author: Mr. JUSTICE McGLOON

text:
    Ira F. Gudgel, Executor of the Estate of John T. Gudgel, Deceased, Plaintiff-Appellant, v. St. Louis Fire and Marine Insurance Company, Defendant-Appellee.
    (No. 54505;
    First District
    September 30, 1971.

      Mort A. Segall, of Champaign, for appellant.
    Graham, Meyer, Young, et al., of Chicago, (Thomas A. Graham and Charles R. Young, of counsel,) for appellees.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

The facts of this case arose out of a motor vehicle accident which occurred on June 30, 1963, at Danville, Illinois. The plaintiff-appellant, John T. Gudgel, a citizen of Indiana, was driving a car which collided with a truck-tractor driven by one Bud Freischlag, a citizen of lUinois. Gudgel instituted a negligence action to recover for injuries he sustained naming as defendants: Freischlag; Southern Shippers, Inc., a Mississippi corporation and common carrier which had leased the tractor for a period of one year on November 8, 1962; Wally Fondaw, a Mississippi citizen who is the President of Southern Shippers, Inc.; Gene Moffett, an IUinois citizen whose name appears as owner-lessor of the lease agreement covering the tractor; and Cecil Shockley, an Illinois citizen who had apparently purchased the tractor from Moffett prior to the collision and regularly drove the truck.

The affeged liability of Southern Shippers, Inc. in the previous action was based on the theory that there was a master-servant relationship between Southern Shippers, Inc. and Freischlag. This theory was evidenced by the lease and testimony of Freischlag, corroborated in part by a co-worker that Shockley and Freischlag had received certain directions from Southern Shippers, Inc. to haul some corn on the day prior to the accident. Freischlag alleged that it was pursuant to such directions that he was operating the trailer on the day of the accident. The co-worker’s testimony agreed with Freischlag as to the destination, but he stated the corn was to be transported for Shockley.

Southern Shippers’ theory of the case was that no master-servant relationship existed at the time of the accident with Gudgel, because the lease had been effectively cancelled by Southern Shippers, Inc. as of June 28, 1963, two days prior to the accident, as a result of which they no longer had any control of the tractor. They also contended they gave no instructions of any nature to Freischlag or Shockley on the day prior to the accident.

The case came to trial in the United States District Court for the Eastern District of Illinois. At the close of the plaintiff’s case the trial court granted motions dismissing defendants Moffett and Fondaw from the case and denied Southern Shippers’ motion to dismiss. Shockley was apparently never served and thus did not appear. Southern Shippers, Inc. moved for a directed verdict at the close of the defendant’s case, and the court denied its motion. The jury returned a general verdict against defendants Freischlag and Southern Shippers, Inc. Southern Shippers, Inc. moved for a judgment notwithstanding the verdict, and the trial court granted the motion. The trial court concluded that as a matter of law the plaintiff “had failed to prove by any evidence any negligence which would authorize or support any verdict against defendant Southern Shippers.” The trial court rendered a final judgment against Freischlag in favor of the plaintiff in the amount of $9,939.93.

The plaintiff appealed the granting of the judgment n.o.v. to Southern Shippers, Inc. The United States Court of Appeals for the Seventh Circuit affirmed the judgment concluding that the evidence in favor of Southern Shippers’ theory of the case was overwhelming.

Gudgel has now filed suit in Cook County against the instant defendant, St. Louis Fire and Marine Insurance Company, the insurer of Southern Shippers. In this action the plaintiff contends that Freischlag was an “insured’” within the meaning of that term as defined in the policy of insurance issued by the defendant to Southern Shippers, Inc. which was in effect at the time of the collision. Therefore, the insurance company is bound to indemnify Freischlag against the judgment.

The insurance policy in question, which was made a part of the record here, includes in the definition of an “insured party” the following language:

“With respect to the insurance for Bodily Injury Liability and for Property Damage Liability the unqualified word “insured” includes the named insured and also includes any person while using an owned automobile or a hired automobile and 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. . . .” Emphasis added.

The plaintiff argues that regardless of whether Freischlag was acting as an “agent or servant” of Southern Shippers at the time of the collision, he was operating the vehicle with their permission and hence fits within the definition of “insured” as set out in the aforementioned policy. Therefore, plaintiff argues that the defendant is liable to indemnify Freischlag in the amount of the final judgment of $9939.93.

Prior to trial, the defendant moved to dismiss the complaint alleging that the plaintiff’s cause of action was barred by the previous rulings of the federal courts in the original case involving Southern Shippers, Inc. Defendant argued that these decisions including findings of fact which are effective to bar the present action under the doctrine of collateral estoppel or “estoppel by verdict.”

The plaintiff filed a motion to strike the defendant’s motion stating that the defendant’s motion was insufficient in law to show a defect in the complaint, and that the defendant was pleading conclusions unsupported by factual matters of record and that defendant’s Exhibits A and B (which were copies of the opinions of the District Court and the Court of Appeals in the original action) were not properly authenticated, and the affidavit of defendant’s attorney was factually insufficient to support the defendant’s motion.

The trial court dismissed with prejudice the motion of the plaintiff to strike, and allowed the defendant’s motion to dismiss and entered judgment in favor of defendant and against plaintiff.

We vacate the judgment below and remand with instructions.

Since we are vacating the judgment below and the trial court may, depending on its finding, reinstate that judgment, we will answer both issues raised by plaintiff.

First, the plaintiff contends that the defendant’s motion to dismiss failed to properly allege that the cause of action was barred by a prior judgment. He bases this argument on the grounds that the documents attached to the motion purporting to be the order of the Federal District Court, and the decision of the Federal Court of Appeals in the original action involving Southern Shippers, Inc., were uncertified and unauthenticated contrary to Ill. Rev. Stat. 1969, ch. 51, pars. 13 and 55, and further argues that the affidavit attached to defendant’s motion, on its face, should have, but did not contain, factual matters of record to defeat the defendant’s cause, since no such facts appeared on the face of the complaint which would defeat the plaintiff’s cause of action.

Finally, the plaintiff contends that the defendant’s reliance on Supreme Court Rule 133(b), Ill. Rev. Stat. 1967, ch. 110A, par. 133(b) is misplaced, because it is the plaintiff’s position that the Supreme Court Rule conflicts with ch. 51, pars. 13 and 55, and that the rule must bow to the statute. We do not agree.

