author: MR. JUSTICE DRUCKER

text:
    Henry Davis, Plaintiff-Appellant, v. O. W. Wilson, Superintendent of Police, Chicago Police Department, etc., et al., Defendants-Appellees.
    Gen. No. 52,110.
    First District, Fourth Division.
    June 5, 1968.

      R. Eugene Pincham, Charles B. Evins, Glenn C. Fowlkes, and Earl E. Strayhorn, of Chicago, for appellant.
    Raymond F. Simon, Corporation Counsel, of Chicago (Marvin E. Aspen and RocLyne E. LaPorte, Assistant Corporation Counsel, of counsel), for appellees.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff appeals from a judgment entered on November 17, 1966, dismissing with prejudice his complaint which sought injunctive and declaratory relief from the order of the Superintendent of Police enforcing the decisión of the Police Board to dismiss plaintiff from the police force. In his order the trial judge said:

. . . the Court does not have jurisdiction of this cause and . . . the relief sought is encompassed in and governed by the Administrative Review Act (Illinois Revised Statutes 1965, Chapter 110, Paragraph 264 et seq.).

Plaintiff contends on appeal that (1) he showed equitable grounds for obtaining judicial review of the Chicago Police Board’s decision and that (2) even if the decision of the Police Board was valid the Superintendent of Police had lost the power to carry it out.

On March 1, 1966, plaintiff filed his complaint stating in relevant part that he had been a member of the Chicago Police Department since October 1954; that he had attained the position of Sergeant and had received many honors for performance of his duties; that he received a disabling injury while in the line of duty on April 30, 1961; that in November 1961 he was accused of being the father of an illegitimate child; that on March 2, 1962, formal charges were filed against plaintiff before the Police Board charging him with having had sexual relations with an unmarried minor female, not his wife, and that during the pendency of the charges he was suspended from the police force. The complaint stated that a hearing was held before the Board on August 10, 1962; that on September 11, 1962, plaintiff received an undated document purporting to be an order of the Police Board dismissing him; that later plaintiff went to the administrative office of the Police Department inquiring about the status of the document and was told that he would be informed later “whether and when said document or order would take effect, if at all, . . .” and that on November 23, 1962, the Superintendent of Police issued an order stating that plaintiff “. . . is hereby restored to duty effective 22 November, 1962 . . . following which plaintiff was restored to disability status and given disability pay. The complaint further alleged that because the notice plaintiff received did not state the date of the Board’s decision and because he was advised that the decision might not be enforced, he was prevented from seeking an administrative review of the decision; that on February 9, 1966, plaintiff was examined and found medically ready to be restored to active duty and that two days later he received an order from the Superintendent of Police discharging him from the Police Department in accordance with the decision of the Police Board of September 10,1962.

On April 4, 1966, defendants unsuccessfully moved to strike and dismiss the complaint and the cause was subsequently set for trial.

Plaintiff first contends that he is entitled to a judicial review of the Board’s decision. The statute conferring power on the Police Board (Ill Rev Stats 1961, c 24, §§ 10-1-18 and 10-1-45) expressly incorporates the procedures of the Administrative Review Act (Ill Rev Stats 1961, c 110, § 264 et seq.). Section 4 of the Administrative Review Act requires “the filing of a complaint . . . within thirty-five days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby. ...” Plaintiff admits that he received a copy of the Police Board’s decision on September 11, 1962, and that he did not file his complaint until March 1, 1966. Plaintiff points out, however, that the notice he received did not disclose the date of the Police Board’s decision, that he was subsequently advised that the order might not be given effect and that he was in fact ultimately reinstated in the police force. He contends that he was in this way deprived of his opportunity to comply with the Administrative Review Act and is therefore entitled to equitable relief. It is, however, well established that where the Administrative Review Act is expressly referred to in the act conferring power on an administrative agency the prior equitable modes of review cannot be obtained. People ex rel. Chicago & N. W. Ry. v. Hulman, 31 Ill2d 166, 201 NE 2d 103; People ex rel. Fike v. Slaughter, 31 IllApp2d 175, 175 NE2d 585; Moline Tool Co. v. Department of Revenue, 410 Ill 35, 101 NE2d 71. Nor do we find equitable grounds for dispensing with the requirements of the Act. The thirty-five day period within which plaintiff had to file his complaint in administrative review commenced not with the date of the decision but the date of his notification. Thus absence of the date of the Board’s decision from plaintiff’s notification is of no consequence. Furthermore, he would not be entitled to rely on the advice of an administrative officer of the Police Department that he would be told later “whether and when said document or order would take effect, if at all . . .” as a representation that the Board’s order would not be given effect and that there was no need for legal action to review the Board’s decision. Finally, even if plaintiff was confused about the permanence of his reinstatement, the order of reinstatement was issued more than a month after the period for filing a complaint in administrative review had expired. We do not believe that plaintiff is entitled to a judicial review of the decision of the Police Board.

Plaintiff also appeals from the order of January 18, 1967, denying his motion to vacate the judgment of November 17, 1966. In the trial court plaintiff filed a petition to vacate the judgment. In it he alleged for the first time that the Superintendent of Police lacked the power to enforce the decision of the Police Board. However, plaintiff failed to appear at the hearing on his motion to vacate the judgment and it was denied. No reason has been advanced for plaintiff’s failure to appear. Although we find no error in this ruling, we will discuss the arguments advanced in this court on this point.

Plaintiff points out that Illinois Revised Statutes, 1961, c 24%, § 51.1, provides in part that:

The findings and decision of the Police Board, when approved by said Board, shall be certified to the superintendent and shall forthwith be enforced by said superintendent.

He argues that this provision requires that the superintendent act immediately or lose authority to enforce the Board’s decision and that the superintendent “be estopped from attempting to exercise such power capriciously and at any later time which coincides with his personal whims and motives.” Plaintiff also argues that the order restoring him to the police force after his suspension , created a new relationship between him and the police force and that the prior decision of the Police Board had no bearing on this new relationship. The Superintendent of Police recognized that prior to the decision of the Board plaintiff had been injured in the line of duty and Under city ordinances had become entitled to disability pay. The Superintendent was advised by the Corporation Counsel of the City of Chicago that he could comply with both the Board’s order and the ordinance by restoring plaintiff to disability status and deferring enforcement of the Board’s order until plaintiff was no longer disabled. Plaintiff remained on medical leave and received disability pay for more than three years. We cannot find that the Superintendent’s reinstatement of the officer for the purpose of enabling that officer to receive disability benefits precluded the Superintendent from enforcing the Board’s decision after the medical disability ended nor that it created a new relationship. Furthermore, even if the Superintendent were under a statutory mandate to act immediately it would not follow that his ultimate compliance with the Board’s decision was ineffective under the circumstances of this case.

The judgment of the Circuit Court is affirmed.

Affirmed.

McCORMICK, P. J. and ENGLISH, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    The Hearst Corporation, a Corporation, Plaintiff-Appellee, v. Associated Trade Press, Inc., a Corporation, Defendant-Appellant.
    Gen. No. 52,571.
    First District, Fourth Division.
    June 5, 1968.

      Eugene F. Welter, of Chicago, for appellant.
    Arthur Abraham and Kurt J. Salomon, of Chicago, for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant appeals from a summary judgment granting plaintiff an injunction restraining defendant from selling, soliciting or taking orders for plaintiff’s magazines. On appeal defendant contends that its motion to strike plaintiff’s affidavits in support of a motion for summary judgment should have been granted, that plaintiff’s motion for summary judgment should have been denied, that defendant’s motion to strike the complaint should have been granted, that defendant was not afforded a fair opportunity to file an answer to plaintiff’s motion for summary judgment, and that the injunction was too broad for its intended purposes.

Plaintiff’s complaint stated that it owned and published a number of magazines, that in order to regulate and prevent abuses in magazine solicitation it joined with other publishers to form an association known as Central Registry, that this association did not violate the Antitrust Laws, that it included reputable subscription agencies and that defendant had been a member agency but had resigned from the Central Registry in 1954. The complaint further alleged that in 1949 defendant had been the subject of an order of the Federal Trade Commission requiring that it cease and desist from soliciting magazine subscriptions without properly filling the subscriber’s order; that on December 13, 1966, the Federal Trade Commission had filed suit against defendant seeking damages for violation of its cease and desist order; that the files of various better business bureaus, including the Chicago Better Business Bureau as well as the files of Central Registry, contain numerous complaints alleging that defendant had accepted and retained money without filling subscriptions and had used unethical techniques in soliciting subscriptions; that some of the complaints involved plaintiff’s magazines; and that plaintiff never received any of the money the complaining subscribers had paid to defendant. The complaint further stated that in 1964 defendant had told plaintiff that it would no longer sell plaintiff’s magazines but that it had persisted in doing so; that defendant’s agents had expressly or impliedly represented themselves to the public as being authorized by plaintiff to solicit subscriptions ; that plaintiff has an absolute right to employ only those whom it wishes to sell its magazines and to prevent such implied or express misrepresentation; that the association between plaintiff and defendant in the public mind together with defendant’s reputation for illegal and unethical conduct causes irreparable harm to plaintiff’s goodwill and business and that defendant should be enjoined from soliciting subscriptions for plaintiff’s magazines.

