase, no contraband or stolen goods or weapons, no confederates waiting to move the evidence, not even the inconvenience of a special police detail to guard the immobilized automobile. In short, by no possible stretch of the legal imagination can this be made into a case where ‘it is not practicable to secure a warrant,’ Carroll, supra, at 153, 69 L.Ed. at 551, 39 ALR 790, and the ‘automobile exception,’ despite its label, is simply irrelevant.
Since Carroll would not have justified a warrantless search of the Pontiac at the time Coolidge was arrested, the later search at the station house was plainly illegal, at least so far as the automobile exception is concerned. Chambers, supra, is of no help to the State, since that case held only that, where the police may stop and search an automobile under Carroll, they may also seize it and search it later at the police station.”

Unquestionably, in the instant case, the first search on the highway fit squarely within the dimensions of Chambers. The second search, however, like the searches in Coolidge, was not a search where “it is not practicable to secure a warrant.” The automobile was stored at a remote body shop where it remained for approximately three days. Mobility is not an issue. There is no indication in the record that any further search would have been conducted without the request of the Rochelle police.

The State argues that either the probable cause to make the original search continued throughout the period of detention or that there was, as stated in oral argument, “renewed probable cause” due to the Rochelle police request. We disagree. To say that continuing probable cause to search exists is to give the police unbridled authority to rummage through private property again and again at their leisure. To say that renewed probable cause arose, flagrantly disregards the caution of Chambers and Coolidge where in the extra protection provided by a search warrant is required if the mobility of the vehicle is not an issue. The State must have thought a search warrant necessary; it had one issued. We conclude that, under the circumstances of this case, a search warrant was necessary.

Since we hold that a warrant was required for the second search, we must consider defendants’ contention that their oral motion made during trial was improperly denied. Section 114—12 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 114—12), provides that motions regarding the suppression of evidence must be in wilting and “shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion.” In People v. Thomas (1967), 88 Ill.App.2d 71, defendant was arrested in connection with a rape. During the trial, the State produced sheets, blankets and a bedspread taken from the defendant’s room. Defendant’s oral motion to suppress was denied. At defendant’s request, a hearing was held to determine whether defendant could possibly have had knowledge of seizure of the items. Defendant was tlie sole witness at the hearing. His uncontradicted testimony showed that he was detained in the hall during the entire search and was wholly unaware that these articles were taken by the police. The court held that, from the evidence adduced at the hearing, the defendant was not aware, prior to trial, of the grounds upon which to base a motion to suppress and, therefore, a motion during trial was proper.

In the case at bar, defense counsel’s statement that he had never seen a copy of the search warrant, the State’s Attorney’s admission that he had no knowledge of it, and the trooper’s testimony that a copy of the warrant was not served upon the defendant, led to the assumption that the defendants were not aware of the search prior to trial.

During the conference in chambers, the court, after reviewing the file, was of the opinion that sufficient time had elapsed prior to trial for the defendants to move to suppress the search warrant and, having failed to do so, were precluded from doing so during trial. This was an incorrect conclusion in view of the facts. The court should have permitted the defendants to establish the timeliness of their motion and, if found timely, to then hear evidence on the merits of the motion. Ill. Rev. Stat. 1969, ch. 38, par. 114—12.

Defendants’ contention concerning the competency of counsel is stated in terms of lack of preparation and investigation. However, the failures they allege concern the actions of counsel in regard to the two searches of the automobile. Since we hold that the first search was proper and that counsel acted properly when confronted with the result of the second search, no question of incompetency arose.

We now turn to a consideration of the question of Baker’s accountability. To hold Baker accountable for the actions of Emert, the State was required to show that either before or dining the commission of the offense, and with intent to promote or facilitate such commission, Baker solicited, aided, abetted, agreed or attempted to aid Emert in the planning or commission of the offense. (Ill. Rev. Stat. 1969, ch. 38, par. 5—2.) Defendant Baker admits that circumstantial evidence contained in the present case may form the basis for holding him accountable, but contends that it “falls far short of establishing his guilt beyond all reasonable doubt.” Baker primarily relies upon People v. McMillan (1970), 123 Ill.App.2d 232. We distinguish that case upon the facts. There the State never established the accountability of the co-defendant ICrause. There was a failure to place Krause at the scene when the crime occurred.

Here, the testimony elicited during the trial shows that Baker and Emert travelled together to Rochelle from Kentucky, that they were living in Baker’s house across the street from the grocery store and that Baker made a trip to the store immediately prior to the holdup to visit a friend. Immediately after the robbery, Emert jumped into a moving vehicle (the described white Pontiac) which was behind Baker’s house; the men arrived together at the Hess apartment within minutes of the crime; Emert stated that Baker was the one who drove the Pontiac to the Hess home; and they were arrested together on the evening of the crime. In addition, during the trial, Baker admitted knowing the automobile contained money and a pistol but gave other reasons for their presence. In the instant case, based upon all of the evidence introduced and allowed (circumstantial and otherwise), we conclude that Baker was proven guilty beyond a reasonable doubt. However, the question of whether all of this evidence should have been introduced and allowed should properly have been ascertained by a hearing on the defendants’ motion to suppress.

Therefore, this case is remanded with directions to the trial court to vacate the judgment of conviction entered against the defendants herein and conduct a hearing in accordance with this opinion. In the event the trial court concludes that the motion to suppress the search warrant should be allowed, then the trial court shall grant the defendants a new trial. If, however, the motion to suppress the search warrant is denied, then the trial court shall enter a new judgment of conviction.

This cause is remanded with directions.

Remanded with directions.

GUILD and STROUSE, JJ„ concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Mr. PRESIDING JUSTICE MORAN

delivered the opinion of the court:

The State has filed a petition for rehearing claiming that we misinterpreted the holding of the plurality opinion in the Coolidge case. It is argued that Mr. Justice Stewart’s interpretation of Chambers in Coolidge would validate a warrantless search of Emert’s car on October 2, 1969. We disagree. Mr. Justice White, in his dissenting opinion in Coolidge has best explained our conclusion when at page 616 he stated:

* * But Chambers did not authorize indefinite detention of automobile so seized; it contemplated some expedition in completing the searches so that automobiles could be released and returned to their owners * * *”

and continuing at page 617 said:

“The majority now approves warrantless searches of vehicles in motion when seized. On the other hand, warrantless, probable cause searches of parked but movable vehicles in some situations would be valid only upon proof of exigent circumstances justifying the search.” (Emphasis added.)

The term “exigent circumstances” seems to be the key factor in determining when a warrantless search of an automobile is authorized. We find no exigent circumstances in the record before us and therefore adhere to our original opinion.

The petition for rehearing is denied.

GUILD and STROUSE, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SEIDENFELD.

license: Public Domain

text:
    Peter J. Stura, et al., Plaintiffs and Counter-Defendants-Appellees, v. Robert Krilich, Defendant and Counter-Plaintiff-Appellant.
    (No. 71-29;
    Second District
    October 13, 1971.

      Rehearing denied November 18,1971.

    Rathje, Woodward, Dyer & Burt, of Wheaton, (Alfred E. Woodward and Gerald J. Brooks, of counsel,) for appellant.
    Douglas C. Hancock, of Elmhurst, for appellee.
   Opinion by

Mr. JUSTICE SEIDENFELD.


author: Mr. PRESIDING JUSTICE MORAN

text:
    Fragman Construction Company, a Division of Capitol Fixture and Construction Corporation, Plaintiff-Appellee, v. Preston Construction Company, Inc., Defendant and Third Party Plaintiff-Appellee.—(Aetna Insurance Company, Third Party Defendant-Appellant.)
    (No. 70-280;
    Second District
    October 15, 1971.

      Rehearing denied November 18, 1971.

      Gilbert, Powers & Graves, of Rockford, for appellant.
    King & McNamara, of Rockford, (John F. McNamara, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE MORAN

delivered the opinion of the court:

Aetna Insurance Company, a third party defendant, (hereinafter referred to as Aetna) appeals from a summary judgment entered on behalf of Preston Construction Company, a third party plaintiff (hereinafter referred to as Preston).