The Ill. Rev. Stat. 1969, ch. 51, pars. 13 and 55 provide as follows: “par. 13: The papers, entries and records of courts may be proved by a copy thereof certified under the hand of the clerk having the custody thereof, and the seal of the court, or by the judge of the court if there be no clerk.
par. 55: * * * the records and judicial proceedings of any such State, Territory or Possession, or copies thereof shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.
Such acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.”
The Ill. Rev. Stat. 1969, ch. 110A, par. 133(b) provides as follows:
“(b) Judgment or Order. In pleading a judgment or order of any state or federal court or the decision of any state or federal officer or board of special jurisdiction, it is sufficient to state the date of its entry, and describe its general nature and allege generally that the judgment or decision was duly given or made.”

The Supreme Court has under Ill. Rev. Stat. 1969, ch. 110, par. 2 the power to make rules of pleading, practice and procedure for the circuit, Appellate and Supreme Courts supplementary to, but not inconsistent with, the provisions of the Illinois Civil Practice Act. Rule 133(b) is by its terms applicable only to the pleading stage of adjudication. Ill. Rev. Stat. 1969, ch. 51 speaks to the traditional rules governing admissibility of evidence at trial.

Thus, the rule and the two sections of the statute are not in conflict. The defendant has complied with Rule 133(b) and to that extent has properly pleaded the prior decisions of the federal courts in question.

The second issue raised by the plaintiff is that any “prior judgment” of the Federal Trial or Appeals Courts does not stand as a bar to his present action since this action and the issue it raises are different from the previous action. Specifically, he argues that the previous action involving Southern Shippers spoke to the issue of “respondeat superior” and called for a determination of whether Freischlag was the servant of Southern Shippers at the time of the accident. In the case at bar the issue is whether or not Freischlag was a “permissive user” at the time of the accident and hence covered under the terms of the defendant’s insurance policy. He argues that in determining whether or not this issue was passed on in the previous action we can look only to the decision of the Federal Trial Court and not the decision of the Federal Court of Appeals.

In making the argument that the “prior judgment” is no bar to the present action because the cause of action in the instant case is different from that in the previous action, we note that the plaintiff is speaking to the traditional doctrine of res judicata. Therein the courts have held a prior judgment to be no bar to a later course of action unless the parties, the thing sought to be recovered and the cause of action are identical in both proceedings. However, the defendant in the instant case is urging not res judicata but a branch thereof, namely, the doctrine of collateral estoppel. Basically that doctrine establishes that the adjudication of a controlling fact or matter at issue between the parties to an action is conclusive as an “estoppel by verdict” or collateral estoppel in a subsequent action between the same parties or their privies, regardless of whether the cause of action is the same in both lawsuits. See City of Elmhurst v. Kegerreis (1946), 392 Ill. 195, 64 N.E.2d 450; Smith v. Womack’s Estate (1958), 17 Ill.App.2d 264, 149 N.E.2d 778.

The plaintiff’s argument that in urging a “prior judgment” as a bar to a later action the party asserting the bar can look only to the decision of the trial court and not to any subsequent appellate court decisions draws our qualified agreement. We agree that as a general rule this is the law in Illinois. This was set out in the case of 222 East Chestnut Street Corporation v. 199 Lake Shore Drive (1960), 24 Ill.App.2d 545, 165 N.E.2d 71 where this court said at page 550:

“It has consistently been held that a former adjudication does not rest on the opinion of the court of review, but on the judgment of the trial comt which has become final through affirmance. City of Elmhurst v. Kegerris, 392 Ill. 195; Pelouze v. Slaughter, 241 Ill. 215.”

However, we do not agree that this court when faced with the brief opinion of the Federal Trial Comt reciting none of its findings and being without benefit of the record in that earlier case is barred from taking note of any recitation of such matters of record or findings in the decision of the Federal Appeals Comt. It is of necessity that the record before that court is the same one that was before the trial comt, and any findings of fact dealt with are findings made by the trial comt. In so doing this comt does not violate the principle that it is the decision of the trial comt which constitutes the “prior judgment” in bar of later actions. Rather it seeks to bring meaning to that term, to determine exactly what issues and findings are finally adjudicated by that “prior judgment.”

The Illinois courts have recognized that where a plaintiff is defeated in an action based on a certain theory of his legal rights or as to the legal effects of a given transaction or state of facts through failure to substantiate his view of the case, this will not as a rule preclude him from renewing the litigation without any change of facts, but basing his claim on a new and more correct theory. (See Illinois Law and Practice (1969), Vol. 23, par. 342.) The new theory may not be merely a change in theory of what is essentially a single cause of action. If that is the case, the doctrine of res judicata will apply. In the case at bar, plaintiff appears to have met the necessary requirements to allow him to renew the action. His present action is one of contract and is based on the insurance policy between the instant defendant and Southern Shippers, Inc. His previous action was in tort and was based on a theory of agency. Whether collateral estoppel applies to bar the present action depends on whether in the previous action against Southern Shippers, Inc. there was a finding of fact adverse to the plaintiff which, of necessity, would blunt his theory in this case. The critical finding it seems to us would have been whether the lease agreement under which Southern Shippers, Inc. had leased the tractor involved in the accident was effectively cancelled on June 28, 1963, as testified to be Southern Shippers, Inc. in the original action and as claimed by the defendant in the case at bar. This is so, first, because there is no other evidence except the lease of a relationship between Southern Shippers, Inc. and Shockley or Moffett which would have allowed Southern Shippers, Inc. to control the truck via permission, and second, because coverage under the insurance policy involved here was expressly limited by its own terms to “owned or hired automobiles.” The issue of ownership was conclusively answered in favor of the defendant at the previous trial with the express findings by the Federal District Court that Southern Shippers, Inc. did not own the tractor involved in the accident. Since the record gives no indication of any “hire” relationship outside the lease, it is clear that if the lease was cancelled, Southern Shippers, Inc. no longer had any control over the tractor. As a result they could neither give nor withhold their permission to use such. From the evidence introduced at the trial in the Southern Shippers, Inc. case and alluded to by the Federal Court of Appeals, it would appear that the lease was cancelled. However, this fact cannot be determined from the record. The memorandum of the District Court did not speak to the lease and the opinion of the Court of Appeals assessed the evidence regarding the lease as a part of the case theories of both parties without indicating whether a specific finding, as to the lease, was ever made. The Court of Appeals said at page 5 of its opinion:

"* ** * The lease which gave Southern Shippers the right to control the tractor, supports a weak inference that the tractor was being operated under its control and in its business when the collision occurred.
The evidence in support of Southern Shippers’ position is overwhelming. The president of Southern Shippers, Wally Fondaw, testified that he did not know Freischlag, that he cancelled the lease on June 28, 1963, because Shockley had torn the top out of the company’s trailer by hitting an underpass, that the trailer was damaged so badly that it was not suitable for transporting anything, and that no instructions were given to Freischlag or Shockley to do anything after * * * June 28, 1963, * *

Nor is the grant of the judgment n.o.v. in favor of Southern Shippers, Inc. conclusive as to the fact of cancellation. Under the applicable procedural standard governing such motions as set out in Baltimore & Ohio RR. Co. v. Muldoon, 102 F.2d 151 and applied by the trial court in the previous case, we think it quite conceivable that the motion could have been granted without a finding that the lease had been cancelled. That is, the conclusion as a matter of law that no master-servant relationship existed would not preclude a finding that the lease agreement was still in effect.