Defendant moved to strike the complaint and to dismiss on the ground that no cause of action was stated. The motion was denied and defendant filed its answer alleging that the cease and desist order against it was entered pursuant to a consent decree, that a motion to strike the complaint alleging that defendant had violated the cease and desist order was still pending, that plaintiff had been willing to enter into a contract with defendant for the solicitation of magazine subscriptions but defendant felt that the contract was unfair and that plaintiff had not established valuable goodwill. Its answer stated further that defendant had insufficient knowledge to deny and demand strict proof of the existence of the complaints plaintiff referred to; that it turned over to the appropriate publisher all monies received for subscriptions and that its agents did not represent themselves, either expressly or impliedly, as authorized agents of plaintiff. Finally, defendant denied that it had a reputation for illegal and unethical activity, that its reputation was causing plaintiff irreparable harm through the association between plaintiff and defendant in the mind of the public and that there was no adequate remedy at law. Defendant also filed an affirmative defense alleging that plaintiff was attempting to enforce the provisions of the Central Registry in this suit and that Central Registry was in violation of the Federal Antitrust Laws.

Plaintiff filed a reply denying that the terms of Central Registry violated the Antitrust Laws and then made a motion for summary judgment supported by affidavits. Defendant’s motion to strike the affidavits was denied and plaintiff’s motion for a summary judgment was granted simultaneously.

Defendant first contends that its motion to strike the affidavits plaintiff submitted in support of its motion for summary judgment should have been granted. The sufficiency of such affidavits can be tested by a motion to strike. Scharf v. Waters, 328 Ill App 525, 66 NE2d 499. In its motion defendant correctly stated the rule that the affidavit:

. . . shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto. If all of the facts to be shown are not within the personal knowledge of one person, two or more affidavits shall be used. (Ill Rev Stats, c 110A, § 191(a) (1967).)

Plaintiff produced six affidavits. The affidavit of Robert M. Goshorn, secretary of Central Registry, contained the minutes of a meeting of that organization at which one of the participants stated that there were complaints against defendant. This was a repetition of the statement of an unsworn witness and should have been stricken. The affidavit of Kurt Salomon contained letters affiant had received from various better business bureaus listing complaints against defendant that had been filed with the respective bureaus. The other affidavits contained letters either received initially by plaintiff or forwarded to plaintiff containing complaints that subscriptions had been paid for but the magazines never received. The contents of these letters were the statements of the senders and not evidence that could be testified to by the affiant. However, since the affiants saw these complaints, they are competent to testify to their existence. The existence of these complaints, regardless of the truth of their content, is relevant to the nature of defendant’s reputation and the possible harm that could come from defendant’s misrepresentation of agency. These portions of the affidavits were correctly sustained against the motion to strike.

Defendant’s next contention is that the motion for summary judgment should have been denied. In Zemel v. Chateau Royale Corp., 35 Ill App2d 313, 182 NE2d 383, the court said at page 315:

Summary judgment should not be entered unless “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law.” (Ill Rev Stats, c 110, § 57 (3) (1961).) Moreover, the right of the moving party must be free from doubt, and accordingly, the supporting affidavits are to be construed most strongly against the movant and the entire record must be considered. J. J. Brown Co., Inc. v. J. L. Simmons Co., Inc., 2 Ill App2d 132, 118 NE2d 781. (Emphasis ours.)

Defendant argues that material issues of fact exist requiring denial of plaintiff’s motion. Defendant’s answer denied (1) that it had caused plaintiff irreparable injury; (2) that its agents misrepresented themselves; (3) that it was associated with plaintiff in the mind of the public; (4) that it wrongfully retained money for unfilled subscriptions; and (5) that it had a reputation for illegal or unethical dealings. Although portions of plaintiff’s supporting affidavits stated that many complaints were filed against defendant, these do not, by themselves, establish a reputation for illegal or unethical conduct. We believe that these material questions of fact precluded the granting of plaintiff’s motion for summary judgment.

Because defendant conceded at oral argument that the complaint stated a cause of action we need not consider its contention that its motion to strike the complaint should have been granted. We find it unnecessary to consider any of defendant’s remaining contentions.

The judgment of the Circuit Court is reversed and the cause remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

McCORMICK, P. J. and ENGLISH, J., concur.

       The articles of agreement of the Central Registry explicitly provide that each publisher may deal with nonmember subscription agencies.


author: JUSTICE SCHWARTZ.

text:
    The Metropolitan Sanitary District of Greater Chicago, a Municipal Corporation, Plaintiff-Appellant, v. Tim, Inc., an Illinois Corporation, Defendant-Appellee.
    Gen. No. 51,643.
    First District, Third Division.
    June 6, 1968.
    George A. Lane, of Chicago (Fred F. Herzog, of counsel), for appellant; Thomas C. Bradley, of Chicago, for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


author: MR. JUSTICE SCHWARTZ

text:
    Michigan Mutual Liability Co., a Corporation, Plaintiff-Appellant, v. Hoover Bros., Inc., a Corporation, J. Phil Hoover, Dick B. Hoover, Derald McGlauchlen, Lillian A. Russell, as Conservator of the Estate and Person of Harold Russell, Incompetent, and John R. Kern, Defendants-Appellees, and Illinois National Casualty Company, a Corporation, Defendant-Appellee and Cross-Appellant.
    Gen. No. 51,660.
    First District, Third Division.
    June 6, 1968.
    Rehearing denied June 28, 1968.

      Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (Perry L. Fuller and D. Kendall Griffith, of counsel), for appellant Michigan Mutual Liability Company.
    William P. Nolan, Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for Illinois National Casualty Company.
    Richard Shaikewitz, Wiseman, Hallett, Mosele, Shaikewitz & Struif, of Alton, and Schwarz & Self, of Jerseyville, for Lillian A. Russell, as Conservator of Estate of Harold Russell, Incompetent.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Michigan Mutual Liability Company (Michigan Mutual) instituted this suit for a declaratory judgment. It seeks a finding that it is not obligated under a policy issued to Hoover Bros., Inc. to defend and indemnify the insured in an action arising from a collision involving a truck owned by the insured. It contends that a policy of insurance issued by the defendant Illinois National Casualty Company (Illinois National) to J. Phil Hoover and Dick B. Hoover, d. b. a. Hoover Brothers (a partnership separate and distinct from Hoover Bros., Inc.) covers the risk in question. Illinois National likewise contends that its policy does not cover the risk. The trial court held that both policies covered the risk and indemnified their insureds for the liability incurred. Both insurance companies have appealed. The facts follow.

J. Phil Hoover and Dick B. Hoover conduct their business through two entities — a corporation known as Hoover Bros., Inc. and a partnership known as Hoover Brothers. The corporation is a dealer in farm implements, while the partnership is engaged primarily in livestock and general hauling. Both are located in Milton, Illinois. On September 19, 1961, the partnership required an extra vehicle for use in the cartage business and to meet that temporary need borrowed from the corporation the truck involved in the accident. John R Kern, an employee of the partnership, was driving the truck loaded with livestock when in Jerseyville, Illinois, it struck Harold Russell, a pedestrian, who by his conservator instituted the personal injury action.

Michigan Mutual’s contention that its policy does not provide coverage for the accident is based on the following clause in its policy, referred to as an “exclusion” clause:

“This policy does not apply:
“(c) under coverages A [bodily injury liability] ... (1) to the use by the insured of any automobile as a public or livery conveyance or for carrying property for a charge. . . .”

It argues that the operator of the vehicle was carrying property for a charge and that coverage for such activity was specifically excluded by the terms of the policy. It further contends that the language of the exclusion is unambiguous; that it must be applied as written and that so applied, it absolves the insurance company of any liability arising from the carriage of property for hire. Notwithstanding the contention that the exclusion is clear and requires no interpretation, it appears to us that we must consider other portions of the policy and the prior negotiations between the parties in order to determine the limits of the coverage.

The Michigan Mutual policy is described as a garage liability policy covering, among other risks, those attendant on the operation of an automobile dealership, repair shop or parking garage, together with the use of any vehicles in connection with the business. Coverage is also extended to incidental and nonbusiness use of vehicles under various circumstances. The negotiations conducted prior to the issuance of the policy reveal the nature of the activities intended to be covered as incidental operations, and we proceed to a consideration of those negotiations.

Prior to 1958 Hoover Bros., Inc. was insured through a different company. In October 1958 the King Gem Insurance Agency, the agency with which the Hoover brothers dealt, asked Michigan Mutual to quote a premium for the liability coverage, with a view to transferring the account from the previous insurer to Michigan Mutual. In its letter, the King Gem Agency described Hoover Bros., Inc. as an implement dealership which was also engaged in seasonal fertilizer hauling and spreading activities. In addition, the agency pointed out that the corporation was engaged in occasional cartage work under a so-called “grandfather permit.” The letter further stated as follows:

“This operation also has been covered under the auto garage policy and I am wondering whether your company would consider these two operations as incidental operations. Please let me know your answer at your earliest convenience.”

On the back of the letter from the King Gem Agency, Michigan Mutual replied as follows:

“The garage liability quote contemplates coverage for the operation outlined in the last paragraph of your letter of October 15, 1958. These two operations will be considered incidental to the normal garage liability coverage.”

The Michigan Mutual policy thereafter issued expressly covered injury or death arising from all operations necessary to the business, including the risk incurred through the occasional use of any automobile for incidental business purposes and the use for nonbusiness purposes of any automobile owned by or in charge of the named insured and used principally in the business activities defined in the policy.