Preston, a sewer contractor, entered into an agreement with the City of Rockford, whereby it agreed to install water mains for the City. Pursuant to this contract, Preston, in December 1967, installed a water main which was to provide service for a department store under construction. On January 6, 1968, the water was turned on in the main. A defectively installed shut-off valve did not function properly, resulting in the escape of water which poured upon the construction site. Fragman Construction Company, the contractor who was building the store, (hereinafter referred to as Fragman) brought a two count complaint against Preston and the City seeking recovery for damages to the construction site caused by the water. Subsequently, Rockford was dismissed from the suit and Fragman filed an amendment to the complaint. Upon a bench trial Fragman received a judgment against Preston in the amount of $15,694.80 plus costs.

Preston had been issued a comprehensive general liability policy by Aetna which policy was in effect from October 1, 1967, until October 1, 1968. After Preston had been notified of the Fragman claim, it notified Aetna and demanded defense of the suit under the terms of the insurance contract. Aetna denied coverage, alleging that its investigation indicated that the damages occurred after Preston had completed its job and that the policy did not provide for completed operations insurance. After Fragman s suit was commenced, counsel for Preston tendered all of the pleadings to Aetna and demanded performance. Aetna again stated that there was no coverage and that it, consequently, did not have to provide a defense.

On May 8, 1970, after the judgment had been entered in favor of Frag-man, Preston was granted leave to file a third party complaint against Aetna, alleging that Aetna was liable to Preston under the insurance policy. On July 27, 1970, Preston filed a motion for summary judgment, alleging: that the Fragman complaint stated a cause of action which was potentially covered by the Aetna policy; that, under Illinois law, if a complaint alleges facts which indicate potential coverage under a liability policy, the insurer has the duty to defend the action brought against the insured; that Aetna did not defend, even though there was potential coverage and consequently is now estopped from asserting non-coverage defenses. The motion for summary judgment was granted; Aetna was ordered to pay Fragman the amount of the judgment and to pay Preston its attorney’s fees. Aetna appeals from that order.

The law in Illinois concerning the insurer’s duty to defend a suit brought against an insured party is articulated in three principle cases. (Country Mut. Ins. Co. v. Murray (1968), 97 Ill.App.2d 61; McFadyen v. North River Ins. Co. (1965), 62 Ill.App.2d 164; Sims v. Illinois Nat. Cas. Co. of Springfield (1963), 43 Ill.App.2d 184.) These cases develop the rule that the insurer has the duty to defend the insured when a complaint has been filed against the insured and when the aUegations in the complaint “state facts which bring the case within, or potentiaHy within, the coverage of the policy # (McFadyen v. North River Ins. Co., supra, 170-171.) Unless the complaint aUeges facts which, if true, would exclude coverage, the potentiality of coverage is present and the insurer has a duty to defend. (Country Mut. Ins. Co. v. Murray, supra, 72.) This rule is based upon the principle that the insurer’s duty to defend is broader than its duty to pay. If there is potential coverage but the insurer believes it has valid exclusionary coverage defenses, it must: (1) secure a declaratory judgment of its rights while defending the potential insured under a reservation of rights, or (2) defend the potential insured under a reservation of rights and adjudicate its coverage in a supplemental suit. (Country Mut. Ins. Co. v. Murray, supra, 73.) If the insurer refuses to defend or seek a declaratory judgment in a case where there is potential coverage, it is estopped from raising exclusionary defenses in a subsequent action against the carrier by the insured.

Consequently, the issue before us is whether Fragman’s complaint, filed against Preston, alleged facts which brought the action within, or potentially within, the coverage of the Aetna policy. If potential coverage was present, Aetna breached its duty to defend and is estopped from raising any exclusionary coverage defenses, and summary judgment was properly entered in Preston’s behalf, since there would be no material issues to be tried.

We must now examine the “four corners” of the complaint and the policy to determine if the contents of the complaint, when taken at face value, alleged a cause of action which is potentially covered by the policy. (Country Mut. Ins. Co. v. Murray, supra 71.) Count 1 of the complaint in part stated:

“6. That pursuant with its contract to the CITY OF ROCKFORD the said PRESTON CONSTRUCTION CO., INC., instaUed said 12 inch water main * * * to the premises in question, affixed a shut-off valve at the southerly terminus of said water main; that on or about January 6, 1968, the CITY OF ROCKFORD, without notice to PRESTON CONSTRUCTION CO., INC., turned the water into said main under such pressure that the shut-off valve installed by PRESTON CONSTRUCTION CO., INC., broke, slipped or separated from its intended connection. * * *

7. That at and prior to said time and place the defendant, PRESTON CONSTRUCTION CO., INC., was guilty of one or more of the following negligent acts or omissions, to-wit:

a) That it attached and affixed a shut-off valve to the 12 inch water main or an extension therefrom, in such manner that when subjected to water pressure it broke, slipped or separated from said main or extension, * * *

b) That it improperly attached said shut-off valve to water main***;

c) That it attached and connected a shut-off valve to said water main or extension without properly securing and fastening same;

d) That it attached or connected said shut-off valve to a collar or sleeve which was improper, inadequate and insufficient to properly hold said shut-off valve pressure;

e) That it failed to securely bolt or attach said shut-off valve to said water main or extension;

f) That it improperly allowed and permitted said shut-off valve to slip and separate from said water main or extension when under pressure;

g) That it failed and omitted to notify the City of Rockford, Water Department, that said shut-off valve was not securely attached so as to hold under pressure.”

Count II as amended provided in part:

“9. That the aforesaid damage was received from the water that escaped from the water main which had been constructed by the defendant, # * and that said damage would not have occurred if the water main and its pertinent parts had been properly connected and installed.”

From the face of the complaint it appears clear that Fragman was charging Preston with negligent installation of the shut-off valve. Since a comprehensive liability policy covers negligent acts committed by the insured during the course of operations, it would seem that the facts alleged in the complaint were covered, or at the very least, were potentially covered by the Aetna policy.

Aetna argues that there was no potential coverage since Preston did not have completed operations coverage and the negligent acts alleged, occurred after completion of the operation. Aetna bases this argument first, on the fact that Fragman’s complaint was phrased in the past tense indicating that, at the time damage occurred, Preston had already completed its work. In this regard it is difficult to imagine how a complaint can allege negligence, whether during the course of the work or after the work had been completed, without using the past tense. Additionally, Count II of the complaint as amended, alleged negligence “at and prior to” the time of damage which would appear to allege negligence at the time the work was being done.

Secondly, Aetna concludes there was no potential coverage since damages did not occur until after the operation had been completed and that post-operation damages can only be covered in a completed-operations policy. We do not agree since the complaint does not allege that damages occurred after the operations were completed; rather, Aetna came to this conclusion through its own investigation. The law is clear that, in determining whether there is potential coverage, only the complaint can be considered.

“The insurers duty to defend is predicated not upon information in its possession which indicates or even proves noncoverage. Rather, it is predicated upon the allegations in the complaint in an action brought against the insured and when such allegations state facts which bring the case within, or potentially within, the coverage of the policy, the insurer is from this time on unjustified in not defending the insured.” McFadyen v. North River Ins. Co., supra, 170-171.

We hold that the complaint, on its face, alleged facts which showed potential coverage and that Aetna breached its resultant duty to defend Preston. Consequently, Aetna is estopped from asserting any exclusionary defenses. There are, therefore, no material issues to be tried. The summary judgment entered in favor of Preston is hereby affirmed.

Judgment affirmed.

GUILD and SEIDENFELD, JJ., concur.


text:
    Gloria Mathey, Plaintiff-Appellee, v. Richard Mathey, Defendant-Appellant.
    (No. 71-3;
    Second District
    October 15, 1971.

      Rehearing denied November 12, 1971.

    O’Brien, Burnell, Puckett & Barnett, of Aurora, (Peter K. Wilson, Jr., and Donald L. Puckett, of counsel,) for appellant.
    Rodney A. Wright, of De Kalb, for appellee.
   Mr. PRESIDING JUSTICE MORAN

delivered the opinion of the court:

The defendant appeals from an order modifying the divorce decree, and granting custody of the minor child of the parties to the plaintiff.

The sole issue on appeal is whether removing the child from Illinois to Wisconsin was sufficient grounds for revoking defendant’s custody.

The parties were divorced on July 5, 1968. The decree incorporated the written agreement between the parties which granted the defendant the sole care and custody of the child and also gave the plaintiff visitation rights.