In accord with the above, we are vacating the judgment below and remanding to the trial court for a hearing to determine whether or not a cancellation of the lease ever occurred. If the court below finds that the lease was effectively cancelled, it should reinstate the judgment in favor of the defendant. If the court below finds that the issue of canceHation was not litigated or that the finding was that the lease was in effect on the date of the accident, it may not reinstate the judgment, but must grant the plaintiff’s motion to strike the defendant’s motion to dismiss and aHow the action to proceed.

Judgment vacated and remanded with instructions.

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


source: Caselaw Access Project

author: Mr. JUSTICE ABRAHAMSON

license: Public Domain

text:
    In Re Petition to Annex Certain Territory to the Village of Green Oaks—(James G. Dowden, et al., Petitioners-Appellants, v. Chicago Title and Trust Company, et al., Objectors-Appellees.)
    (No. 70-278;
    Second District
    November 1, 1971.

      Eva Schwartzman, of Libertyville, for appellant.
    John F. Grady, of Waukegan, for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The petitioners appeal from a judgment of the circuit court of Lake County which dismissed then petition to annex property to the Village of Green Oaks. Objections to the petition had been filed by several property owners whose lands were included in the territory sought to be annexed.

The legal description of the property sought to be annexed, as well as the maps of the property, reveal that there is a common boundary between the territory sought to be annexed and the Village of Green Oaks for a distance of approximately 360 feet at the north limits of the Village of Green Oaks. The common boundary of 360 feet is also the southerly boundary fine of a parcel sought to be annexed which consists mainly of 20 lots facing west and on O’Plaine Road (a north-south road), each one acre in size and 320 feet deep, together with the east one-half (a 40-foot width) of O’Plaine Road. This parcel extends northerly from the northerly village limits of Green Oaks for approximately %’s of a mile. Other property sought to be annexed extends northerly along O’Plaine Road for a distance of 2Yz miles from the parcel just described, in an irregular shape, sometimes including property on both sides of O’Plaine Road and at times only property on the east or west side of O’Plaine Road, together with that part of O’Plaine Road hereinafter described.

About one and one-half miles north of the Village of Green Oaks, the Northern Illinois Toll Highway cuts across and divides the territory sought to be annexed. No part of the toll highway itself is included in the petition for annexation, and section 7—1—2 (Ill. Rev. Stat. 1969, ch. 24, par. 7—1—2) prevents such inclusion without the written consent of either the governor of Illinois or the governing authority of the Northern Illinois Toll Highway. At the place where the toll highway bisects the property sought to be annexed, the toll highway runs in a generally northwest-southeast direction. The physical connection between the two parts of the territory separated by the Northern Illinois Toll Highway is the O’Plaine Road overpass bridge. The maps in evidence, and the legal description, reveal that the west one-half of O’Plaine Road (County Highway No. 38) running northerly from the northerly limits of the Village of Green Oaks for a distance over one mile, or approximately 6,500 feet, is not included in the petition for annexation, nor is the easterly half of O’Plaine Road from the point where Belvedere Road (State Route 120), which generally runs in an east-west direction, intersects O’Plaine Road north to the northernmost point of annexation, a distance of approximately 3,500 feet. It also appears that for a substantial portion of the 3,5000 feet just mentioned, the east half of O’Plaine Road (County Highway No. 38), north of State Route 120, is not included nor could it be included, within the territory sought to be annexed as it lies within the Village of Gurnee. Thus, the center line of O’Plaine Road is the westerly boundary of the Village of Gurnee for a substantial distance.

The objectors contended that section 7—1—1 (Ill. Rev. Stat. 1969, ch. 24, par. 7—1—1), governing annexation of territory, which provides in part as follows:

“The new boundaries shall extend to the far side of any adjacent highway and shall include all of every highway within the area annexed.” was not complied with by the petitioners, in that substantial portions of O’Plaine Road, a highway adjacent to the area sought to be annnexed, were not included within the legal description set forth in the petition and that, therefore, the petition should be dismissed. The trial court dismissed the petition as a consequence of this omission after refusing a request by the petitioners to amend their petition to comply with the requirement that the “new boundary shall extend to the far side of any adjacent highway.” It also appears that the trial judge indicated in his colloquy with the attorneys, prior to entering judgment, that he did not feel the part of the property sought to be annexed north of the Northern Illinois Toll Highway was contiguous to that part of the property sought to be annexed south of the Northern Illinois Toll Highway, even under the guidelines set forth in People ex rel. So. Barrington v. Hoffman, 30 Ill.2d 385.

The petitioners argue that the legislature intended, in providing in section 7 — 1—1 (Ill. Rev. Stat. 1969, ch. 24, par. 7 — 1—1) that “the new boundaries shall extend to the far side of any adjacent highway,” to bring the maintenance and repair of any roads being annexed under one governmental jurisdiction after annexation. Thus, it is said the boundary provision would apply only to the annexation of township roads and not to the annexation of county roads, as the obligation to maintain and repair county roads remains with the County Board regardless of annexation to a municipality. They further state that O’Plaine Road (County Highway No. 38) can only be removed from the County Highway system by a resolution of the County Board and not by annexation to a municipality. Their conclusion is that, although section 7 — 1—1 says that the new boundaries “shall" extend to the far side of the adjacent highway, it is directory only and not mandatory when applied to county highways, as no rights are lost or prejudiced by the failure to include parts of O’Plaine Road (County Highway No. 38) to the far side.

To the contrary, the objectors-appellees state that section 7 — 1—1 states “any adjacent highway” and “all of every highway,” and point out that section 2 — 202 of the Illinois Highway Code (Ill. Rev. Stat. 1969, ch. 121, par. 2 — 202) defines highways as follows:

“Highway — any public way for vehicular- travel which has been laid out in pursuance of any law of this State or of the Territory of Illinois, or which has been established by dedication, or used by the public as a highway for 15 years, or which has been or may be laid out and connect a subdivision or platted land with a public highway and which has been dedicated for the use of the owners of the land included in the subdivision or platted land where there has been an acceptance and use under such dedication by such owners, and which has not been vacated in pursuance of law. The term “highway’ includes rights of way, bridges, drainage structures, signs, guard rails, protective structures and all other structures and appurtenances necessary or convenient for vehicular traffic. A highway in a rural area may be called a Toad’, while a highway in a municipal area may be called a ‘street’.”