It is clear from the correspondence between King Gem Agency and Michigan Mutual that the insurance company anticipated that the insured vehicles would be used a certain portion of the time for freight hauling and that coverage for that risk was included in the computation of the insurance premium. Michigan Mutual contends that the correspondence was excluded from evidence and that a policy of insurance may not be amended by parol. The trial court did exclude the letters at one point in the hearing, but he included them- in his ultimate finding of fact. From this we must conclude that he changed his mind and admitted the evidence. In so doing it is our opinion that he reached the right conclusion. While an insurance policy may not be amended by parol evidence, prior negotiations may be admitted when interpretation is involved. In a mass produced form contract of insurance, terms such as “incidental operations” or “other business purposes” are intentionally general and broad so that the form of contract used may be adapted to the peculiar needs of the insured. The nature of such operations varies with the nature of the insured’s business and accordingly it is proper to consider evidence of the intentions of the parties as to the application of catch-all clauses. The court correctly resolved the issue here.

Where a policy of insurance is interpreted by the agent of the company as covering the risk described by the insured, the insurance company is bound by that interpretation unless the contrary interpretation is specifically brought to the attention of the insured or is manifest from the plain language of the contract. Insurance policies are unique in that while no contract is more commonly used, few are less frequently read. Their provisions are generally involved and difficult to fathom. The reason for that phenomenon was discussed in Maretti v. Midland Nat. Ins. Co., 42 Ill App2d 17, 190 NE2d 597, in which a homeowner’s policy was issued to an itinerant exhibitor of fireworks for the purpose of covering the risks of his business. By reference, cross reference and recross reference to other sections, the insurance company argued that the accident involved was not covered. We refused to embark on that perambulatory journey of interpretation and held the insurer to the coverage obviously intended. It may be, as was argued in that case, that a document designed to cover a vast variety of risks is desirable since the cost of the insurance may then be dispersed throughout a larger group of policyholders, but it also results in a document which can be deciphered only by an expert. We hold that the policy issued by Michigan Mutual in the case before us covered the accident in question.

We proceed to consider whether the policy issued by Illinois National to the Hoover Brothers partnership also covers the risk. The Illinois National policy, captioned “Automobile Policy,” was issued to J. Phil Hoover and Dick B. Hoover, d. b. a. Hoover Brothers. A list of the insured vehicles was therein set forth, but the truck here involved was not scheduled. Illinois National contends that the policy therefore does not cover the risk. The policy was amended, however, by two endorsements designed to extend the coverage to the risks involved in trucking and common carrier operations. It is argued that these endorsements operate to provide coverage for vehicles used in the cartage business whether they are scheduled in the insurance policy or not.

The first endorsement, entitled “Truckmen (interest covered) ” provides in part:

“Such insurance as is afforded by the policy for an owned automobile or a hired automobile shall apply to the named insured and to any other person including any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission. . . .”

The endorsement then defines “hired automobile” as “an automobile used under contract in behalf of, or loaned to, the named insured. . . .”

It appears that the truckmen’s endorsement was necessary to adapt an ordinary automobile liability policy to the needs of a common carrier, and the endorsement clearly supersedes many of the provisions of the basic policy. Illinois National argues nonetheless that under strict application of the endorsement, coverage is not extended to the instant occurrence. Our reading of the endorsement leads to the opposite conclusion.

The endorsement in question provides first that any person or organization using an owned or hired vehicle with the permission of the named insured is afforded liability coverage. There follows thereafter a series of noncoverage clauses limiting coverage in those situations in which the vehicle is being operated by a person other than the named insured. Illinois National relies on the first of these clauses to disclaim liability, but that non-coverage clause does not apply to “an employee of the named insured.” John R. Kern, the driver of the vehicle, was an employee of the named insured and was driving a “hired” vehicle in the business of the partnership when the accident occurred. This was an exception to the exception contained in the truckmen’s endorsement and accordingly the risk was covered by the policy.

Another point raised, somewhat parenthetically, by Illinois National is that clause (d) of the truckmen’s endorsement expressly excludes the owner of any hired automobile. We need only note that the owner of the vehicle in question was not operating it when the accident occurred and hence clause (d) has no application here. The insurance policy covers the accident by virtue of the truckmen’s endorsement and we need not consider the effect of the second endorsement which was required by the Illinois Commerce Commission.

Insurance policies should be construed strongly against the draftsman and any exceptions to the general area of protection must be stated in such language and bold type as to warrant the conclusion that the insured must have understood and accepted them. Forest City Ins. Co. v. Hardesty, 182 Ill 39, 55 NE 139; McAllister v. Hawkeye-Security Ins. Co., 68 Ill App2d 222, 215 NE2d 477; Maretti v. Midland Nat. Ins. Co., 42 Ill App2d 17, 190 NE2d 597.

The judgment of the trial court is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SULLIVAN, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Floyd Clark (Impleaded) Defendant-Appellant.
    Gen. No. 51,770.
    First District, Third Division.
    June 6, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

The defendant Floyd Clark was indicted jointly with Mae Frances Hall for armed robbery. Codefendant Hall was subsequently found incompetent and was not brought to trial. Clark waived his right to trial by jury, was found guilty and sentenced to serve from two to twelve years in the penitentiary.

The sole contention raised on this appeal is whether the court erred in admitting testimony relating to defendant’s acquaintanceship with Miss Hall. Defendant contends that the testimony was improper since Miss Hall was not specifically identified as a participant in the alleged robbery and was not on trial herself. He argues that the testimony regarding his association with her improperly corroborated the State’s case and gave rise to an unwarranted inference of guilt. The facts follow.

On January 22, 1966, Robert Hurnes was in a tavern at the corner of Madison Street and Albany Avenue in Chicago. Some time after midnight he left the tavern and walked along Albany Avenue until he reached the alley at the rear of the tavern. At that point a woman whom he recognized as having been in the tavern earlier in the evening approached him, produced a small container from her purse and sprayed a substance in his eyes, temporarily blinding him. He was then assailed by a number of men who tore his clothing and demanded his money. He testified that he was unable to get a clear look at any of the attackers, but noticed that the man who was actually holding him down spoke as though he had a cold. He further observed that this assailant was wearing trousers with a stripe down the side, which appeared to be part of a uniform. That man, whom the witness positively identified as the defendant, was the last to leave him in the alley when the other assailants fled. Immediately upon being released, the victim arose and without losing sight of his attacker, followed him into the tavern, confronted him and accused him of the robbery. Hurnes identified the defendant to the police as one of his assailants and described the woman who had first accosted him at the entrance to the alley. Shortly thereafter the police apprehended the codefendant Mae Frances Hall.

Defendant Clark testified that he was walking north along Albany Avenue approaching Madison Street when he heard sounds from an alley and saw Hurnes trying to get up from the pavement; that he helped Hurnes up and took him to the tavern, where he met a group of friends, and that Hurnes then confronted him and identified him as one of the robbers. Clark said he called the police, but when they arrived he found himself taken into custody. He also said he had come from his employment as a parking lot attendant and was wearing his work uniform at the time of his arrest.

On cross-examination Clark was questioned by the attorney for the State with respect to the circumstances surrounding his arrest. He testified that shortly after his arrest the police arrested the codefendant Mae Frances Hall. He further testified that he had known Miss Hall for a week or two prior to the arrest. Defense counsel objected to that line of questioning on the ground that the case against Miss Hall had not been tried because of her mental incapacity. In overruling the objection the court said, “it was alleged she was a participant and a co-defendant.” Following the court’s ruling there was no further testimony relating to Miss Hall.

It is argued that the testimony tended to show that the defendant had a female acquaintance present and available at the time of the robbery to serve as an accomplice to the crime and that this relationship between the parties had no probative value in the absence of any evidence that the codefendant was the woman who sprayed the noxious substance in Humes’ face. The cross-examination of a defendant is generally confined to matters brought out on direct examination, but the latitude allowed in cross-examining on appropriate subjects of inquiry rests largely in the discretion of the trial court. People v. Provo, 409 Ill 63, 97 NE2d 802.

Evidence regarding Miss Hall’s role in the alleged crime was germane to the issues on trial and testimony regarding her whereabouts or her relationship with Clark was not rendered irrelevant merely by the finding that she was incompetent to stand trial. The only conclusion to be derived from the defendant’s testimony on that point is that the codefendants were acquainted and that both of them were arrested at approximately the same time.

The evidence shows that Hurnes followed the defendant from the scene of the crime to the tavern where he identified the latter as a perpetrator of the robbery and that he again identified him at the trial. The positive identification of one credible witness is sufficient to support a conviction for robbery even though such testimony is contradicted by the accused. People v. Lamphear, 6 Ill2d 346, 128 NE2d 892; People v. Williamson, 78 Ill App2d 90, 223 NE2d 453.

The judgment is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SULLIVAN, J., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    Dorothy Woodward, Plaintiff-Appellee, v. Charles E. Woodward, Defendant-Appellant.
    Gen. No. 52,770.
    First District, Third Division.
    June 6, 1968.
    Ditkowsky & Contorer, of Chicago (Kenneth K. Ditkowsky, of counsel), for appellant.
    Walter E. Wright, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The plaintiff was granted a divorce and the decree incorporated alimony and property stipulations previously entered into by the parties. Fourteen months thereafter the defendant petitioned for a modification of the alimony payments because of his changed circumstances. Additional pleadings developed the point that the plaintiff, who was not working at the time of the decree, was gainfully employed. After a hearing the court reduced the monthly amount payable to the plaintiff but provided in its order that the alimony would revert to the amount allowed by the decree in the event the plaintiff should cease being employed.

The defendant appeals from that portion of the order which nullifies the modification if the plaintiff stops working. He argues that this enables the plaintiff to determine her future alimony by quitting or retaining her employment, that this obviates the need for her to file a petition alleging a change in circumstances, that it is an indefinite order which delegates the court’s power and jurisdiction to her, and that this denies his constitutional right to equal protection of the laws.

His appeal was taken to the Supreme Court and was transferred here on the finding that no substantial constitutional question was involved.