Since the divorce, both parents have remarried. In 1970, the defendant desired to relocate his business of contract painting to Menomonee, Wisconsin, approximately 300 miles from the then present homes of tire parties. In July, he rented living quarters in that city for his family. Beginning in June, the defendant made various attempts to obtain the consent of the plaintiff to permit the child to move with him. The negotiations were inconclusive. However, both parties testified that on September 10th, the plaintiff first told defendant that she would definitely not allow him to take the child. Up to that time, the child had remained in Illinois, even though he missed two weeks of school while negotiations were pending.

Thereafter, defendant took the child to Wisconsin, and on September 14, 1970, filed a petition to modify the divorce decree to allow the move. The plaintiff countered with a petition requesting that custody of the child be awarded to her.

A hearing was held on the petitions, and an order granting custody to the plaintiff was entered. The court found both parents to be fit and proper persons to have custody of the child and further found “that there has been a substantial change in circumstances affecting the welfare of said minor child in that defendant, without first having obtained leave of court or agreement with plaintiff, removed said child without the State of Illinois * * # thereby effectively foreclosing plaintiff’s visitation rights * * *”

The well established rule in Illinois is that all questions of custody are determined according to the welfare and best interests of the child. (Nye v. Nye (1952), 411 Ill. 408, 415; People ex rel. Morris v. Morris (1969), 44 Ill.2d 66, 68.) A material change in circumstances, which occurs after entry of a decree granting custody, may be sufficient basis to change custody. However, the court may not change custody unless the altered conditions are of such a nature that a change is necessary for the welfare of the child. Nye v. Nye, supra, 416; Hirth v. Hirth (1965), 59 Ill.App.2d 240, 243; Laughlin v. Laughlin (1968), 97 Ill.App.2d 480, 483; Jayroe v. Jayroe (1965), 58 Ill.App.2d 79, 82.

In the present case, the only change in circumstances found by the trial court was the relocation of the defendant without first obtaining leave of court. This, in and of itself, was not sufficient grounds for revoking defendant’s custody. See, Jingling v. Trtanj (1968), 99 Ill.App. 2d 64, 71; Norris v. Norris (1970), 121 Ill.App.2d 226, 231, and Dokos v. Dokos (1967), 88 Ill.App.2d 330, 334.

The order therefore must be reversed and the case is remanded for further proceedings consistent with the views herein expressed.

Reversed and remanded.

SEIDENFELD and GUILD, JJ., concur.


author: Mr. JUSTICE ABRAHAMSON

text:
    Country Mutual Insurance Company, Plaintiff-Appellee, v. Rex Lower, et al., Defendants-Appellants.
    (No. 70-242;
    Second District
    October 18, 1971.
    Petty & Kightlinger, of Mt. Carroll, for appellant.
    Fearer & Nye, of Oregon, for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The question raised is whether an issue of material fact was presented to the trial court in defendants’ answer and affirmative defense to a declaratory judgment action brought by an insurer and involving coverage under an insurance policy. The defendants contend that the court improperly granted plaintiff’s motion for judgment on the pleadings because the pleadings placed material facts in issue. Swidler v. Litvin, 107 Ill.App.2d 227, 231.

On May 12, 1969, Rex Lower and Seth Yearington filed a complaint against Plains Cattle Company, Inc., hereinafter known as Plains Cattle, and its agent, Larry Neuschwanger, for damages to livestock placed by them with the defendant, Plains Cattle, under a verbal agreement for feeding in a feedlot owned by Plains Cattle and cared for by its agent, Neuschwanger. The complaint alleges that Neuschwanger, as agent for Plains Cattle, carelessly and negligently left gates connecting feedlots open so that plaintiff’s herd escaped from their feeding lot into adjoining feedlots where they fed on unsuitable food. As a result of this, 11 cows died, 3 cows became sick and unmerchantable, 21 calves were lost and other damages were incurred.

On July 18, 1969, the plaintiff, Country Mutual Insurance Company, hereinafter referred to as Country Mutual, filed a complaint for declaratory judgment on an insurance policy issued to Plains Cattle and Neuschwanger, who are named as defendants together with Lower and Yearington. It is alleged that the defendants, Plains Cattle and Neuschwanger, tendered to Country Mutual the summons in the case brought against them by Lower and Yearington, and have made a demand upon this plaintiff to furnish them with a defense in said suit and to pay any judgment against them within the limits of the policy; that thereafter the plaintiff, Country Mutual, and the defendants entered into a nonwaiver agreement pursuant to which Country Mutual retained counsel and is defending Plains Cattle and Neuschwanger in the Lower and Yearington suit against them, although said case has not been reached for trial. Country Mutual further denies that it afforded the coverage claimed under said policy, or is liable for any judgment that may be entered against the defendants, Plains Cattle and Neuschwanger, by reason of the acts of negligence attributed to Plains Cattle and its agent, Neuschwanger, because said policy contains an exclusion under Coverage B as follows:

“(1) To damage to or destruction of property owned, rented, operated, used by or in the care, custody or control of an Insured or his employees or any other person residing in an Insured’s household.”

Country Mutual also states in its complaint that it will be subjected to great expense if it is required to defend the suit; that it ought not to be required to furnish the defendants a defense or disclaim liability under the policy until a hearing can be had determining the rights and liabilities of the plaintiff under the terms and provisions of the insurance policy, and that the plaintiffs in the original suit, Lower and Yearington, should be enjoined from prosecuting that suit until this suit is concluded. The complaint concludes with the statement that under Section 57.1, of the Civil Practice Act, the court is vested with the power to declare the rights and liabilities of the parties under the policy and prays that the court enter a declaratory judgment construing the insurance so as to determine that at the time of the alleged negligent feeding of the cattle, the defendants, Plains Cattle and Neuschwanger, were not covered by the policy of insurance by reason of the exclusions set forth in the policy. Thereafter, Lower and Yearington filed an answer denying that the policy did not afford coverage of any alleged wrongful acts by reason of the exclusion set forth under Coverage B. The defendant, Plains Cattle and Neuschwanger, answered the complaint, making the same denials as did Lower and Yearington in their answer and also set forth an affirmative defense as follows:

“1. That the Special Farmowner Policy [Exhibit A of Plaintiffs Complaint] issued to Plains Cattle Company, Inc. was a fraud on part of the Plaintiff in that said Plaintiff’s duly authorized agent, Herschel W. Hopkins, represented that the abovementioned policy of insurance would include coverage for damage or destruction of property which is in the care, custody or control of the insured or his employees.

“2. That said representations were false in that the Plaintiffs policy of insurance, as issued to the Defendants, did not in fact provide the coverage which was represented.”

and said defense concludes that as a result of this fraud on the part of the plaintiff that the defendants were damaged in that they believed they were protected by the insurance coverage and did not purchase insurance elsewhere. On December 3, 1969, Country Mutual filed a reply to the affirmative defense denying the allegation of fraud on the part of their alleged agent or that any representations were made as to coverage for damage or destruction of property which was in the care, custody or control of the insured or his employees. The reply also admits that the policy of insurance did not provide the coverage claimed by the insured.

On the same day, Country Mutual filed a motion to strike and dismiss from the affirmative defense the allegations of fraud, misrepresentation and inducement to the insureds to purchase the policy, and states that if those allegations are true, Plains Cattle and Neuschwanger would have to be found guilty under the original cause of action and be required to pay a judgment in order for them to have a cause of action based upon the fraud claimed against the agent of Country Mutual, or that said defendants would have to file a third-party action, charging said fraud.

Country Mutual on December 3, 1969, also filed a motion for judgment on the pleadings because the affirmative defense states that the policy “did not in fact provide the coverage which was represented,” and defendants, therefore, have admitted that the policy did not cover did not cover the claim in question. On January 23, 1970, the trial judge, on the motion for judgment on the pleadings filed a memorandum opinion stating that a material fact existed as to whether or not the agent misrepresented the policy provisions so that the matter could not be resolved as a matter of law. The court thereupon entered an order denying the motion.

However, on August 3, 1970, when the matter came on again to be heard upon the pleadings, including the complaint and motion for judgment, the court entered an order finding that the defendants, Plains Cattle and Neuschwanger, had admitted, by their answer and affirmative defense, that they do not have any coverage under the policy as to the incident involved and that by reason of the admissions, Country Mutual does not owe them a defense to the original cause of action and would not be liable for any judgment against them. The order released Country Mutual of any obligation to them by reason of the original action. Thus, it appears that although the court at first denied plaintiffs motion for judgment on the pleadings, the court thereafter reconsidered the earlier order and entered judgment on the pleadings in favor of the plaintiff. This appeal followed.