The objectors, therefore, say the statutory requirement for an inclusion of all of every highway is plain and unambiguous; that no construction of the language is required; and that the court has no power to dispense with the requirement. Section 7 — 1—1, hereinbefore referred to, also states as follows:

“Any territory which is not within the corporate limits of any municipality but which is contiguous to a municipality, may be annexed thereto as provided in this Article.”

The language is clear and unambiguous that the new boundary of any annexed territory “shall” extend to the far side of any adjacent highway, provided the territory being annexed is not within the corporate limits of any municipality. As the language of the statute is clear and explicit, the annexation must be exercised in the circumstances and manner prescribed in the statute. (People v. Village of Lyons, 400 Ill. 82.) The requirement that all highways be included is a part of the annexation process and such requirement cannot be deemed directory only, despite the fact that the word "shall” is used, because the highway is a county highway rather than a township highway. Incidentally, the contention of the objectors that there is no proper proof that O’Plaine Road is a county highway was not raised in the trial court and cannot be raised here now for the first time. Furthermore, the maps, prepared by the Superintendent of the Map Department of Lake County, and on which O’Plaine Road was labeled as “Co. Hwy. #38,” were introduced into evidence without objection.

The circuit court did not err in refusing to allow the petitioners to amend their petition to include both sides of O’Plaine Road, where both sides were not included in the petition. It is true that certain amendments to pleadings are permitted under the Illinois Civil Practice Act, but we have been cited no authority, statutory or otherwise, which would permit the changing of a legal description of the property to be annexed to add more property after the petition was filed and statutory notice was published, pursuant to section 7—1—2. The argument of the petitioners, that the amendment should have been permitted because the Village of Green Oaks would or could annex the omitted half of the road later, is conjectural and could not alter the legal requirements, with reference to new boundaries, contained in section 7—1—1.

The appellants contend that under the doctrine of People ex rel. South Barrington v. Hoffman supra, the physical connection of the part of the property sought to be annexed south of the toll highway, and that part of the property sought to be annexed north of the toll highway, by the overpass bridge on O’Plaine Road over the toll highway, satisfied the requirement that the annexed property be “contiguous” to the Village of Green Oaks. The trial judge, when the parties hereto were arguing whether or not the facts in the Hoffman Estates case were distinguishable from the facts herein, stated that there was no evidence herein to establish that the Village of Green Oaks has any municipal services that it is affording to its own residents, let alone any municipal services that it is affording to the area sought to be annexed, and concluded that the Hoffman Estates case was completely distinguishable from this case. In Hoffman Estates, it was said at page 388:

“Access may be had to the annexed territory by means of the Barring-ton Road, and from the affidavits filed in the trial court it appears that Hoffman Estates is already affording police protection, garbage removal, and performing other municipal functions in the area in question. Under these circumstances we believe the annexed territory was contiguous to the village of Hoffman Estates within the meaning to the Municipal Code.”

In support of their position, the appellants cite In Re Annex. Terr. to Village of Buffalo Grove, 128 Ill.App.2d 261, wherein we said, in commenting upon the Hoffman Estates case, at pages 272 and 273:

“We do not consider that this case establishes an additional requirement of ‘unity of purpose and facilities’ to the well recognized necessity of reasonably substantial physical touching, as constituting contiguity. The necessity for unity and continuity is but an aspect of the requirement of contiguity, for the purpose of creating extensions of municipal corporations which are not separated or segregated in a community sense. If there is reasonably substantial physical touching, there is contiguity. If the only obstruction to a unified community is a natural or artificial obstruction which may be bridged to unify a community, there may still be contiguity under the Hoffman Estates doctrine.” Emphasis added.

It was also stated on page 273:

“Obviously, if the statute permits the inclusion of unsubdivided lands beyond a city boundary including lands presently used for farming, there can be no requirement that the municipality must be already furnishing its services to the outlying area to compromise corporate unity. # # *
“We there (referring to In Re Ordinance No. 491, Annexing Territory to Loves Park, 89 Ill.App.2d 284, 1967) simply recognized that the concept of unity of purpose and facilities was the reason for the statutory requirement of contiguity. The standard of a reasonably substantial touching’ merely ensures that the municipality, when the new territory is included, will be connected and compact, not separated or segregated, in a community sense.” Emphasis added.

The Buffalo Grove case and the Loves Park case did not involve a physical separation of territory to be annexed by a toll highway. In considering the question of contiguity in the Hoffman Estates case, the factual situation was that the territory sought to be annexed paralleled the north boundary of the Village of Hoffman Estates for about three miles; and that for that entire length, except for Barrintgon Road which ran over the tollway, the territory sought to be annexed was separated from the village by the Illinois Toll Highway, which was 300 feet wide. The court in that case in effect found that, despite.the separation caused by the toll highway, the territory on both sides of the highway was already a community.

Here, there is, in effect, a finding to the contrary. The Northern Illinois Toll Highway is not adjacent to and parallel with any boundary of the Village of Green Oaks; rather, the toll highway crosses O’Plaine Road and divides the territory sought to be annexed, according to the map, about one and one-half miles north of the north limits of the Village of Green Oaks. When we consider the factual situation present here, under the applicable case law, we conclude that the trial judge was correct in holding that the part of the territory sought to be annexed north of the toll highway was not contiguous to the Village of Green Oaks.

In dismissing the complaint, the court did not specifically comment upon certain objections made. One of these objections was that the 360-foot common boundary was not sufficient to satisfy the requirement of “contiguity” in annexation proceedings. We consider that objection to be without merit in light of the factual situation present herein and our decision In Re Annex. Terr. Village of Buffalo Grove supra, in which we reviewed extensively the requirements of “contiguity.” We, likewise, consider other objections made to be without merit. They are that the published notice and annexation petition do not comply with the statute because they did not contain a map, in addition to the legal description. The objectors do not contend that the legal description is inaccurate but it is lengthy and describes a territory to be annexed of irregular shape, as previously mentioned. The fact that the legal description is somewhat complicated, rather than simple, may indicate a desirability that a map be contained in the notice and petition, along with a legal description. However, the statute does not require that either the notice or petition contain a map, and the setting forth of the legal description in each is a technical compliance with the statute and that is all that is necessary. People v. Village of No. Barrington, 94 Ill.App.2d 265.