Although the plaintiff filed notice that she would cross-appeal from that part of the order reducing her decretal alimony (on the ground that the order violated the contractual stipulation of the parties) she neither pursued the cross-appeal nor contested the defendant’s appeal. No brief was filed in her behalf either in this court or in the Supreme Court.

Under this posture of the case the contentions of the defendant are not contested and it is not necessary for us to consider them. When an appeal is perfected and the appellee does not submit an answering brief, the reviewing court may reverse the judgment without further explanation of the merits of the appeal. Werbeck v. Werbeck, 70 Ill App2d 279, 217 NE2d 502 (1966); Wieboldt Stores v. Mautner, 61 Ill App2d 368, 210 NE2d 597 (1965); Ogradney v. Daley, 60 Ill App2d 82, 208 NE2d 323 (1965); 541 Briar Place Corp. v. Harman, 46 Ill App2d 1, 196 NE2d 498 (1964).

The provision of the order relating to the future employment of the plaintiff is reversed. The cause is remanded with instructions to expunge this provision from the order.

Reversed and remanded with directions.

SCHWARTZ and SULLIVAN, JJ., concur.


author: TRAPP, J.

text:
    People of the State of Illinois, Plaintiff, v. Abe Rice, Defendant. People of the State of Illinois, Petitioner-Appellee, v. Delars J. Bracy, Respondent-Appellant.
    Gen. No. 10,902.
    Fourth District.
    June 12, 1968.
    Rehearing denied July 10, 1968.

      R. Eugene Pincham, Earl E. Strayhorn, Charles B. Evins, and Sam Adam, of Chicago for appellant.
    John J. Bresee, State’s Attorney, of Urbana, for appellee.
   TRAPP, J.

Respondent appeals from an order finding that he wilfully and contumaciously failed to appear in court upon the date set for trial of one Rice, charged with forgery. The court imposed a fine of $100 for criminal contempt.

The essential question is whether the respondent was, in fact, properly considered an attorney of record for the defendant Rice upon the indictment to be tried. The issue is created through the following facts upon which there is no substantial dispute. Respondent is an attorney residing and practicing law in Cook County. Rice and two others were arrested upon complaints charging forgery and respondent made appearance in the magistrate division of Champaign County in behalf of such defendants on November 21, 1966, apparently as the result of the efforts by the family or a friend of defendant, Rice. Motions for the reduction of bonds were subsequently made and on November 29th respondent participated in the preliminary hearings before the magistrate, at which time defendants were bound over to the grand jury. Respondent, thereafter, filed habeas corpus proceedings in behalf of each defendant in the general division of the circuit court to reduce the bonds. An indictment was returned as to Rice on December 20, 1966, and arraignment was set for December 28, 1966. Respondent received notice, apparently in the form of a letter, from the State’s Attorney, but did not appear at the arraignment. Respondent admitted that he had made no motion to withdraw as counsel following the indictment, and that there was no oral or written advice to the defendant Rice that he would not appear to defend.

On February 23, 1967, the Rice indictment was set for trial on March 13th, and on February 27th the State’s Attorney’s office sent a letter:

"... mailed according to an affidavit of mailing attached thereto, to Abe Rice and Delias (sic) C. Bracy.”

This letter is not in the record.

On March 9th, in a telephone conservation with the Assistant State’s Attorney handling the Rice matter, respondent stated that he was not representing the defendants upon the indictments. In a statement to the court made on March 13th, the Assistant State’s Attorney characterized respondent’s statement that he was not defending Rice as clear and definite, and further advised that respondent had so told a member of Rice’s family or a friend.

The record shows a statement of the Assistant State’s Attorney that he advised the court on March 10th of respondent’s position, although the court’s finding is that the court was first advised that respondent was not appearing, in a telephone conversation on March 14th. In the telephone conversation on March 9th, the Assistant State’s Attorney stated to respondent that in the former’s opinion he was still bound to defend the cases.

On March 13th, the Rice indictment was called for trial, with jurors on hand, but respondent was not present. The trial was recessed while a telephone call was placed to his office, but respondent was absent and the call was not returned that day. Thereupon the court, by docket entry, ordered a citation returnable on March 16th to issue requiring respondent to show cause why he should not be held in contempt for failure to appear for the trial of Rice.

Upon March 14th, respondent returned the telephone call made by the trial judge on the previous day, at which time he advised that he did not represent Rice.

It is not helpful to discuss at length the opposing views of the briefs as to whether or not these proceedings should be classed as direct or indirect contempt. It is apparent that the trial judge was required to consider extrinsic evidence as to matters of fact not within his personal knowledge so that the requirements of due process were invoked, i. e., reasonable notice, the right to counsel, pleadings as appropriate and the examination of witnesses. People v. Skar, 30 Ill2d 491, 198 NE2d 101; People v. Buster, 77 Ill App2d 224, 222 NE2d 31; People v. Gholson, 412 Ill 294, 106 NE2d 333.

While the record shows receipt by respondent on March 16th of the clerk’s notice setting the citation for that morning, and that he thereafter travelled to Champaign to appear at such hearing, it also appears that he was advised by a telephone conversation with the trial judge on the morning of March 14th that a citation had issued and that he should appear on March 16th. He appeared without counsel. There was no motion for continuance for purposes of preparing an answer or other appropriate pleading, and no request that witnesses be sworn or cross-examined. He made no objection to proceeding through statements by himself and the Assistant State’s Attorney to the court, and by colloquy between the court and himself. Under such circumstances no issue of due process was preserved upon review.

It is the position of the trial judge that:

“So far as this case of Abe Rice is concerned this is a continuing matter on the docket sheet. ... it starts with November 18, 1966. ... on November 21st, it was called by agreement and you were down here. This was the first appearance, your first appearance here so far as the docket entries show.”

Neither the order of the trial court, nor any reference in the record, announces any statute or published rule providing the procedure employed in Champaign County.

Respondent stated to the court that he had not appeared for trial on March 13th, because it was his experience in the procedure in his own community, and his understanding of the law that after the return of the indictment of Rice he would be required to make a new appearance for the purposes of the disposition of that matter, and that following indictment he had made no appearance and had taken no steps to represent the defendants.

Without discussing the practice whereby notice of trial settings are dispatched through the office of the State’s Attorney, it is noted that the record relating to the letter setting the trial date appears to have been sent to Rice and the respondent. It does not appear in the record whether such letter was, in fact, principally addressed to Bracy as attorney. The record further shows that the arraignment of Rice, scheduled for December 28, 1966, was not had on such date, and had not, in fact, been disposed of on the date the case was called for trial. Timely arraignment proceedings would, no doubt, have clarified the question of the representation of Rice. Chapter 38 § 113-3, Ill Rev Stats.

A review of the statutes and Supreme Court rules discloses that respondent’s understanding of the status was not ill-founded. Chapter 38, Ill Rev Stats provides and defines the procedure of a criminal prosecution: § 2-16 defines a “prosecution” and states that it commences with the filing of an indictment or information; § 102-17 limits the “preliminary examination” in evidence in this record to the determination of probable cause. Article 109 of the Code of Criminal Procedure provides the scope and nature of a preliminary examination. The published Committee Comments, § 109-3, Smith Hurd Annotated Statutes state:

“The preliminary examination is not a trial of the issue of guilt or innocence, nor is it considered any part of the trial.”

It is admitted in oral argument that if the magistrate had found no probable cause, upon a subsequent return of an indictment in Champaign County, respondent would not have been considered to be Rice’s attorney. Section 113-3 provides for arraignment procedure following an indictment, and provides specifically for time for an accused to procure counsel, or for the appointment of counsel by the court.

Supreme Court Rule 401 (in 1966 designated Rule 26) provides that if there is no waiver of indictment by an accused, the court shall order the information or complaint stricken, granting leave to proceed by indictment. The record is not clear whether this procedure was followed below, but the Rule suggests that the indictment is not a continuing proceeding upon the complaint filed.

Illinois authorities upon instances where lawyers had been held in contempt for failure to appear, for or during trial, include People v. McDonnell, 377 Ill 568, 37 NE2d 159; and People v. Buster, 77 Ill App2d 224, 222 NE2d 31. In McDonnell the attorney had commenced the trial of a case, procured the granting of a recess for other business, and then failed to return, with the result that a mistrial ensued. The reasons given in explanation were characterized by the Supreme Court as fantastic. In Buster the lawyer procured the entry of his appearance following the filing of an information and had consistently negotiated, by letter and telephone, with the State’s Attorney in his representation of the defendant, had requested continuance of trial dates and reaffirmed his appearance following the setting of a second trial date. Such facts were deemed consistent with representation in a pending matter.

Such authorities do not illuminate the present issue as to whether Bracy is properly considered an attorney of record for the defendant Rice following the latter’s indictment.

It is apparent that different issues might arise if the record showed that counsel had, in fact, participated in the local practice, or was explicitly alerted to his asserted status of attorney of record. This opinion does not, in any way, approve of respondent’s neglect to promptly clarify his status upon receipt of copies of letters from the State’s Attorney.

The “docket sheet practice” in Champaign County cannot be ascertained from the provisions of the criminal statute, or the published rules. The record fails to disclose that letters from the State’s Attorney relating to an arraignment date, or a trial date, addressed to the defendant and respondent, or with a copy to respondent, are such a sufficient notice of a local rule as to justify invoking the stern proceedings in contempt. Respondent’s admission that he had filed no motion for leave to withdraw as counsel, either before or after receipt of one or more letters from the State’s Attorney, does not constitute admission that he was properly considered an attorney of record following the indictment of Rice.