Rather than pleading in the alternative, it appears that defendants, as stated in paragraph 2 of their affirmative defense, have taken the position that the policy does not cover the loss in question but that false misrepresentations were made to them by an agent of the insurer as to what the policy would cover. Those defendants, Plains Cattle and Neuschwanger, thus have asserted the affirmative defense of fraud for the purpose of holding the plaintiff-insurer liable for the acts of its agent.

Defendants contend that the holding in Brosam v. Employers Mut. Cas. Co., 61 Ill.App.2d 183, 197, should apply here, while the plaintiff contends that the holding in Spence v. Washington Nat. Ins. Co., 320 Ill.App. 149, 155, should apply. In Brosam, the plaintiffs filed suit for reformation of a public liability insurance policy against the defendant, Employers Mutual. The circuit comt entered a decree which reformed the insurance policy to extend the liability coverage to property damage to horses in the care, custody and control of the insured (plaintiffs therein) for breeding purposes. The court also entered judgment in favor of the plaintiffs and against the insurance company for the amount of a judgment that had been rendered against the plaintiffs for the death of a horse resulting from the negligence of the plaintiffs while the horse was in the care, custody and control of the plaintiffs for breeding purposes. The defendant-insurer therein, as the plaintiff-insurer in our case, claimed that the written insurance policy delivered to the insured controls the issues since it contained an exclusion of liability for damage to property in the care, custody and control of the insured. The complaint in that case also alleged that the defense of the suit against the insured was tendered to the insurance company and refused, thereby causing monetary damage to the insured to the extent of the cost of defending the suit. In Brosam, and here, the insurer argued that parol evidence is inadmissible to vary the terms of the written contract which is the policy of insurance. However, the court in Brosam, at page 189, stated:

“There is no doubt that parol evidence is admissible to show the real agreement between parties when a mistake has been made in the written contract and the evidence is for the purpose of making the contract conform to the original intent of the parties. Mahon v. State Farm Mut. Automobile Ins. Co., 36 Ill.App.2d 368 on 376, et seq., 184 N.E.2d 718, and cases there cited.”

and pointed out that each case depends on the particular facts. The evidence in that case revealed that a Darrell Eaton was an agent of the defendant insurance company and was designated as an “authorized representative” in the policy the defendant-insurer contended was the whole contract. There was no evidence to the effect that Eaton was only a “soliciting agent.” Plaintiffs’ testimony was that Eaton said they could get a policy that would cover any horse they had in their custody or control. Further evidence was that the normal farm liability policy of the defendant-insurer covered the situation involved. There was no evidence to contradict this and it appears that all concerned thought the situation was covered. Upon considering this evidence and other evidence, the court stated at page 197:

“We hold that there was evidence from which the trial court could probably find that the defendant insurance company, through its authorized agents, held out to the plaintiffs that they were insured in reference to the specific situation in which the loss occurred, that there is no evidence whatsoever that such coverage was not normal or could not have been written or was not covered by the premium' paid. The Circuit Court was justified, from the evidence, in finding that the policy as written did not express the intent of the parties and should be reformed as provided in the decree.”

The Spence case relied upon by the plaintiff-insurer, in our case, is, referred to in the Brosarn case, but the court concluded that in considering the general legal principles for which the Spence and other cases were cited, it was still necessary to examine the evidence in the record to determine whether those principles applied to the factual situation before the court. The facts of the Spence case reveal that the insurance agent involved was not the “authorized representative” of the insurance company but, rather, was a “soliciting agent,” who was not an agent of the insurer or its employee. Thus, the factual situation involved in Spence is entirely different than the factual situation involved in Brosam. Both of those cases were decided after a full evidentiary hearing, while our case is before us on the pleadings only. The affirmative defense herein presents a factual question which can only be resolved by a trial on the merits. That trial will reveal whether the policy contains the real agreement by the parties thereto or whether the contract should be reformed to correspond to the original intent of the parties.

The plaintiff insurance company herein has conceded in its motion to strike and dismiss that if the allegations of the affirmative defense were true; and if Plains Cattle and Neuschwanger, its agent, were found guilty under the original cause of action and thereby required to pay the judgment, then the insureds would have a cause of action based upon the fraud and misrepresentation claimed in the affirmative defense against the agent of the plaintiff, Herschel Hopkins, or could file a third-party action based upon those charges.

We do not believe that the insured would have to defend themselves at their own expense in the original action and wait for a judgment to be entered against them, if one is entered, before beginning a lawsuit against the insurer for a reformation of the policy of insurance. The Illinois Civil Practice Act provides for the resolution of all disputes between the parties, if possible, in one lawsuit and discourages a multiplicity of actions, particularly when the controversy can be resolved in one lawsuit. Said Act also provides for amendments to the pleadings to correspond with the proof. Upon trial, the proof elicited in support of the affirmative defense may reveal that the insurance contract should be reformed to correspond with the intent of the parties and require the court to deny the relief sought by the plaintiff insurance company. Whether the exclusionary provision in the insurance policy should control or not control is dependent upon the proof of the facts set forth in the affirmative defense. The affirmative defense, therefore, presents a material fact which must be resolved as to the rights and liabilities of the insurer and insured before the declaratory judgment requested could be granted or denied. The trial judge was correct when on January 23, 1970, he denied plaintiff’s motion for summary judgment on the pleadings. His action in reconsidering that judgment six months later, and entering judgment on the pleadings in favor of the plaintiff, was, therefore, erroneous.

For the reasons given, the judgment of the circuit court of Carroll County is reversed and the matter remanded with directions to proceed in accordance with the views expressed herein.

Reversed and remanded, with directions.

MORAN, P. J. and SEIDENFELD, J., concur.


author: Mr. JUSTICE GUILD

text:
    Helen Kitzer, Plaintiff-Appellee, v. Phillip C. Kitzer, Jr., et al.,—(Plymouth Insurance Agency, Inc., Defendant-Appellant.)
    (No. 70-103;
    Second District
    October 20, 1971.
    Levin & Novoselsky, and Blumenfeld & Blumenfeld, of Chicago, for appellants.
    D’Ancona, Pffum, Wyatt & Riskind, of Chicago, for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

Plymouth Insurance Co., Inc. brings this appeal from an order of the trial court awarding the proceeds of sale of real estate in part to Exchange National Bank and in part to Helen Kitzer.

Helen Kitzer filed an amended complaint on August 21, 1968, for divorce from her husband and for other equitable relief against her husband, Phillip C. Kitzer Jr., her father-in-law, Phillip C. Kitzer Sr., and the Chicago Tide and Trust Company. Her complaint alleged that she and her husband purchased a home in Hinsdale, Illinois, in 1965 for the price of $47,000 and that title to the property was put in a land trust with the Chicago Title and Trust Company as trustee. She alleged further that on January 28, 1965, at the direction of her husband, then the beneficiary under the land trust, the Chicago Title and Trust Company as trustee executed a $35,000 note to bearer and trust deed to the Exchange Nnational Bank of Chicago. The purpose of this mortgage allegedly was to secure loans made by Exchange National Bank to Phillip C. Kitzer, Sr., her fatiier-in-law. On May 10th, 1965, her husband executed an assignment of his beneficial interest to Phillip Michael Kitzer, a minor child of the parties. Plaintiff alleged the defendants were perpetrating fraud upon her and that she would suffer damage unless the trust deed of record was declared void and removed as a cloud upon the title.

In a supplement to her amended complaint Helen Kitzer alleged that the $35,000 bearer note and trust deed were turned over to her father-in-law by her husband for safe keeping; that her father-in-law then turned them over for safe keeping to an officer of the Exchange National Bank. Plaintiff prayed that Exchange National Bank be made a party defendant and ordered to surrender the trust deed and note, and execute a release deed therefor.