As certain of the objections hereinabove discussed are well taken, the judgment of the circuit court is affirmed.

Judgment affirmed.

SEIDENFELD and GUILD, JJ., concur.


text:
    Adron Paul Brainerd, Plaintiff-Appellant, v. First Lake County National Bank of Libertyville, et al., Defendants-Appellees.
    (Nos. 70-228, 70-262 cons.;
    Second District
    November 4, 1971.

      Adron Paul Brainerd, of Libertyville, for appellant.
    Hall, Meyer, Fisher, Holmberg, Snook & May, of Waukegan, (James J. Hermann, Jr., of counsel,) for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

On April 3, 1970, the plaintiff filed a two-count complaint against the defendants alleging various tortious acts committed by them during an incident that occurred on January 26, 1968 and seeking actual and punitive damages in the total amount of $103,100.00. The defendants moved to dismiss the complaint pursuant to Section 48(1)(d) of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, sec. 48(d)) in that the cause of action was barred by a prior judgment. On May 21, 1970, the trial court entered an order that found that the matters alleged in the complaint had been adjudicated in an earlier proceeding between the same parties and dismissed the complaint with prejudice. After the court denied his motion to vacate the order of dismissal, the plaintiff filed his notice of appeal on July 27 and the cause was docketed with this court as Case No. 70-228.

On July 29, 1970, the plaintiff filed a petition under Section 72 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 72) seeking relief from judgments entered September 27 and November 7, 1968, respectively in the earlier proceeding. On September 1, that petition was amended and the defendants filed their motion to strike. On September 25 the trial court struck certain portions of the petition and, in a separate order, denied it. After the trial court denied his petition to “rehear/ reconsider or vacate”, the plaintiff brought a second appeal that is before us as Case No. 70-262. The two cases have been consolidated for our consideration.

On June 14, 1968, the plaintiff filed his first complaint against tírese same defendants. That complaint was dismissed for failure to state a cause of action and the plaintiff given additional time to file an amended complaint. On November 7, 1968 the cause was dismissed “with prejudice” since the plaintiff had failed to amend his complaint. We affirmed that order of dismissal in the case of Brainerd v. First Lake Co. Natl. Bank of Libertyville, 109 Ill.App.2d 251, and the Supreme Court denied the plaintiffs petition for leave to appeal from our decision. The plaintiff now contends that the judgment order in that case could not bar his new action since it was not rendered on the merits. We do not agree.

Supreme Court Rule 273 (Ill. Rev. Stat. 1969 ch. 110A par. 273) provides as foffows:

“Effect of Involuntary Dismissal.
Unless the order of dismissal or a statute of this state otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.”

This rule was effective as of January 1, 1967, and applicable to the judgment rendered November 7, 1968. Since that judgment order did not fall within any of the enumerated exceptions, it operated as an adjudication upon the merits of the cause and was, of course, a final, appealable order. (People v. Gulf, Mobile and Ohio Railroad Company, 125 Ill.App.2d 473, 475.) Even before the rule, a dismissal with an election to stand on the complaint was deemed a final, appealable order and a bar to future suits by the plaintiff against the same defendants arising out of the same transaction. Robinson v. City of Geneseo, 77 Ill.App.2d. 308, 310; Schoen v. Caterpillar Tractor Co., 77 Ill.App.2d 315, 317.

The first complaint alleged that the plaintiff had been damaged as a result of the tortious conduct of the defendants arising out of an incident that occurred on January 26, 1968. The second action made the same allegations although phrased in more precise terms. The parties, the subject matter and the issues raised in the two proceedings were virtually identical. Since, as we have seen, the dismissal of the first action operated as a final adjudication on the merits, the second cause was clearly barred under the principles of res adjudicada. Martin v. Masini, 90 Ill.App.2d 348; Pratt v. Baker, 79 Ill.App.2d 479; Schoen v. Caterpillar Tractor Co., ibid.

As is well known, a petition brought under Section 72 is addressed to the legal discretion of the trial court and a court of review will not interfere with the exercise of that discretion unless there is an abuse. (Goldman v. Checker Taxi Co., Inc. 84 Ill.App.2d 318, 320.) The petition enables a party to bring before the court matters of fact not appearing in the record which if known would have prevented rendition of the judgment. (Brockmeyer v. Duncan, 18 Ill.2d 502, 505.) The petition is not intended to reheve a party of the consequence of his own mistake or negligence. Suarez v. Yellow Cab Co., 112 Ill.App.2d 390.

The plaintiff’s amended petition, purportedly brought pursuant to Section 72, contained a number of factual allegations wholly unrelated to the cause of action that were properly stricken by the trial court. It also asks the court to take “judicial notice” of a number of facts not within the purview of that concept and completely unsupported by anything in the record. The petition further includes a repetition of the allegations made in the original complaint; an argument against our decision in the first appeal; and some allegations of fact that were either known or should have been known by the plaintiff prior to the rendition of the final judgment. It completely fails to set forth sufficient facts to constitute grounds for relief under Section 72 and was properly denied by the trial court.

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

Judgment affirmed.

SEIDENFELD and GUILD, JJ„ concur.


text:
    Eleanor Saporito, Plaintiff-Appellant, v. Wendell Chapin d/b/a Terrapin Ridge Manor Motel, Defendant-Appellee.
    (No. 71-42;
    Second District
    November 4, 1971.

      Canfield, Canfield, Franks, Wylde & Hoad, of Rockford, for appellant.
    Holtan & Garrity, of Freeport, for appeUee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

Plaintiff brought this action to recover damages for personal injuries sustained when she fell down a step on defendant’s premises. In a bench trial in the circuit court of Jo Daviess County, the trial judge directed a verdict for the defendant, pursuant to motion, at the close of plaintiff’s case. The plaintiff contends, upon appeal, that she presented evidence of inadequate fighting and a structural condition of the step on premises which were due to the negligence of the defendant. She further states she exercised due care and was not contributorily negligent. Plaintiff concludes that she was entitled, therefore, to a jury determination as to whether she should recover damages and contends that the order directing a verdict against her was improperly entered.

On July 26, 1968, plaintiff had rented a room on the first-floor level in defendant’s motel. The first floor consisted of a number of adjacent rooms. There was a second level of said motel which consisted of only two rooms, and plaintiff’s nephew, a Mr. Knutson, was living in one of the second-floor rooms. There were two stairways from the first floor to the rooms on the second floor — an inside stairway from the dining room to the second-floor level, and a stairway from the front of the motel, leading to a wooden planking on the roof of the motel that extended to an outside door on the second floor.