The rejection of respondent’s explanation of his failure to appear was an abuse of discretion, and the trial court erred in holding respondent in contempt. People v. Mulliken, 41 Ill App2d 282, 190 NE2d 502.

Reversed.

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


text:
    In the Matter of the Estate of Hattiebelle Fornof, Deceased. Annabelle Wimple Kitchens, et al., Appellants, v. Raymond C. Wimple, Appellee, and Bertha Waters, Intervening Appellee, and Annetta Sturgell, Nelle Johnson, Clyde Sturgell, Sr., and The Citizens National Bank, Appellees.
    Gen. No. 10,882.
    Fourth District.
    June 12, 1968.
    Evans & Fuson, of Decatur, for appellants.
    Baird & Latendresse, of Decatur (Lloyd F. Latendresse, of counsel), Armin C. Baer, of Tuscola, and Jack E. Horsley, of Craig & Craig, of Mattoon (Richard F. Record Jr., of counsel), for appellees.
   TRAPP, J.

One Clyde Sturgell and The Citizens National Bank of Decatur were appointed Coadministrators with the Will Annexed in the estate of Hattiebelle Fornof, following an amendment of the original petition which only prayed the appointment of Sturgell. The court denied a cross-petition objecting to the appointment of the said Sturgell and nominating the Bank as such administrator. Certain of the cross-petitioners appeal from such order.

Testator’s will was admitted to probate on December 28, 1966. She devised and bequeathed her estate of 1,200 acres of farmland and $500,000 in personalty equally between the respective heirs, per stirpes, of her half-brothers, William Wimple and Silas Wimple. All counsel agree that the estate devolves as it would under the statute of descent.

Testator’s nominee as executor filed his written refusal to qualify on November 28th. Raymond Wimple, an heir of William Wimple, filed a petition for the probate of decedent’s will, nominating Sturgell as Administrator with the Will Annexed. Entries of appearance to such petition were filed by the heirs of William Wimple and by Raymond Wimple and Clarence Wimple, heirs of Silas Wimple.

Appellants, as cross-petitioners, joined in the prayer for the probate of the will, but objected to the appointment of Sturgell as Administrator with the Will Annexed, and prayed the appointment of the Milliken Trust Company or The Citizens National Bank of Decatur, as such administrator. The appearances by Raymond Wimple and Clarence Wimple to the original petition were withdrawn, and they entered their appearances to the cross-petition.

As grounds for the objection of the appointment of Sturgell, the cross-petitioners alleged that in view of the extent and nature of the estate, it could be best administered and the beneficiaries “be more fully protected” by the appointment of a corporate administrator. The heirs of William Wimple reside in Illinois, while the heirs of Silas Wimple are nonresidents. The nominee Sturgell is the husband of Annetta, an heir of William Wimple.

At a hearing on December 23, 1966, the will was admitted to probate. The court then heard evidence concerning the appointment of an administrator. Cross-petitioners examined Sturgell as under section 60, interrogating him as to his age, health and physical condition, his handling of his own farmland, as well as the farmland of others. Such examination developed that Sturgell had managed testator’s farmland until the appointment of a conservator of her estate, The Citizens National Bank, some 18 months prior to her death. Sturgell also served as conservator of the estate of Bertha Waters, an heir of William Wimple.

Cross-petitioners also called as a witness the attorney who had drawn testator’s will in 1964. The latter testified as to a conversation wherein the testator had stated that the family was scattered and that she did not want a member of the family to serve as executor. Objection to such testimony was made on the ground that the will was already admitted to probate. The court agreed, but permitted such testimony “subject to answer.”

Sturgell testified that after the date of the execution of the will he had dealt with the farm tenants and collected the data for the preparation of decedent’s income tax return.

Further examination disclosed that Sturgell’s wife was a plaintiff in a suit for partition of the Fornof land, but that as conservator for Bertha Waters, Sturgell had not joined in, or discussed joining as plaintiff in that proceeding.

The trial court, having ascertained that all parties had rested as to matters of evidence, the attorneys for the cross-petitioners addressed the court urging as grounds for appointing a corporate administrator the complexity of the estate, the economy of the administration in terms of bond costs and accounting services, and that the cross-petitioners wanted fair play. Counsel submitted the corporate qualifications of The Citizens National Bank and of the Milliken Trust Company to serve as such administrator, noting that the former had served well as conservator of the estate of the deceased. The court took the matter of appointment under advisement until December 30th.

Upon that date counsel again appeared and the court showed on file a telegram from the original petitioner, Raymond Wimple, dated December 28th, at Sarasota, Florida, asking to amend the original petition to include The Citizens National Bank as coadministrator. Counsel for petitioner then moved to amend instanter the petition to nominate The Citizens National Bank as an administrator. Cross-petitioners objected upon the ground that they had not consulted with their clients.

The court then asked counsel if anything further was to be offered upon either the law or the evidence. Nothing was suggested. Counsel for cross-petitioners again addressed the court urging that there would be unwarranted cost to the estate, that the pending partition suit showed hostility between the groups of heirs, and that under the amended petition one group of heirs would not be represented.

The court then stated that there was nothing in the record to disqualify Sturgell, that he had served well in other appointments, and that his appointment had been requested by one group of beneficiaries. He further stated that he was aware that Sturgell had cooperated with and assisted The Citizens National Bank in the handling of real estate during the latter’s term as conservator of decedent’s estate. He then entered the orders appealed.

Appellants’ Praecipe for Record upon this appeal called for various portions of the files in the conservator-ship and the partition suit. Objection was made to the certification of such items as a part of the record in this case. They are included in such record under a certification that they are files in the office of the Clerk of the Court, but are not a part of the files in this case. None of the items so certified were offered in evidence and, in fact, no item is specifically referred to in the record. A motion to strike such matters from the record was taken with this appeal. The motion to strike is allowed.

While courts take judicial notice of their records in a pending case, they cannot do so in respect to records of other proceedings even where the facts are within the personal knowledge of the court. People v. McKinlay, 367 Ill 504, 11 NE2d 933; Palmer v. Mitchell, 57 Ill App2d 160, 206 NE2d 776; Cleary, Handbook of Illinois Evidence, 1st ed, § 5.5, p 65. Counsel for appellants urged that City of East St. Louis v. Touchette, 14 Ill2d 243, 150 NE2d 178, and Borin v. Borin, 335 Ill App 450, 82 NE2d 70 control. Neither case supports the view. In Touchette the documents in issue had been admitted into evidence as exhibits in the pending suit. In Borin the authority is confined to the pending case for the matters at issue upon an amended complaint were raised in the original complaint.

Following the motion to amend the original petition, appellants’ counsel advised the court that they had no further matter of law or evidence to present. No motion for continuance was made, but counsel did reiterate their former argument. The issue of appointing both nominees as Administrator with the Will Annexed existed under the petition and cross-petition then pending. Chapter 3, § 97, Ill Rev Stats 1965. The allowing of amendments to pleadings after evidence has been closed is largely a matter in the discretion of the court. Bartman v. Bartman, 411 Ill 487, 104 NE2d 296. See chapter 110, § 46, Ill Rev Stats 1965.

Having nominated and urged the appointment of The Citizens National Bank as administrator upon the basis of fairness to all parties, and its expertise in administration of the estates, appellants now attack its fairness and competency as administrator, apparently because of the Bank’s willingness to accept the appointment under the amended petition and the court’s past comment of knowledge that such bank and Sturgell had cooperated effectively while the former served as conservator for the decedent. It is now argued that appellants would not have confidence in the disinterest of the Bank as administrator for these reasons. Upon the record, the position is frivolous.

The hostility between the groups of heirs urged is the creation of counsels’ argument. The pending partition suit referred to is a statutory proceeding which any heir or beneficiary is legally entitled to bring. It is particularly designed to insure that all persons entitled receive his proper share and interest. Appellants contend that In re Estate of Abell, 395 Ill 337, 70 NE2d 252, and Dennis v. Dennis, 323 Ill App 328, 55 NE2d 527, set the standards upon the issue of hostility. Neither case involves an issue where the court appointed the nominee of each of the interested beneficiaries as coadministrators. In each case the record discloses actual hostility and there is evidence that the party objected to had theretofore mishandled the trust.

During oral argument this court, upon its own motion, expressed concern at the vituperative and offensive remarks made by appellants’ counsel concerning the guardian ad litem for Bertha Waters, which appear in appellants’ brief and argument. The court instructed counsel to move to strike such remarks and an order was entered accordingly. Upon further review of the briefs and arguments, it appears that counsel charged that the hearing below was conducted in an arbitrary manner and in a conspiratorial fashion. The record discloses precisely the contrary. Argument of such character and in such vein does not earn the respect and confidence of this court.

There being no evidence of abusive discretion in the court below, this order appointing coadministrators with the will annexed is affirmed.

Affirmed.

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


author: CRAVEN, J.,

text:
    Carroll Reiss and Keith Swigert, Plaintiffs-Appellees, v. El Bauer Chevrolet Company, a Corporation, Defendant-Appellant.
    Gen. No. 10,939.
    Fourth District.
    June 12, 1968.

      Wilson, Dyar, Houchen & McDonald, of Decatur (Vernon H. Houchen, of counsel), for appellant.

      Robert D. Owen and Garry E. Davis, Greanias & Owen, of Decatur, for appellees.
   CRAVEN, J.,

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Macon County entered on a jury verdict in favor of Carroll Reiss for $2,278.95 with reasonable attorneys’ fees, and a judgment in favor of Keith Swigert for $1,824.69 with reasonable attorneys’ fees against defendant, El Bauer Chevrolet Company; also, from a supplemental judgment by the court for the plaintiffs for attorneys’ fees in the sum of $975, taxed as costs against defendant.