The trial court granted a decree of divorce on December 19, 1967. On February 6, 1968, the Plymouth Insurance Agency, Inc., filed a motion for leave to intervene and alleged that the Plymouth Insurance Agency, Inc., on January 29, 1965, loaned the sum of $47,000 to plaintiff's former husband, Phillip C. Kitzer Jr., which was used by him to purchase the real estate. Plymouth Insurance Agency, Inc., further contended that it received the trust deed and note, and that Phillip C. Kitzer, Sr., placed the trust deed and note with an officer of the Exchange National Bank for safe keeping. Plymouth Insurance Agency, Inc., was granted leave to intervene and the defendant father-in-law, Phillip C. Kitzer, Sr., was dismissed as an individual party defendant.

It is to be noted that the Plymouth Insurance Agency, Inc., is a family corporation solely owned by Phillip C. Kitzer, Sr., and his two sons, Phillip C. Kitzer, Jr., and Joe Kitzer. On October 11, 1968, the tidal court ordered the sale of the property and retention of the proceeds until further order. The property was sold for a net amount of $39,292.99 and this sum was deposited with the clerk of the Circuit Court of the 18th Judicial Circuit, Du Page County. On November 14th, 1969, hearing was had to determine the respective interests, if any, of the Exchange National Bank, the Plymouth Insurance Agency, Inc., and Helen Kitzer in the proceeds of the sale of the real property. The Exchange National Bank called as its only witness, Norman F. Silbersdorf, a vice president, who testified he had martialed together the bank records which were submitted as exhibits. Plymouth Insurance Agency, Inc., called as its only witness, Phillip C. Kitzer, Sr., and the plaintiff, Helen Kitzer, called no witnesses and stood on the record.

The Bank offered six exhibits which were introduced into evidence. Among them was an appraisal of the Hinsdale real property (obtained by the bank on January 26, 1965); a $35,000 installment note dated January 29, 1965 payable to bearer with interest at 5%%; and a trust deed dated January 29, 1969, from Chicago Title and Trust Company, as Trustee, to the Exchange National Bank, as Trustee, recorded February 3, 1965. It was stipulated that the note and trust deed had been at the address, or within the physical confines, of the Bank since March, 1965. A bank margin card pertaining to Phillip C. Kitzer, Sr., kept for the purpose of recording collateral was admitted without objection for the limited purpose of showing an entry on the card of the Hinsdale real estate. A bank liability ledger sheet of Phillip C. Kitzer, Sr., was admitted without objection on which “Plymouth Ins. Agcy.” appeared at the top of the sheet and was stated by Mr. Silbersdorf to be “merely a cross reference.” Mr. Silbersdorf testified on the basis of the liability ledger sheet that Phillip C. Kitzer, Sr., was on the date of hearing indebted to the bank in the principal amount of $27,000. At first, Silbersdorf testified that the interest due was “about $12,000 in accrued interest.” Upon cross examination he testified however that the interest due “would probably be in the neighborhood of $3500.” This testimony was objected to by counsel for Plymouth on the ground that the question was not material or germane as Phillip C. Kitzer, Sr., was not a party to the litigation having previously been dismissed.

The margin card admitted into evidence contained erasures and lines drawn through entiles which the witness could not explain. He had no knowledge as to who had made the erasures or who had drawn the interlineations on the card. The bank clerk in the loan department who normally makes such entries was not called as a witness. Silbersdorf further could not testify as to the validity of the note and trust deed nor state how they had come into the bank’s possession.

Phillip C. Kitzer, Sr., who had been president of Plymouth Insurance Agency, Inc., since its inception, then testified that he had drawn a check on the Plymouth Insurance Agency, Inc., as payor, in the sum of $44,500 and used it to purchase a cashier’s check in the same amount from the Exchange National Bank on January 27, 1965. He gave this cashier’s check to the attorney for Plymouth Insurance Agency, Inc., a Mr. Richards, with instructions to use it for the purchase of the Hinsdale home for his son and to bring him a note and mortgage on the property payable to Plymouth Insurance Agency, Inc., in the amount of $35,000. He had previously furnished $2500 deposited as earnest money, and the earnest money and cashier’s check equalled the purchase price of $47,000. Subsequently, he said it was arranged with the attorney to have the $35,000 note made payable to bearer and the trust deed run to Exchange National Bank. The witness said anyone can be a trustee, that he just picked Exchange National because it was the bank for Plymouth Agency, the bank knew nothing of the arrangement, and it was his purely voluntary act not supported by any declaration of trust or trust agreement. The Bank obtained an appraisal of the real estate at his request about the end of January, 1965.

He testified, that at the time of hearing Plymouth Insurance Agency, Inc., owed the bank nothing and did not deny or rebut the testimony of the Vice-President of the bank concerning his existing personal indebtedness.

On cross examination, plaintiff s attorney produced two certified copies of gift tax returns filed June 8, 1966, with Internal Revenue Service by Phillip C. Kitzer, Sr., and his wife, which indicated that they made a gift of the house in Hinsdale to Phillip C. Kitzer, Jr., and Helen Kitzer, his wife, valued at $48,000. Phillip C. Kitzer, Sr., and Ms wife had each claimed in the return a $24,000 gift to the junior Kitzers. Plaintiff stood upon the record and called no witnesses.

On March 4th, 1970, the Mai court directed payment to Exchange National Bank of $27,000 on its claimed lien together with interest; the court denied the claim of Plymouth Insurance Agency, Inc., and directed payment of the $8792.99 balance remaining after payment of $30,500 to Exchange National Bank, to Helen Kitzer.

The Mai court found that Phillip C. Kitzer, Sr., made a gift in excess of $40,000 to Phillip C. Kitzer, Jr., and Helen Kitzer; that PMUip C. Kitzer, Sr., borrowed the funds from the Plymouth Insurance Agency, Inc., and that these funds were actuaUy tihe funds of Phillip C. Kitzer, Sr.; that the intention of PMUip C. Kitzer, Sr., was to make a gift to PMUip G. Kitzer, Jr., and Helen Kitzer in the sum of $48,000 as indicated by the gift tax returns filed and in evidence; that no loan was made by Plymouth Insurance Agency, Inc., to Phillip C. Kitzer, Jr., and/or Helen Kitzer, and therefore Plymouth Insurance Agency, Inc., was not entitled to any funds; that there was a valid trust deed in the sum of $35,000 together with installment note in the sum of $35,000 held as collateral security from Phillip C. Kitzer, Sr.; and that Phillip C. Kitzer, Sr., owed the Exchange National Bank the sum of $27,000 plus interest notwithstanding the fact that the trial court had previously dismissed Phillip C. Kitzer, Sr., as a party defendant to this suit; and that the Exchange National Bank of Chicago was the true and lawful owner of the aforesaid trust deed and was in possession of the installment note.

The findings of the trial court are inconsistent. The court first finds that Phillip C. Kitzer, Sr., made a gift “in excess of $40,000” to Phillip C. Kitzer, Jr., and his wife

“8 8 8 said gift to be used to accomplish the purchase of the real estate, which real estate is the subject matter of the controversies litigated by the parties above mentioned 8 8 8.”

The court then finds that there was

“8 8 8 in existence a valid trust deed in the sum of $35,000 together with installment note in the sum of $35,000 8 8 8.”

and

“8 8 8 That the Exchange National Bank of Chicago, a National Banking Association was the true and lawful owner of the aforesaid trust deed and note 8 8 8 and that there is now due and owing to Exchange National Bank of Chicago, a National Banking Association, the principal sum of $27,000 plus interest in an amount not less than $3,500.”

While this court has repeatedly stated that it will not substitute its judgment for that of the trial court, here we are unable to find in the record evidence that would substantiate the findings of the trial court. Without going into detail, the court is unable to reconcile the findings of the court with the evidence in the record before us. Additionally, we are unable to determine from the record and from the vague and incomplete testimony of the witness for the Exchange National Bank exactly how the Exchange National Bank came into possession of the note and mortgage. Attorney Richards, who purportedly drafted the note and trust deed for the Plymouth Insurance Agency, Inc., did not testify. Kitzer Sr. testified that he did not have the records of the Plymouth Insurance Agency, Inc. that would or might disclose the withdrawal of $44,500 from the Plymouth Insurance Agency’s bank account and its use by Phillip C. Kitzer, Sr., for the purchase of the property in question. The explanation of Phillip C. Kitzer, Sr., as to his use of Plymouth Insurance Agency’s funds is likewise vague and uncertain.

In American Smelting Co. v. Industrial Comm. (1933), 353 Ill. 324 at page 329, the court stated:

“Where a material question is in controversy upon a material issue and the record discloses that all the evidence on that issue has not been produced, this court has the power to reverse the judgment and remand the cause for the taking of further evidence on the part of either or both of the parties, upon the issues.”