Plaintiff had been visiting with her nephew in his room on the second floor and about 9:00 p.m. on July 26, 1968, when it was dark outside, she left his room and went through a hallway between the two rooms on the second floor, to the door leading to the roof exit and entrance to the first floor. She testified that there was no light in the hallway and that there was no switch in the hallway for the stairway which lead to the dining room, as that switch was located at the bottom of the stairway. When plaintiff reached the door leading to the roof, she was carrying a large purse which was about 2% to 3 inches wide at the top and between 12 and 15 inches in both depth and width. She opened the door and then proceeded to open a screen door with her right hand, while the purse was on her left arm. Her testimony as to the lighting at the doorway was that there was a light at the doorway but she could not remember whether it was over or to the side of the door, but she did describe the light as “a small light, dim light, it was not a bright light.” She stepped down and fell to the planking floor. When asked how the accident happened, she said, “I stepped down and there was terrible pain, and I fell and just sat down on the porch and on the deck floor and my ankle swelled just immediately.” She was questioned as to whether she looked down before she took the step on the threshold, and she stated, “I cant remember. I couldn’t say.” The injuries for which she seeks to recover damages consist of a badly sprained ankle, pain, and a resulting weakness of the ankle. There were no fractures. Her total expense arising out this injury was $54.50, which consisted of x-ray and doctor bills.

Plaintiff’s testimony on trial does not mention the height of the step involved, but her nephew’s testimony reveals that the roof was tar paper with a wooden planking laid upon it, and that the threshold of the door was raised 10 to 12 inches from the tar paper, or after allowing for the thickness of the planking on the roof, about P/2 inches less than the 10-to 12-inch height hereinbefore referred to. However, it does appear that her nephew never measured the distance from the planking to the threshold and was not sure what it would be.

Plaintiff also testified that she had been to her nephew’s room in the months of June and July approximately ten times, and two or three of those times were after dark. She further testified that she did not always use the roof door but sometimes used the other door. Plaintiff and her husband spent one night in her nephew’s room while he was out of town.

All of the testimony hereinbefore stated is uncontradicted. There was no testimony that the plaintiff could not see the step before she proceeded to step down or that there was any foreign matter on the step. In fact, there is no testimony that she looked before she stepped down. Thus, there is no testimony substantiating her contention that she was in the exercise of due care at the time of the accident or that would negate contributory negligence on her part. This is not a situation where the plaintiff was in unfamifiar territory as her testimony indicated she was familiar with the premises and the step involved. We cannot say that the mere fact the step was 8Vz to lOVz inches high, without more, presents a question of negligence which should be presented to a jury, particularly when there is no evidence that the step was improperly lighted and that the plaintiff looked before she stepped.

Plaintiff has cited many cases wherein it was held that the court improperly directed a verdict, but none of them is analogous on the facts. Both parties agree that a verdict should be directed only when all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern RR. Co., 37 Ill.2d 494, 510.) Based upon this rule, the defendant’s motion for directed verdict at the close of plaintiff’s case was properly aUowed.

The judgment of the circuit court was correct and is affirmed.

Judgment affirmed.

SEIDENFELD and GUILD, JJ., concur.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    Flossie Bear, Plaintiff-Appellant, v. Holiday Inns of America, Inc., Defendant-Appellee.
    (No. 71-18;
    Second District
    November 11, 1971.

      Knowlton & Lenz, of Freeport, for appellant.
    Keegan & Gosdick, of Rockford, (Thomas A. Keegan, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The plaintiff, Flossie Bear, accompanied by two of her friends went to the Holiday Inn in Freeport, Illinois for the purpose of having dinner at the Inn’s restaurant. The plaintiff entered the lobby and as she was proceeding into the restaurant entrance area she fell down the step which separated the lobby from the lower level where the restaurant was located. She brought an action against the defendant, Holiday Inns of America, Inc., to recover for the injuries which she sustained, alleging that it negligently maintained the entrance area to the restaurant. The jury returned a verdict for the defendant, judgment was entered on the verdict and the plaintiff appeals from that judgment.

The plaintiff contends that the court erred in refusing to tender two of her instructions to the jury. However, we are precluded from reviewing these instructions because the plaintiff did not abstract them. It is well settled that “all instructions must be abstracted and the party tendering them identified before they are available for review.” People v. Woodruff (1956), 9 Ill.2d 429, 440.

The plaintiff next contends that defendant's exhibits one and two, photographs of the area where she fell, should not have been admitted into evidence. These photographs were admitted after an employee of the Inn testified that from the day of the accident until the day the photograph was taken, no structural changes had been made in the entrance area except for the replacement of a small piece of carpeting. Upon defendant’s offer of the photographs into evidence, the plaintiff objected, stating that the conditions had changed since the day of the accident in that the carpeting had been replaced. The trial judge admitted the exhibits since the jury had already been clearly informed that the carpeting had been changed.

The plaintiff’s contention on appeal is that the photographs were inadmissible because there was no testimony that the lighting conditions existing when the photos were taken were the same as when the accident occurred. Although this lack of testimony might have precluded admission of the exhibits the plaintiff has waived all objections concerning the fighting conditions. At the trial her only objection concerned the change in the carpeting. Nothing was mentioned regarding the fighting conditions. The law is that:

“A party objecting to the introduction of evidence must specify the particular ground for the objection in all instances where the objection, if pointed out, might be corrected by the adverse party. (Citation omitted) An objection to evidence on a specific ground constitutes a waiver of the right to object to the evidence on other grounds. (Citation omitted.]” People ex rel. Blackmon v. Brent, (1968), 97 Ill.App.2d 438, 442-443.

If the plaintiff had objected to the lack of a foundation because of the fighting conditions the defendant would have had an opportunity to cure his defect. However, since no objection was made, the plaintiff is precluded from raising this new objection on appeal. See, Town of Cicero v. Industrial Com. (1950), 404 Ill. 487, 495; Forest Preserve Dist. v. Lehmann Est. (1944), 388 Ill. 416, 429.

The plaintiffs final contention is that the verdict is against the manifest weight of the evidence. We have carefully reviewed the record and find this contention to be without merit. Consequently, we must affirm the judgment entered in the trial court.

Judgment affirmed.

GUILD and SEIDENFELD, JJ., concur.


text:
    Hill Behan Lumber Company, Plaintiff-Appellant, v. Dominic L. Marchese, et al., Defendants-Appellees.
    (No. 71-16;
    Second District
    November 11, 1971.

      Benjamin Daidone, of Chicago, for appellant.
    Mirabella, Facktor, Mirabella & Kincaid, of Wheaton, for appellees.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered tire opinion of the court:

Plaintiff, a materialman, brought suit to foreclose a mechanics lien or, in the alternative, to impose an equitable lien upon the premises owned by the defendants, Dominic and Edith Márchese. The trial court held for the defendants and the plaintiff appeals.