The action was brought by plaintiffs, two automobile salesmen, against their employer automobile company to recover, under oral contracts of employment, sums of additional compensation plaintiffs contended due them as a “yearly service bonus” based upon the amount of sales made during a year.

The salesmen were employed under oral contracts of employment for no definite term, providing for payment of commission on each car sale with the additional “yearly service bonus.” This bonus was figured each year after the close of the fiscal year of defendant-corporation, which ended July 31. Originally, this sum was payable in September of each year. To qualify for the bonus, the employee was required to be in the employ of defendant on July 31 of each year.

The two salesmen left the employ of defendant after July 31, 1966. Defendant refused to pay them the bonus, contending its general manager, in September, 1963, informed the salesmen that thereafter, in order to qualify for the yearly service bonus, they must be employed by the corporation on the date the yearly service bonus checks were passed out, which was September of each year. Plaintiffs disputed that they were told this in 1963 and 1964, but admitted that the general manager told them this in September of 1965, after the fiscal year had started.

On the date of the trial, defendant asked leave of court to file an affirmative defense of the Statute of Frauds on the ground that such payments under the oral agreement required more than a year to be completed and were unenforceable under the Statute of Frauds. The court denied leave to file, which is complained of as error.

Error also is complained of an instruction given for plaintiffs and of refusal to give certain instructions tendered by defendant. Appellant also contends error in the awarding of attorneys’ fees to plaintiffs in that salesmen suing for a yearly service bonus are not within the statute authorizing allowance of attorneys’ fees.

The evidence in this case was heard by a jury. From the verdict of the jury, it had to find that plaintiffs were employed under the oral agreement that included payment to them of a commission at the end of the July employment period. The dispute in the evidence as to whether the agreement included a requirement that they still be employed with the corporation in September or October when they received the accounting and payment was determined by the jury in its verdict. The jury was instructed specifically on this issue. There was ample evidence to support its verdict.

It was not error to deny leave to file the asserted Statute-of-Frauds defense. The Statute of Frauds is no defense to an executed contract of employment, particularly where all that remains to be done by the other party is the payment of money. Collins v. Addicks, 351 Ill App 266, 114 NE2d 801 (2nd Dist 1953). In the Collins case, the amount due was not determinable until a year after the termination of the employment, while here the amount was determinable at the end of the corporate fiscal year on a year-to-year basis. That executed contracts are never voided by the Statute of Frauds has been the law of this state since Swanzey v. Moore, 22 Ill 63 (1859). There could have been no error in the court’s refusal to permit defendant to amend its pleadings on the day of trial to assert the Statute of Frauds as an affirmative defense, since this would have constituted no defense in this case.

The allowance of attorneys’ fees in this case is attacked on the grounds that the statute providing for the allowance of attorneys’ fees is limited in its application and does not authorize allowance of attorneys’ fees in a suit brought by automobile salesmen for a yearly service bonus. The statute (Ill Rev Stats, c 13, par 13 (SHA)) was enacted in 1889 and has been passed upon by numerous prior decisions of the Appellate Court. The early decisions limited its application to a type of employee restricted by the former language of the statute which provided attorneys’ fees “whenever a mechanic, artisan, miner, laborer, or servant, or employee” had cause to bring suit for his or her wages earned and due. Thus, in Epps v. Epps, 17 Ill App 196, the court held a traveling salesman was not a “laborer or servant” within the meaning of the statute. To the same effect was Signor v. Webb, 44 Ill App 338, and Standard Fashion Co., v. Blake, 51 Ill App 233. Also, in Buren v. Mercury Press, 280 Ill App 217, the court denied attorneys’ fees in a suit for wages by a salesman on the grounds that one employed as a salesman or solicitor of business for a printing establishment was not “engaged in services like those of a mechanic, artisan, miner, laborer or servant.” However, this court, as the Third District Appellate Court, in Bryant v. Vandalia R. Co., 184 Ill App 284 (1913), held that the statute was broad enough in its terms to permit the recovery of attorneys’ fees in a suit for wages by a station agent of defendant-railroad.

It appears to us that the statute was broad enough in its language to include all types of employees at the time many of the prior appellate cases passing upon it were decided. Nevertheless, the statute was amended August 24, 1965, to change the language to “mechanic, artisan, miner, laborer, servant or employee.” The obvious legislative intent was to include all employees who must sue to obtain payment of their wages and who otherwise comply with the requirements of the statute.

In the instant case, the claim was for a sum earned as wages by an “employee” within the meaning of the statute. We see no merit in the contention of appellant that the suit was for a yearly service bonus and that such a claim was not for wages earned. The evidence showed that the amount claimed due was not a gratuitous bonus but an amount due and owing based upon work produced by the plaintiffs in excess of a stated amount and accumulated on a monthly basis. The method of payment is not controlling in determining whether a sum is wages.

We find no reversible error in the giving of the plaintiffs’ instruction No. 4 nor in the refusal to give defendant’s instructions Nos. 1, 2 and 3. While plaintiffs’ instruction No. 4 was an abstract statement of the statute, it was followed by other instructions fully instructing the jury. The instructions of defendant which were refused did not state correct principles of law, and were properly refused. The given instructions properly instructed the jury on the issues of the case.

We observe that the statute does not provide for the jury to determine whether an attorney’s fee shall be allowed in such an action. Rather, it provides that when the court or jury decide that the amount for which suit is brought for wages earned and due and owing according to the terms of the employment is justly due and owing, and that a demand was made in writing at least three days before suit was brought, for a sum not exceeding the amount so found due and owing, “then the court shall allow to the plaintiff a reasonable attorney fee.” However, no error has been assigned of the court’s having submitted this issue to the jury; nor is there any contention here made as to the amount of the attorneys’ fees allowed.

For the reasons aforesaid, we find that the judgments below should be affirmed.

Judgments affirmed.

SMITH, P. J. and TRAPP, J., concur.


author: MR. JUSTICE SEIDENFELD

text:
    Arline Inwood, Executor of the Last Will and Testament of Carl E. Nelson, Deceased, Petitioner-Appellant, v. Nils A. Nilsson, Respondent-Appellee.
    Gen. No. 67-137.
    Second District.
    June 17, 1968.

      Nordquist and Anderson, of Rockford, for appellant.
    Frank P. North, of Rockford, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

This is a citation proceeding by the petitioner, Arline Inwood, as executor of the Last Will and Testament of Carl E. Nelson, Deceased, for an order requesting the respondent to show cause why he should not be removed as a joint tenant on a bank account opened by the deceased. After hearing, the court entered an order quashing the citation and further, on counterpetition of the respondent, ordered the executor to deliver the account book in the possession of the executor to the respondent. An appeal is prosecuted from these orders.

Petitioner contends that the presumption of donative intent from the creation of the joint account was overcome by the evidence, including the retention of the passbook by the deceased.

The deceased, prior to his death, was married and had no children. His wife previously had suffered approximately five strokes and was not living with the deceased at the time of his death.

The deceased asked his brother, Nils A. Nilsson, the respondent, to accompany him to the Rock River Savings & Loan Association in Rockford, Illinois, to become a joint tenant with him on a savings account maintained by the deceased in that institution. The two brothers signed an instrument in writing in usual form, the material portion of which is as follows:

“3. The undersigned intend that upon the death of any of them, the survivor or survivors shall be the sole beneficial owner or owners of the account, even if the funds for the account were provided wholly or in part by the Decedent.”

This agreement was executed on February 1, 1966.

An employee of the institution asked questions and presented to them the agreement and asked the decedent if that was what he wanted. The decedent said, “Yes, that is what I want.” When the agreement was executed there was over $6,000 in the account.

Prior to the execution of the agreement at the bank, the decedent advised the respondent that he wanted to have the respondent’s name on the books so that both could draw. The decedent said that they both could have the money together; that if one were sick he could draw the money and pay the bills and if the respondent became sick or ill the decedent could go and draw the funds and pay the respondent’s bills.

The respondent never had possession of the account book. The deceased died on March 9, 1967, more than thirteen months after the establishment of the account. The bank book was discovered among the effects in the deceased’s home by the brother-in-law. At the time of the petition for citation the account had a balance of $6,948.45.

The petition for citation filed by the executor sets forth that one of the assets of the estate was the joint savings account in the amount of $6,948.45 and that the bank book was retained by the decedent without delivery to the respondent. The citation further requested the appearance of the respondent ordering him to show cause why he should not be removed as joint tenant on the said account.

The respondent filed an answer and counterpetition alleging the joint tenancy agreement and moved for dismissal on the grounds that the citation did not state any fact or set of facts justifying its issuance. Further, the respondent prayed that the petitioner be ordered to deliver the passbook to the respondent as his property.

The court thereafter upon hearing quashed the citation and ordered the passbook to be delivered to the respondent as his property. We find no error.

Dealing first with the contention of the respondent that the petition for citation does not state any fact or facts justifying the issuance of such citation, we agree. A citation to recover property and discover information is statutory, pursuant to Ill Rev Stats 1965, chapter 3, sections 183-185, and a court shall order a citation to issue for the appearance before it of any person whom the petitioner believes “(1) to have concealed, converted, or embezzled or to have in his possession or control any personal property, books of account, papers, or evidences of debt or title to lands which belonged to a person whose estate is being administered in that court or which belongs to his estate or to his executor, administrator, guardian, or conservator or (2) to have information or knowledge withheld by the respondent from the executor, administrator, guardian, or conservator and needed by the executor, administrator, guardian, or conservator for the recovery of any property by suit or otherwise. . . .” The petition on its face is insufficient in law pursuant to the requirements of the statute as it does not allege facts either in subsections (1) or (2) as aforesaid.