See also Henry’s Drive-In Inc. v. Anderson (1962), 37 Ill.App.2d 113, 185 N.E.2d 103, at page 110; and People v. McGrath (1967), 85 Ill.App. 2d 388, 229 N.E.2d 14, at page 15.

The judgment of the trial court is reversed and set aside and the cause is remanded to the Circuit Court with directions to take such further evidence that the parties may choose to present.

Reversed and remanded with directions.

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


text:
    Linda L. Hindle, et al., Plaintiffs-Appellants, v. Leo Dillbeck, et al., Defendants-Appellees.
    (Nos. 70-225, 70-226 cons.;
    Second District
    October 20, 1971.

      Reid, Ochsenschlager, Murphy & Hupp, of Aurora, for appellants.
    Dale C. Flanders, of Aurora, and Robert F. Casey, of Geneva, for appellees.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

This appeal arises from a summary judgment for defendants grounded on the theory that plaintiffs are bound by applicable provisions of the Workmen’s Compensation Act in that plaintiff Hindle’s injuries and the death of Joyce Lynn Pakenham arose out of their employment and that their right to maintain a common-law action for negligence against their fellow employees and their employer is barred as a matter of law.

We have examined the pleadings, affidavits, and excerpts of depositions presented to the trial court to determine, when viewed most strictly against the moving party and most liberally toward opponent, as we are bound to do, whether there exists any genuine issue of material fact. (Giova v. Carroll (1969), 109 Ill.App.2d 259, 248 N.E. 2d 836; Ruby v. Wayman (1968), 99 Ill.App.2d 146, 240 N.E.2d 699; Ill. Rev. Stat. 1969, ch. 110, sec. 57.) Defendant has the burden of proving the affirmative defense relied upon, and we hold summary judgment was erroneous as the record below is not so free from doubt as to preempt defendant’s right to trial by jury and her right to fully present the factual basis of her case to the trier of fact.

The girls involved in this unhappy occurrence were 15 and 16 years of age at the time and were returning to their home community from their very first day of work in the field detasseling corn for one of the defendants, De Kalb Agricultural Association, Inc. Defendant Mary Dillbeck, a newly licensed driver, was operating a truck owned by her father, defendant in another action pending, which she had equipped with several lawn chairs and an old truck seat for the use of other girls riding with her in the back of the truck when it left the road, turned over and struck a utility pole. The plaintiff Linda Hindle was severely injured and a second passenger, Joyce Packenham whose administrator is plaintiff in the consolidated case, was killed.

As crew leader, Mary Dillbeck had power to hire and fire members of her crew; she was to provide them transportation from their home community to the various farms where the work was to be performed and supervise their work while in the fields. She was to be paid in a lump sum at the end of the season $5.00 per day for the use of a vehicle. Defendant De Kalb Agricultural Association, Inc. gave her a map indicating the location of the fields, did not prescribe the route, require her to present a driver’s license, nor inspect her vehicle. She and the other girls were to be paid at an hourly rate for time spent in the field plus time traveling in one direction only, Mary Dillbeck at $1.60 an hour and her crew members at $1.15 an hour. The one-way paid travel time could be applied either to going to or returning from the place of work, although De Kalb Agricultural Association, Inc. preferred paying time for the morning journey in case the workers wished to stop on their way home. On the particular day in question, the paid work and travel time ended when the girls left the field to begin their journey home. In the course of her deposition, plaintiff Linda Hindle stated she knew Mary Dillbeck was going to drive the girls to and from work, that they could ride with her if they wanted to, that nobody told her she could go to and from the field by means of other transportation, but nobody told her she couldn’t.

In this appeal, plaintiff claims existence of two material issues of fact for the jury, namely: (1) whether the minor plaintiffs were within the scope of their employment at the time of the accident, and (2) whether Mary Dillbeck was then the employee of De Kalb, and therefore plaintiff’s fellow servant, or an independent contractor. The second issue is sufficiently raised in the pleadings, we believe, by plaintiff’s alternative allegations that Mary Dillbeck was either the agent or servant of De Kalb, was lessor of the truck to De Kalb, or was an independent contractor to furnish the truck to De Kalb, plaintiff being uncertain as to the exact agreement between the parties it being in their exclusive possession. Existence of any written contractural agreement was denied by defendants. Mary Dillbeck’s answer claimed no knowledge, and De Kalb’s answer claimed insufficient knowledge, as to the truth of the plaintiff’s alternative allegations concerning legal relationships and therefore neither admitted nor denied but demanded strict proof. Plaintiff’s rationale is that although Mary Dillbeck and plaintiffs were all employees of De Kalb Agricultural Association while working in the field, Mary Dillbeck took on a different status as an independent contractor while driving her father’s truck, and the plaintiffs were no longer within the scope of their employment after they were signed out on the time sheet at 4:00 o’clock that afternoon, about 20 minutes before the accident. Other jurisdictions have held that the same person may be an employee in some phases of his work but an independent contractor in other phases of it. See 99 C.J.S. Workmen’s Compensation, Sec. 105.

No inflexible rule may be applied in all situations to determine whether a person is an employee or an independent contractor. The answer depends upon an analysis of the facts of the particular case. (Coontz v. The Industrial Com. (1960), 19 Ill.2d 574, 169 N.E.2d 94.) It is a vexatious question requiring consideration of many factors, such as whether compensation is on a time basis or by the job, the right to discharge, and the furnishing of materials, equipment or tools, and most importantly whether there is a right to control the manner of doing the work. O’Brien v. Industrial Com. (1971), 48 Ill.2d 304, 269 N.E.2d 471; Henry v. Industrial Com. (1952), 412 Ill. 279, 127 N.E. 714; and Immaculate Conception Church v. Industrial Com. (1947), 395 Ill. 615, 71 N.E.2d 70.

We agree with appellant that Sjostrom v. Sproule (1965), 33 Ill.2d 40, is not controlling in the instant case. Sjostrom does not preclude the existence of the question of fact here as to whether or not Mary Dill-beck was or was not an independent contractor or whether she was merely a fellow employee. That is a question for determination by the jury. “Whether an employee who is on the way to or from his place of employment is in the fine of his employment depends upon the circumstances of each case and is largely a question of fact.” Irwin Neisler & Co. v. Industrial Com. (1931), 346 Ill. 89, 92.

We believe reasonable minded persons might draw different inferences from the evidence presented to the trial court. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.) The purpose of a summary judgment is not to try an issue of fact, but rather, to determine whether one exists. Lumbermens Mutual Casualty Co. v. Poths (1968), 104 Ill.App.2d 80, 243 N.E.2d 40.

We therefore reverse and remand this cause with direction to vacate summary judgment for defendants and to proceed in a manner consistent with this opinion.

Reversed and remanded.

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


author: PRESIDING JUSTICE THOMAS J. MORAN

text:
    John Melson, Plaintiff-Appellee, v. Illinois National Insurance Company, Defendant-Appellant.
    (No. 71-5;
    Second District
    October 26, 1971.
    Matthews, Jordan, Dean, Eichmeier & Peterson, of Aurora, (Roger W. Eichmeier, of counsel,) for appellant.
    Ruddy, Myler & Bartsch, of Amura, for appellee.
   PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Defendant, Illinois National Insurance Company, appeals from a summary judgment entered in favor of the plaintiff, John Melson, in the amount of $10,000.00.

The facts in this case are undisputed. Plaintiff was injured in an automobile collision due to the negligence of an uninsured motorist. As a result of the accident, he allegedly incurred damages in the amount of $12,000.00 for medical expenses, $14,000.00 for lost wages and an unliquidated amount due to permanent disability.

At the time of the accident the plaintiff was insured by the defendant and the policy provided for uninsured motorists coverage with a limitation of $10,000.00 for each injured person and $20,000.00 for each accident. In addition the policy provided for medical payment coverage up to a maximum of $2,000.00 for each person. The defendant paid the plaintiff $2,000.00, the limit of medical coverage, and offered to pay only $8,000.00 under the uninsured motorists liability coverage. It is the position of the defendant that it may credit the $10,000.00 uninsured motorists liability coverage with the $2,000.00 already paid under the medical payment coverage. This contention is based upon subparagraph (d) of Part IV, Coverage J (uninsured motorists coverage) of the policy which states:

“(d) The company shall not be obligated to pay under this Coverage that part of the damages which the insured may be entitled to recover from the owner or operator of an uninsured automobile which represents expenses for medical services paid or payable under Part II (medical expense coverage).”