In March of 1968, the defendants contracted with the defendant Nu-Look Construction Company for improvements to their home. Work was begun immediately. The testimony reflects that plaintiff was the sole supplier of lumber for that contract. From March 14 to April 17, several orders, for which plaintiff’s invoices indicate the Márchese address as the intended job site, were placed by Nu-Look. Some of these orders were delivered to the defendants’ premises by plaintiff, while others were picked up by Nu-Look. There is a final invoice dated May 10th which bears the defendant’s address as the intended job site. That order was picked up by Nu-Look, who subsequently, went into bankruptcy.

Plaintiff contends that the trial court’s findings as to the mechanic’s lien action was against the manifest weight of the evidence and that the court erred in not awarding, in the alternative, an equitable lien.

The decision of the court that plaintiff is not entitled to relief under the Mechanics’ Liens Act, (Ill. Rev. Stat. 1967, ch. 82, pars. 1 thru 39), rests on its finding that the materials listed on the May 10th invoice were not delivered to the defendants’ premises. The testimony on this issue is contradictory. The defendants testified that Nu-Look was ordered off their premises, and that they did no work after April 17th. Mr. Márchese also testified that various items contained in plaintiffs invoices, including all materials on that of May 10th, were either never installed or delivered, or not needed because of the completed stage of construction when ordered. The former officers of Nu-Look testifying as adverse witnesses stated that all materials listed on plaintiff’s invoices, indicating the Márchese address as the intended recipient, including that of May 10th, were delivered there, and that no materials were thereafter removed from the premises.

The rule is that when the determination of a case depends upon contradictory facts in the record, a reviewing court will not disturb the findings of the trial court unless they are manifestly against the weight of the evidence. (Brown v. Commercial National Bank (1969), 42 Ill.2d 365, 371, Schulenburg v. Signatrol, Inc. (1967), 37 Ill.2d 352, 356, Brown v. Zimmerman (1959), 18 Ill.2d 94, 102.) A finding is against the “manifest weight” when “an opposite conclusion is ‘clearly apparent’, * * * or the finding * * * appears to be ‘unreasonable, arbitrary, and not based on the evidence * * *” Roth v. Lissner Iron & Metal Co. (1967), 88 Ill.App.2d 352, 355-356.

The testimony in this case was susceptible of more than one conclusion. From one review of the record we cannot say the trial judge’s finding that no material was delivered on May 10th was unreasonable, arbitrary and not based on the evidence or that an opposite conclusion was clearly apparent. Consequently, his findings were not against the manifest weight of the evidence.

There is no question but that the defendants were potentially liable to plaintiff under the Liens statute, sections 21 and 24, because of their failure to obtain the contractor’s sworn statement as required by section 5. (Liese v. Hentze (1927), 326 Ill. 633, 638, Fred C. Kramer Co. v. LaSalle Natl. Bank (1962), 36 Ill.App.2d 406, 413-414.) However, a condition precedent to the right of recovery by plaintiff was strict compliance with the statute. (North Side Sash and Door Co. v. Hecht (1920), 295 Ill. 515, 519.) Plaintiff did not serve its notice of lien until July 5, 1968. Since the trial court found that the last performance by plaintiff was in April, the plaintiff did not perfect its lien under the terms of the statute because it did not comply with the then 60-day notice provision of section 24.

Plaintiff also contends that it was entitled to an equitable lien on the grounds of unjust enrichment. We are unable to find any authority which would grant an equitable lien in a situation where it would have been appropriate to impose a mechanics lien had there been compliance with the statute. Our research reveals that the sole remedy of subcontractor against the owner of premises is under the Mechanics’ Liens Act. Traubco Food v. United Auto Workers (1970), 123 Ill.App.2d 106, Vanderlaan v. Berry Const. Co. (1970), 119 Ill.App.2d 142, 144, Suddarth v. Rosen (1967), 81 Ill.App.2d 136, 139.

Our case of Calacurcio v. Levson (1966), 68 Ill.App.2d 260, which was refied on by plaintiff, is distinguishable as not involving a suit by a subcontractor.

The judgment of the trial court was correct and must be affirmed.

Judgment affirmed.

SEIDENFELD and GUILD, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Charles Hall, Defendant-Appellant.
    (No. 71-47;
    Second District
    November 11, 1971.

      John R. Snively, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, (Ronald T. Wade, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The defendant, Larry Charles Hall, was indicted for the crime of armed robbery, found guilty in a bench trial and sentenced for a term of not less than five nor more than ten years.

On August 10, 1968, at 11:00 P.M., John Sarantou, the owner of a drive-in liquor store located in Rockford, Illinois was closing his establishment. He was being assisted by his employee, John Dixon. After locking the door Sarantou and Dixon were walking toward their automobiles when the defendant and another man came up to them and announced that “it was a stick-up.” The defendant was pointing a gun at Sarantou. The defendant and his partner ordered Sarantou to open the door to the store. He complied and all four men then proceeded inside the store where the defendant’s accomplice took money from both men and all the change that was in the cash register. The defendant then heard a whistle coming from outside the store and yelled, “Come on, let’s go.” The robbers pushed Sarantou and Dixon into a cooler, closed the door and fled.

Police officer Dennis E. Nielsen was in the process of answering the robbery call when he saw the defendant running near a lumber yard which was located ten to fifteen blocks from the scene of the crime. The defendant generally fit the description broadcast by the police. Nielsen stopped his car, searched the area and found the defendant crouching in the lumber yard. He was arrested, advised of his constitutional rights and searched. A paper bag containing twenty-five dollars, consisting of many coins and paper money, and a green coin purse stolen from Dixon, were found on the defendant. A gun, identified as the one brandished by one of the robbers, was found at the feet of the defendant.

At 1:00 A.M. the next morning, Officer Robert Walker advised the defendant of his constitutional rights and the defendant signed a statement indicating that he understood his rights and was waiving them. He then executed a written statement in which he admitted participating in the robbery. Later the same day, he was again advised of his rights and gave another statement, admitting he committed the crime.

The defendant alleges numerous grounds for reversal. He first contends that the indictment is fatally defective in that it did not recite the selection and swearing of the grand jury or that the grand jury presented the indictment on oath. This court has already considered this contention and found it devoid of merit. (People v. Shockey (1966), 66 Ill.App.2d 245, 248; People v. Smith (1966), 66 Ill.App.2d 257, 260-61.) He also contends that the indictment was insufficient because it did not specify the time and place of the offense. Again, this court has considered this contention and found it devoid of merit. (People v. Shockey, supra, at 248-49. See also, People v. Blanchett (1965), 33 Ill.2d 527.) Defendant also contends that the indictment is defective in that it does not aUege that the offense was “against the peace and dignity of the People of the State of Illinois.” The Supreme Court in People v. Petruso (1966), 35 Ill.2d 578, 583, has held that this language is unnecessary.