However, the court heard evidence and examined exhibits, and we will examine the propriety of the court’s order based upon the evidence.

The creation of joint accounts in regard to banks and savings and loan associations is expressly governed by statute, Ill Rev Stats 1965, chapter 32, section 770. By this statutory provision, the legislature has expressly provided for the creation of survivorship accounts and savings in loan associations and has prescribed the method by which capital accounts can be set up. It is not contested that the joint accounts in this case met the statutory provisions of the statute.

We agree with petitioner’s claim that although joint ownership is set up in conformity with statutory provisions, a court of equity is not thereby foreclosed from looking behind the form of transaction and determining questions of the real and beneficial interest as between the parties. Intent is held to be controlling, but when the parties have expressed their intent by written agreement by clear and definite terms, the contract cannot be varied or altered unless there is clear and convincing evidence that a gift was not intended. Frey v. Wubbena, 26 Ill2d 62, 70, 185 NE2d 850 (1962). The petitioner argues that where evidence is presented which tends to rebut donative intent the burden falls upon the joint tenant to show by clear and convincing testimony that a gift was intended. This is not the present state of the law. The burden does not shift. Murgic v. Granite City Trust & Savings Bank, 31 Ill2d 587, 591, 202 NE2d 470 (1964).

The evidence is clear and convincing that the deceased intended a gift of the account when he stated, “that they could have the funds together.” The evidence is clear that the deceased understood the nature of the agreement and affirmed “that is what I want.” There is no evidence to refute the presumption of donative intent except the retention of the passbook and certificate, the evidence of the marriage relationship and illness of the wife, and the deposit of all moneys in the account by the deceased. In fact, therefore, the petitioner did not establish by clear and convincing evidence that a gift was not intended.

The petitioner further contends that the fact that the respondent did not ever obtain possession of the passbook or savings certificates supports the claim that donative intent is lacking.

The court in Graves v. Graves, 42 Ill App2d 438, 448, 192 NE2d 616 (1963), held that as all joint tenants could not have manual possession of a passbook at the same time, possession by one was possession for the benefit of all assuming donative intent. While petitioner argues that the case before us is similar on its facts to the case of In re Estate of Cronholm, 38 Ill App2d 141, 186 NE2d 534 (1962), we distinguished the facts in that case in Graves, and distinguish it likewise on the facts in this record: the clear language of the joint account agreement, the family relationship between the parties to that agreement, and the evidence that the decedent intended a gift which the petitioner’s evidence did not in any way overcome.

For these reasons, the order of the probate court is affirmed.

Affirmed.

DAVIS and MORAN, JJ., concur.


author: MORAN, J.

text:
    Stephen J. Reget and Mary E. Reget, Plaintiffs-Appellees, v. Dempsey-Tegeler & Co., Inc., a Corporation, Defendant-Appellant.
    Gen. No. 67-140.
    Fifth District.
    June 17, 1968.

      Lueders, Robertson & Konzen, of Granite City, for appellant.
    Kenneth F. Kelly, of Granite City, for appellees.
   MORAN, J.

Defendant appeals from a judgment of the Circuit Court of Madison County where the court allowed plaintiffs’ motion for summary judgment.

The plaintiffs and defendant entered into a lease agreement in December, 1960, which provided that the defendant would lease premises owned by the plaintiffs. This suit involves a claim for rent accrued from April, 1965, through December, 1965, the termination date of the lease. The defendant’s answer to the complaint alleged that the plaintiffs failed to mitigate damages by failing, neglecting and refusing to use due diligence in acquiring a subtenant or new tenant.

Plaintiffs then filed a motion for summary judgment on the ground that there was no defense to their cause of action for rent because the only defense asserted by the defendant was that plaintiffs failed to use due diligence to obtain a suitable subtenant or tenant, and that this did not constitute a valid defense. In opposition to the motion for summary judgment, the defendant filed an affidavit sworn to by an employee of a real estate firm which stated that the reasonable and fair rental value of the premises from April 1, 1965, through December 1, 1965, was $200-$225 per month for use as a business office, and that inquiries were received by the real estate firm from prospective tenants to lease said premises for business use for rental up to $250 per month, and that the inquiries were turned over to the plaintiffs.

The appellant contends that summary judgment cannot be awarded because the appellant should be given an opportunity to present evidence that the plaintiffs completely failed to do any acts to attempt to mitigate damages.

The majority rule in the United States is that the landlord has no duty whatsoever to mitigate damages in a case of this kind, even to the extent that he can arbitrarily refuse a suitable subtenant offered by the lessee. 31 ALR2d, p 831; 51 CJS, Landlord and Tenant, p 550, § 36; 32 Am Jur, Landlord and Tenant, § 412, p 338. The rationale is that the tenant cannot by his own wrong in abandoning the premises impose a duty upon the landlord. 32 Am Jur, § 519, p 423.

Illinois does not follow the majority rule completely. There is a conflict in Illinois as to whether the landlord has a general duty to mitigate or a duty to mitigate only in those instances where the tenant has tendered a suitable subtenant. In West Side Auction House Co. v. Connecticut Mut. Life Ins. Co., 186 Ill 156, 57 NE 839, the court said: “Upon abandonment of the leased premises by the tenant it was the right and the duty of the landlord to take charge of the premises, preserve them from injury, and if it could, re-rent them, thus reducing the damage for which the lessee was liable.” Id. at 161. See also Contratto v. Star Brewery Co., 165 Ill App 507; Hinde v. Madansky, 161 Ill App 216. However, later, and in our opinion, better-reasoned opinions have extended the duty to mitigate only to those instances where the tenant has tendered a suitable subtenant. Wohl v. Yelen, 22 Ill App2d 455, 161 NE2d 339; Scheinfeld v. Muntz TV Inc., 67 Ill App2d 8, 214 NE2d 506. In Wohl, the court reviewed the law relating to whether a general duty to mitigate damages on abandonment exists.

“The same conflict exists in other jurisdictions. The majority favor the rule against requiring the lessor to re-enter and use diligence in re-renting. . . . A minority apply a rule of mitigation similar to that used in other contracts. ...
“Virtually all cases refusing to accept the rule of mitigation involve landlords who have not re-entered and have not been presented with acceptable tenants by the defaulting tenant. These cases therefore may be said to hold that a landlord need not seek out new tenants after the defaulting tenant abandons.” Id. at 463-464.

We believe it to be the rule of law in Illinois at the present time that the landlord has no general duty to mitigate in a case of this kind, but has a duty only to accept a suitable subtenant when offered. When we construe defendant’s affidavit most strongly in its favor, we cannot construe it to mean that it had tendered a suitable subtenant to plaintiffs. The most that can be said of the affidavit is that the real estate firm received inquiries concerning the rental of the property, which inquiries it turned over to the plaintiffs. In order to construe this affidavit to be a defense in this cause, we would have to say that plaintiffs’ duty to mitigate damages placed upon them the affirmative duty to contact and investigate each prospective subtenant tendered by the lessee.

Since the foregoing affidavit filed by the defendant did not state that a suitable subtenant was offered to the plaintiffs, and since said affidavit is grounded on the premise that the landlord has a general duty to mitigate above and beyond the acceptance of a suitable subtenant, we believe the affidavit is insufficient to constitute a defense in this cause. Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: JUSTICE HANNAH.

text:
    Dorothy S. Gushleff, Plaintiff-Appellee, v. Thomas L. Gushleff, Defendant-Appellant.
    Gen. No. 67-101.
    Fifth District.
    June 19, 1968.
    Chapman, Strawn & Kinder, of Granite City, for appellant; Edgar R. Kelly, of East Alton, for appellee.
   Opinion by

JUSTICE HANNAH.

Not to be published in full.


text:
    Arthur MacAuley and Eleanor MacAuley, Plaintiffs-Counter-Defendants-Appellees, v. Allen D. Rickel, Illinois Car Wash, Inc., a Corporation, and Auto Laundry Equipment Sales Co., a Corporation, Defendants-Counter-Plaintiffs-Appellants.
    Gen. No. 67-127.
    Second District.
    June 20, 1968.

      Miller, Thomas, Hickey & Collins, of Rockford, for appellants.
    Roszkowski and Paddock, of Rockford, for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Plaintiffs, as the purchasers of a car wash business, sued for rescission of the contracts of sale, and for a recovery of sufficient monies to make them whole. From a judgment on a jury verdict in favor of the plaintiffs, granting rescission and a money judgment of $29,100, the defendants appeal.

Defendants urge that no actionable representations were made and that plaintiffs purchased the business with understanding of the risk involved. They further argue that error was committed in receiving the testimony of a former purchaser, in the refusal of an instruction, and in the failure to direct a verdict both at the close of plaintiffs’ proof and at the close of all the evidence. Plaintiffs counter that the evidence established fraud in the knowingly false representations of the profitability of the business, of its monthly gross receipts and expenses, and of the condition of equipment sold, which were relied on by the plaintiffs to their damage.

The facts are that in February, 1966, an automobile washing business known as the Auburn Car Wash was being operated in Rockford, Illinois. The defendant Illinois Car Wash, Inc. was at that time the owner of the business and the tenant of the premises at which the business was operated, while defendant Auto Laundry Equipment Sales Co. owned the equipment used in the business. Both of the defendant corporations were principally owned and controlled by the defendant Allen D. Rickel. At that time defendant Rickel placed an advertisement in a Rockford newspaper for the apparent purpose of finding a partner for the business. The plaintiffs, Arthur and Eleanor MacAuley, answered the advertisement, and discussions ensued with the view that MacAuley would invest in the business and become a partner-manager.