The plaintiff demanded the full $10,000.00 liability coverage but the defendant refused; therefore, a declaratory judgment action was instituted by the plaintiff. On a motion for summary judgment, the trial judge held that the defendant was obligated to pay the plaintiff $10,-000.00. The defendant appeals from that order.

The particular provision involved has never been interpreted by a reviewing court in Illinois. The defendant, in support of its position, cites three cases from other jurisdictions which dealt with a similar or the same provision. Boehler v. Insurance Company of North America (W.D. Ark. 1968), 290 F. Supp. 867; Robey v. Northwestern Security Insurance Company (W.D. Ark. 1967), 270 F. Supp. 466; Bacchus v. Farmers Insurance Group Exchange (Ariz. App. 1970), 467 P.2d 76.

In all of these decisions the issue being litigated was not the interpretation but whether the crediting provision was contrary to public policy. In the case at bar the plaintiff explicitly admits that the provision is valid. His conclusion might be a tenuous one, in view of the fact that we note that two separate premiums were paid for the uninsured motorists and medical payment coverage. (See, Tuggle v. Government Employees Insurance Co. (Fla. 1968), 207 So.2d 674.) However, the consequence of his confession of validity is that we are not called upon to decide if the provision violates public policy. Therefore, the thrust of these cases is of little consequence to our decision.

In addition, these cases cannot control or even influence our decision since they have all been either impliedly or directly overturned. The Boehler case, relies completely upon the decision rendered in the Robey decision. Both of these cases were decided by United States District Courts sitting in Arkansas and were attempting to interpret a question of state law without the benefit of any precedent from the Arkansas Supreme Court. Our research discloses the recent decision of Heiss v. Aetna Casualty and Surety Co. (1971), 465 S.W.2d 699, where the Arkansas Supreme Court held invalid the same medical expenses deduction provision which Robey and Boehler held valid. Therefore, at the present time Robey and Boehler are not “the law”. The Bacchus case also held the provision valid. However, we find that decision was reversed on review by the Supreme Court of Arizona in Bacchus v. Farmers Insurance Group Exchange (1970), 475 P.2d 264, holding that the clause was violative of public policy.

The defendant cites a fourth case which dealt with a similar provision. (Morgan v. State Farm Mutual Automobile Ins. Co. (La.App. 1967), 195 So.2d 648.) This is the only decision defendant cites concerning the provision which has not been overturned. However, it is distinguishable upon the fact that the insurance provision in that case was worded substantially different than the policy in the case at bar. In addition, as in Robey, Boehler and Bacchus, validity of the provision, and not interpretation, was at issue.

Although no decision involving the interpretation of the provision has been cited, our research has revealed three cases interpreting the identical provision appearing in plaintiff’s policy. (See, Taylor v. State Farm Mutual Automobile Ins. Co. (La.App. 1970), 237 So.2d 690; Hutchinson v. Hartford Accident & Indemnity Co. (1970), 312 N.Y.S.2d 789; Wittig v. United Services Automobile Association (N.D. Ind. 1969), 300 F. Supp. 679. These cases based their interpretations upon the rationale that;

“* * * [the medical payment crediting provision is] designed only to protect the insurance company from double exposure for medical payments. Thus it prevents an insured whose medical expenses have been paid under the Medical Payment Coverage from collecting for those medical expenses once again * * Taylor v. State Farm Mutual Automobile Ins. Co., supra, at 693.

The defendant in the case at bar does not disagree with this rationale since it has admitted that the provision is designed so that “medical expenses as an item of damages for bodily injury shall not be paid twice by the insurance company.”

Consequently, we must decide whether allowing the plaintiff the fuH $10,000 in liability coverage wiU be awarding him double payment for the $2,000.00 in medical expenses already received.

Plaintiff argues that he is not requesting a duplication because he stiU has at least $14,000.00 in lost wages and an unliquidated amount of damages in pain, suffering and permanent disability for which he has not been compensated. Thus, the $10,000.00 which he seeks is not money “which represents expenses for medical services paid or payable under Part II,” but is merely compensation for these other damages.

The defendant has admitted that the plaintiff’s damages are in excess of $12,000.00 and the trial judge found his damages to be greatly in excess of that amount. Since the plaintiff has been compensated for $2,000.00 of medical expenses he still has remaining a minimum of $10,000.00 in damages which have not been paid as medical expenses and are not payable as such since he has already exhausted his medical payment coverage. Therefore, regardless if the remaining $10,000.00 of his admitted damages is regarded as medical expenses, lost wages, damages for pain, suffering or for permanent disability, it is clear that double payment wiH not occur if the limit of uninsured motorists coverage is paid.

It follows that double payment can exist, and that therefore the deduction provision applies, only if the total amount of proven or undisputed damages does not exceed the total of uninsured motorists coverage and medical expense coverage. Indeed, this is the interpretation which Taylor, Wittig and Hutchison have aH placed upon the provision.

We hold that where the total proven or undisputed damages incurred by the insured are greater than the combined total of uninsured motorist and medical coverage, the crediting provision cannot apply. Since the defendant admits that the plaintiffs damages are in excess of $12,000.00 we affirm the summary judgment in the amount of $10,000.00.

Judgment affirmed.

GUILD and SEIDENFELD, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Rudy D. J. Barrios, Defendant-Appellant.
    (No. 71-50;
    Second District
    October 27, 1971.
    E. Roger Horsky, of Defender Project, of Elgin, for appellant.
    William R. Ketcham, State’s Attorney, of Geneva, (W. Ben Morgan, Assistant State’s Attorney, of Elgin, of counsel,) for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the Court:

The defendant Rudy D. J. Barrios entered a plea of guilty to the crime of indecent liberties with a twelve year old boy. He was represented by the Public Defender. Prior to the entry of his plea of guilty the defendant was properly admonished of his rights by the court. The defendant together with his counsel had entered into plea negotiations with the State’s Attorney. The trial judge did not take part in the negotiations. In open court the plea negotiations were presented to the trial judge and after considerable discussion they were approved by the court and the defendant was sentenced under the agreed plea negotiation to 7-10 years in the Illinois State Penitentiary.

While the defendant has lived a considerable time in Guatemala, he is an American citizen and has had at least three years of college, apparently being bilingual. Prior to the entry of the plea of guilty the defendant was examined by Dr. Werner Tuteur, a psychiatrist associated with Elgin State Hospital, and by Dr. F. P. Johnson, Clinical Instructor of the Department of Psychiatry, Loyola University Strich School of Medicine. They found him to be a pedophiliac but otherwise mentally capable and intelligent.

The defendant was convicted in the State of Wisconsin for indecent liberties with a girl under thirteen years of age and sentenced to three years in the Wisconsin State prison. In 1957 he was convicted of indecent liberties with a ten year old boy and sentenced to the Menard penitentiary where he served a period from 1957 to 1966. While this appeal was pending, the defendants counsel, the “Illinois Defender Project,” filed a motion stating that from a review of the record, it was found that the court personally and properly admonished the defendant of his rights before accepting the plea of guilty and that the plea was tendered and accepted in substantial compliance with Supreme Court rule 402. The Illinois Defender Project further found that the negotiated plea of guilty agreed upon a sentence of 7-10 years and was concurred in by the defendant. Counsel therefore moved the court for leave to withdraw as the appeal “would be unsuccessful, time consuming and wholly frivolous.” A copy of the motion was maüed for the appointment of other counsel which was denied by this court. The remainder of said motion was also to “sustain the withdrawal of ‘E. Roger Horsky’ ” (representing Illinois Defender Project).

This court has examined the record and transcript filed which discloses that neither defendant nor his counsel has presented any basis for reversal of the conviction herein based upon a voluntary negotiated plea.

This court has made a complete examination of the proceedings in accordance with the dictates of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, and the conclusion is that the possible legal points that might be raised are not “arguable on their merits” and that the appeal is “wholly frivolous.” (People v. Gray 102 Ill.App.2d 129.) Defendant’s attorney’s motion to withdraw is granted; defendant’s motion concurring therein is granted; and the judgment of conviction is affirmed.