It should here be noted that MacAuley had previously worked as an accountant for approximately eighteen years, and had served in a managerial capacity in other businesses. At the time he began negotiations with defendant he was “semi-retired” but drew an annual salary and bonus from another business in Rockford.

The negotiations between the parties culminated in a general agreement whereby plaintiffs would purchase the business from defendants, operating under a sublease of the premises. At no time during these discussions did plaintiffs ask to see defendants’ books pertaining to the business, nor did defendants offer these books for plaintiffs’ inspection. According to plaintiffs, Rickel represented in the course of these negotiations that the business was “very profitable,” and that plaintiffs would clear about $1,200 per month from the business operation. Rickel further allegedly represented that about 3,000 cars were washed each month in the business. It was further alleged that Rickel represented all of equipment to be “operable and that there was nothing about the equipment breaking down or anything like that.”

Defendants denied that Rickel made any representations as to the profitability of the business or as to the number of cars washed there. Rickel, however, admitted stating that “all the equipment except the wheel washer was in A-l condition.” While Rickel testified that he offered to show MacAuley the records pertaining to the car count, it is unclear as to whether MacAuley actually looked at these records. In any event, it is undisputed that MacAuley, from a vantage point across the street from the business, made random car counts of his own, although he did not actually record these on paper.

It is undisputed that the parties themselves wrote and rewrote the contracts of sale, although the plaintiffs tried without success to telephone their attorney prior to placing their signatures thereon. Mrs. MacAuley testified that when plaintiffs’ attorney could not be contacted, Rickel “pounded on the counter and he said nobody leaves this building until I have this contract signed.” This was denied by Rickel. Mrs. MacAuley further testified that, shortly after the contracts were signed, Rickel advised plaintiffs for the first time that the road on which the business fronted was to be widened. When Mrs. MacAuley expressed dismay at this information, Rickel allegedly said that “you should do a much better business with the road being wider and it will only be a matter of two or three days.” In fact, according to Mrs MacAuley’s testimony, the road was completely closed from six weeks to two months, during which time the business was closed for lack of access.

From the time the plaintiffs operated the business from late March, 1966, until the time of trial — a period of about nine months — they had taken no salaries, and in fact had drawn a total of only slightly more than $700, and had spent from $1,000 to $1,500 for equipment repairs. According to the testimony of their accountant, the plaintiffs’ estimated net loss during this time, after allowance for depreciation and a salary of $650 per month, was $13,000. They filed their complaint below less than two months after acquiring the business.

For the reasons stated hereafter, it is the conclusion of this court that the judgment be affirmed.

As noted, there is great dispute as to what representations were made by defendant Rickel. If plaintiffs’ testimony is to be believed, there were representations as to profitability, gross receipts, expenses, the state of repair of the equipment, and the number of cars that could be expected to be washed. Obviously the jury chose to believe the plaintiffs, at least insofar as some of these representations were concerned, and the trial judge was sufficiently satisfied with the choice to enter judgment on the verdict. It is not for this court to conclude, as a matter of law, that both the jury and the trial judge believed the wrong witnesses. On the contrary, the trial judge and jury, having had the opportunity to hear the testimony and observe the witnesses, were in a better position, than we, to weigh the conflicting evidence and resolve questions of credibility. Stevens v. Fanning, 59 Ill App2d 285, 295, 207 NE2d 136 (1965). We cannot say, that viewing all the evidence, it so overwhelmingly favors defendants, that no verdict contrary to defendants could ever stand. Therefore, the court did not err in refusing to direct a verdict. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967).

Accepting the finding that defendants made the misrepresentations complained of, or even some of them, it would follow that actionable fraud would exist. Nowhere do defendants challenge the materiality of the misrepresentations, nor do they contend that plaintiffs did not rely thereon. These elements of fraud, therefore, are not before this court. Furthermore, we are not here concerned with misrepresentations as to future facts or promises, which are generally held not to be actionable. Brodsky v. Frank, 342 Ill 110, 117-118, 173 NE 775 (1930); Federal Deposit Ins. Corp. v. Wainer, 4 Ill App2d 233, 237, 124 NE2d 29 (1955). Defendants’ representations in this case, at least for the most part, related to existing facts, namely, that “it was a very profitable business,” that the Auburn Car Wash “did three thousand cars a month,” and that the equipment “was operable” and “was going good.”

Defendants argue that the representations have not been shown to be false, but we do not agree. There was ample evidence in the record to sustain the finding that the business had not been a profitable one— and certainly not a “very profitable” one — either prior to or at the time of the transaction, and the evidence is uncontradicted that the plaintiffs suffered a net loss of $13,000 in the nine months thereafter. Similarly, there was evidence tending to show that the equipment was not in the good condition represented, and that the business had not been washing three thousand cars each month.

Defendants next contend that the trial court improperly permitted the testimony of one T. H. MacRoy, a former owner and operator of the business. MacRoy purchased the business from defendants on January 1, 1964, and operated it until mid-February, 1965, at which time he turned it back to defendants. During 1964, the unrefuted testimony was that MacRoy lost in excess of $25,000 in the venture.

Contending that the MacRoy testimony was immaterial and unduly prejudicial, defendants cite Burroughs v. Comegys, 17 Ill App 653 (1885), holding that a fraudulent sale of oats by the defendant to a third party was not competent to prove a separate fraudulent sale to the plaintiff. However, the MacRoy testimony was not admitted to show that defendants had perpetrated frauds in the past. Rather, this witness’s testimony was more or less confined to the recent loss he had sustained in the business and to the fact that defendants were aware of his loss. We believe that this testimony was relevant to show the falsity of the representation that the business was profitable, and to show that Rickel knew or should have known it was false. Allin v. Millison, 72 Ill 201 (1874), is a case in point. There the plaintiff had purchased the rights to an invention from the defendant firm of Allin & Poston, through its agent, Leforgee. The plaintiff thereafter brought suit in fraud for a recovery of his purchase price. In affirming a judgment for the plaintiff, the court said, at page 204:

“It is insisted that the court erred in admitting evidence in regard to other transactions with other persons who had made similar purchases of territory from Allin & Poston, and complaints by them to the defendants of the worthlessness of their purchases; but this was proper for the purpose of affecting the defendants with the knowledge that the invention was without value, and Leforgee with knowledge of the falsity of the representations alleged to have been made by him.” (Emphasis added.)

A similar rationale is found in negligence cases, where it is held that “previous similar occurrences may be shown as evidence of defendant’s knowledge, . . . .” Hays v. Place, 350 Ill App 504, 510, 113 NE2d 178 (1953). See also, Joseph Taylor Coal Co. v. Dawes, 220 Ill 145, 149, 77 NE 131 (1906).

Defendants finally contend that the trial court erroneously refused to submit the following jury instruction tendered by defendants:

“If by an ordinary degree of precaution, the plaintiffs, the MacAuleys, could have ascertained the falsity of the representations complained of, then the plaintiffs are not entitled to recover. Whether or not the plaintiffs exercised due care and diligence to avoid being deceived is for you to determine.”

In this connection, defendants cite cases for the proposition that “a party is not justified in relying on representations made when he has ample opportunity to ascertain the truth of the representations before he acts.” Schmidt v. Landfield, 20 Ill2d 89, 94, 169 NE2d 229 (1960). While this is undoubtedly a true statement of the law, it is equally true that plaintiffs’ reliance will be justified where, as here, the defendant possessed a superior knowledge of the facts represented. Thus, in Broberg v. Mann, 66 Ill App2d 134, 213 NE2d 89 (1965), on which defendants rely heavily, the plaintiff brought a suit for fraud in defendant’s sale to him of eighteen acres of land which defendant had represented to contain twenty-six acres. In holding that no actionable fraud was proven, the court said, at page 144:

“His actions were not ‘calculated’ to deceive the plaintiff. The defendant possessed no superior knowledge of the acreage involved. He furnished to the plaintiff and his attorney, a survey, which, if examined along with the preliminary report of title and the proposed deed, would have clearly indicated that plaintiff was not receiving 26.18 acres.” (Emphasis added.)

In the case before us, the plaintiffs obviously did not have the same knowledge as defendants as to the profitability of the business, the condition of the equipment, or the number of cars that had been washed in the business. A different question would be presented if defendants’ books had disclosed the business to be unprofitable, and these books had been examined by the plaintiffs, one of whom had extensive accounting experience. But the fact remains that the books had not been offered to plaintiffs. Further, we find no negligence in plaintiffs’ failure to request an examination of the books. Plaintiffs had been advised that the business had been operated as a branch or division of defendant Illinois Car Wash, Inc., and that it was also being used for the experimentation of equipment and the training of other car wash employees. Under these circumstances, plaintiffs could reasonably have believed that the books would have been meaningless, and that an examination thereof would be a wasted exercise.

In any event, the court did give jury instructions tendered by both parties which clearly apprised the jury that they must find that the defendants made false representations of material existing facts, that the plaintiffs believed such representations, reasonably and justifiably relied upon them, and acted thereon to their injury. The failure to give the instruction in question, when viewed in the light of those actually given and defendants’ right of closing argument thereon, was not prejudicial to defendants. Under all of these circumstances, therefore, we find no error in the trial court’s refusal to give the instruction in question.

For the reasons stated, the judgment of the trial court will be affirmed.

Judgment affirmed.

DAVIS and MORAN, JJ., concur.