Judgment affirmed.

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


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gregory L. Hackman, A Minor, Defendant-Appellant.
    (No. 71-8;
    Second District
    November 1, 1971.

      Cuve M. Glesser, of Rochelle, for appellant.
    John B. Roe, State’s Attorney, of Oregon, for the People.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Defendant, a minor, after being adjudged a delinquent, was placed on two years probation in July, 1969. The order of probation provided, in part, that defendant was to report monthly to tire probation officer and be home every evening by 10:00 o’clock, unless in the custody of a parent.

A petition for revocation of probation was filed in July, 1970. In the same month detention, adjudication and disposition hearings were held. At the conclusion of the adjudication hearing the court found that the defendant did not report to the probation officer in June, 1970 and that he left home, without permission, on May 3rd returning on May 5th. An order revoking probation was entered. The disposition order found:

“That the parents of said minor are unable for reasons other than financial circumstances alone, to care for, protect, train or discipline said minor, and that it is in the best interest of said minor and of the public that he be taken from the custody of said parents.”

and ordered the minor committed to the Department of Correction.

The evidence discloses that the defendant was 16 years of age, a junior in high school, living at home and a good student. He was placed on probation in July, 1969 and had reported regularly to the probation officer until May, 1970. On the day scheduled for reporting in May, defendant’s mother called the probation officer requesting that he be excused from doing so as an emergency arose on the farm and he was needed. The request was granted. At about the same time there had been a change in the day of the month that the defendant was to report. The testimony in the record on this point is conflicting as to whether the defendant understood the exact day on which he was to report. Nevertheless, he did not report in June, 1970.

On May 3, 1970, the defendant had a quarrel with his parents concerning a political subject and, late that day, left home and went to a friends house in Rockford. When he did not return that evening, his parents notified the local police. The next day the defendant telephoned his mother and told her of his whereabouts and both parents returned the defendant to his home on May 5, 1970.

The record further discloses that the parents raise tomatoes on their farm for commercial purposes and also carry on a fruit stand business. From May until the hearing, the defendant had been working at both operations between six and seven days a week, twelve hours a day, and except for the occasion of leaving home and failing to report in June 1970, the defendant has abided by the conditions of his probation. He had not violated any laws.

The defendant and both parents testified in opposition to the petition for revocation of probation.

The purpose and policy of the Juvenile Court Act is to secure for each minor care and guidance, preferably in his own home, that will serve his welfare and the best interests of the community and to remove him from the custody of his parents only when his welfare or safety or the protection of the public cannot be adequately safeguarded without removal. (Ill. Rev. Stat. 1969, ch. 37, par. 701 — 2). Section 5 — 10(1) of the Act (Ill. Rev. Stat. 1969, ch. 37. par. 705 — 10 [1]) provides for committment to the Department of Corrections and states:

“* ” * the court may commit him to the Department of Corrections if it finds that (a) his parents, guardian or legal custodian are unfit or are unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor, or are unwilling to do so, and (b) the best interests of the minor and the public will not be served by placement under section 5 — 7.”

Section 5 — 7 of the Act. (Ill. Rev. Stat. 1969, ch. 37, par. 705 — 7) provides for alternative dispositions that a trial court may impose rather than commitment to the Department of Corrections and the commitment section is to be employed only when the best interests of the minor and the public will not be served by placement under this section.

Section 5 — 11 of the Act (Ill. Rev. Stat. 1969, ch. 37, par. 705 — 11) provides that proceedings under the Act do not terminate until the child reaches 21 years of age unless terminated earlier by the court. The commitment herein could result in defendant’s confinement until he reaches age 21.

The State, in its brief, argues: “While the disposition imposed in this case is presumably the harshest provided under the Juvenile Court Act, this does not in and of itself lead to the conclusion that it is manifestly excessively and a great departure from the spirit and purpose of the Juvenile Court Act.”

From the factual background presented by the record herein we can not agree with the State’s analysis. Rather, we are of the opinion that the evidence did not substantiate the trial court’s findings as required by section 5 — 10(1) and its holding in the dispositional order was against the manifest weight of the evidence.

We, therefore, reverse the order and remand the cause for further proceedings consistent with the views herein expressed.

Reversed and remanded.

SEIDENFELD and GUILD, JJ., concur.


author: Mr. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leo Palmeri, Defendant-Appellant.
    (No. 70-233;
    Second District
    November 2, 1971.

      James L. Donohue, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, (Ronald T. Wade, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The People prosecuted the defendant, Leo Palmeri for three separate and distinct offenses involving failure to transfer title to motor vehicles in accordance with the provisions of Ill. Rev. Stat. 1967, Ch. 95½, pars. 4 — 103, 3 — 112, 3 — 113. The cases were heard by the court on the same day. Defendant was convicted of each offense. He was sentenced to five days on one offense, ten days on another and ninety days on the third, all to be served concurrently.

The three separate cases below were consolidated for this appeal. Defendant argues that the convictions should be reversed, or alternatively, that a new trial should be granted because (1) he was not advised of his right to an attorney at the time of trial; (2) he was tried on the three unrelated charges at the same time; and (3) no court reporter recorded the proceedings.

In case No. 16628 defendant was arrested on October 27, 1969, and charged with the violation of paragraph 4 — 103, supra. He appeared in court on January 7, 1970 with his attorney and waived a jury trial. The trial was set for February 13,1970, and on that date neither the defendant nor his attorney appeared. A bench warrant was issued and defendant appeared with his attorney on February 20, 1970, and the case was set for trial for April 14, 1970. Neither defendant nor his attorney appeared on that date. The court then set the case for a May 1st trial date. On May 1st the defendant appeared without his attorney. Trial was delayed one-half hour for defendant to secure an attorney. The defendant then went to trial without an attorney and was found guilty by the court.

In case No. 17234, the defendant was arrested on January 9, 1970, and charged with a violation under paragraph 3 — 112, supra. He appeared on February 20, 1970 with an attorney, and waived a jury trial. The case was set for April 14th together with the previous case. At that time neither defendant nor his attorney appeared and the case was reset for May 1st and then heard after the previous charge had been heard.

In case No. 17302, defendant was arrested on January 20, 1970, and charged with a violation of paragraph 3 — 113, supra. Defendant and his attorney appeared in court, waived a jury trial on February 19, 1970. The case was set for the same date as the previous charges, April 14th. At that time neither defendant nor his attorney appeared. Defendant and his attorney appeared, however, on April 15th to have the three cases set for a May 1st trial date.

On May 20, 1970 the defendant appeared with his attorney for a hearing in aggravation and mitigation at which time the sentences were imposed.

Defendant argues that the record must expressly show that he was advised of his rights to counsel at trial. However, no express waiver of counsel is required for offenses which are not punishable by confinement in the penitentiary. Ill. Rev. Stat. 1969, ch. 110A, par. 401(b); The People v. Dupree (1969), 42 Ill.2d 249, 256.

Although the three unrelated offenses were heard on the same date they were not consolidated for trial. Defendant’s argument that by setting the three cases for trial at the same time he was somehow prejudiced because of the increased penalties for second and third offenses (Ill. Rev. Stat. 1967, ch. 95½, par. 3 — 833) is without merit under the facts. We fail to see how trials on separate dates would have avoided the increased penalty for subsequent offenses. Moreover, the defendant was represented by counsel at the time the three cases were set for trial and no objection was made nor was there any motion for severance, thus waiving any objection to the procedure. See The People v. Woods (1961), 23 Ill.2d 471, 474.

Defendant’s contention that the record must show that the defendant was advised of his rights to have a stenographic court reporter present at the time of trial, is also without merit. Defendant argues that it is unfair to place the burden of preserving the record for appeal upon a defendant, as the cases have held (e.g. People v. Rockett (1967), 85 Ill.App.2d 24, 31-32) when he has not been advised of the right for a court reporter to be present and is proceeding without counsel. The apparent election of the defendant to proceed without counsel did not require that the court review for him all procedural methods. (See The People v. Richardson (1959), 17 Ill.2d 253, 260. No prejudice can be said to result since defendant had the right to secure a “by-standers” report of proceedings under Supreme Court Rule 323(c) for the purpose of his appeal, and apparently for strategic reasons chose not to do so.

The judgments below are affirmed.

Judgments affirmed.

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