The defendant also contends that the indictment is defective in that it does not charge an offense because of numerous aUeged omissions. However, this court has already considered these contentions concerning an almost identically worded indictment. In People v. Smith, 66 Ill.App. 2d 257, we held that the indictment was not defective. See, People v. Delafosse (1967), 36 Ill.2d 327.

The defendant next contends that his confessions are inadmissible based upon Miranda v. Arizona (1966), 384 U.S. 436. We have examined the record and find this argument untenable. The uncontroverted evidence is that the defendant was advised of his rights at the time of his arrest; that he was advised again the next day, signed a waiver in which he stated that he understood his rights and then made his first confession; that later the same day he was again advised of his rights and stated that he understood his rights. The defendant, in his brief, merely recites what Miranda stands for and alleges that he was deprived of his rights; he does not allege any facts, nor can we find any, which would make his confessions inadmissible. See, People v. Parks (1971), 48 Ill.2d 237-238.

The defendant next contends that the money which was recovered from him upon his arrest should not have been admitted into evidence. This contention is based upon the allegation that the money was not sufficiently identified. The law concerning the admissibility of the monetary proceeds of a robbery is that the currency:

“* * * is admissible if there are sufficient facts to connect it to the crime in question. It is then for the jury to determine as a question of fact, the identity of the money.” People v. Smith (1965), 63 Ill.App. 2d 369, 378. See also, The People v. Weaver, 18 Ill.2d 108, 113.

The evidence was that forty to sixty dollars in change was taken from the cash register and that between thirty-five and forty dollars was taken from Sarantou and Dixon; that over eight dollars in change (some of it in rolls) along with approximately fifteen dollars in bills was found in a paper bag in the defendant’s possession; that Dixon’s coin purse was also found on the defendant’s person. These are sufficient connecting facts to admit the money and it was for the trier of fact to determine the weight which should be given to this evidence. (People v. Smith, 63 Ill.App.2d at 378-79.) The defendant relies upon People v. Smith (1962), 25 Ill.2d 428, for the proposition that the money should not have been admitted. However, that case was decided upon the fact that possession of the money by the defendant was not sufficiently proven. There is no question as to possession in the case at bar.

The defendant also contends that there was a fatal variance between the allegations and the proof in that there was no proof that the money was taken had value or was legal money. Again, this court has already considered this contention and found it to be without merit. People v. Smith (1966), 66 Ill.App.2d 257, 265; People v. Smith (1965), 63 Ill.App.2d 369, 382.

The defendant next contends that there was no proof of the corpus delecti and that the evidence is insufficient to sustain the conviction. We cannot agree. After reviewing the uncontroverted evidence, the inescapable conclusion is that an armed robbery was committed by the defendant. The evidence clearly shows: that the defendant and his partner took the victims’ money including many coins at gun point and at knife point; that both victims identified the defendant in court as the man who held the gun; that the police found the defendant running in the area where the crime occurred; that the police found the gun used in tlie robbery at the defendant’s feet; that they also found in defendant’s possession a paper bag containing much change; that the green change purse stolen from one of the victims was in defendant’s possession; that after being advised of his rights the defendant confessed twice to the crime. Each element of the offense and the defendant’s guilt were both proven beyond a reasonable doubt. See People v. Smith (1966), 66 Ill.App.2d 257, 265-66.

The defendant’s most novel argument is that he had terminated his efforts and was no longer legally accountable for the crime since he was the one who suggested that the parties leave the store. This argument is based upon section 5—2(c) (3) of the Criminal Code (Ill. Rev. Stat. 1967, ch. 38, par. 5—2(c)(3)) which provides that a person who has aided and abetted in the commission of a crime can be released from liability by terminating his efforts prior to commission of the offense. (Emphasis added). The defendant’s contention is completely unpalatable in that at the time that defendant said “Let’s go” all necessary elements of the crime had been completed.

The defendant’s final argument is that he should have been released on probation, or in the alternative, the sentence was excessive and should be reduced. This contention is based on the fact that the defendant had never been convicted of a prior felony.

“* * * While we have the power to reduce the sentence, we cannot overlook the fact that the trial judge saw the defendant and heard all of the testimony. He is in a better position to appraise the situation and determine which sentence will best serve the interests of society. Therefore, we should not intercede, absent a clear and substantial ground.” People v. Shockey, supra, 251.

The trial judge was greatly concerned with the fact that the crime was committed at gun point and that in his confession the defendant indicated a total disregard for the rights of others. In this instance we cannot find that the trial judge abused his discretion.

Finding no error, we must affirm the decision of the trial court.

Judgment affirmed.

GUILD and SEIDENFELD, JJ., concur.


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Arinza Martin, Defendant-Appellant.
    (No. 70-116;
    Third District
    October 29, 1971.
    Bruce Stratton, of Defender Project, of Ottawa, for appellant.
    Edward P. Drolet, State’s Attorney, of Kankakee, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

Defendant was convicted at a jury trial upon a charge of “Unlawful Use of Weapons” in violation of Chapter 38, Sec. 24-1 (a) (7), Ill. Rev. Stat. 1969. Defendant appeals.

An issue presented upon appeal is whether the evidence supports a conviction of the violation charged.

At the time of the arrest, defendant was the driver of a car owned by Robert Lott, Jr., who was seated in the rear on the right side. Melvin Rush was seated to the right of the driver. After defendant and Rush left the car, the arresting officer saw Lott trying to put something under the front seat. He ordered Lott out of the car. When Lott started to climb out of the back seat a trench coat was pulled aside uncovering the barrels of a shotgun. The gun was lying right next to Lott on the back seat. It had a sawed-off barrel of less than 18 inches.

All three passengers were indicted. Lott, the owner of the car and the rear seat passenger, who had been sitting on or next to the gun, jumped bond and was not present at the trial. The only witness at the trial was the arresting officer.

At the close of the State’s case both Rush and defendant Martin made a motion for directed verdict. The motions were allowed as to Rush but denied as to Martin on the theory that the jury could infer that Martin was in constructive possession by reason of his driving the car.

To apply the doctrine of constructive possession there must be a showing that the defendant had the immediate and exclusive control of the area where the items allegedly possessed were situated. People v. Millis 116 Ill. App.2d 283.

It is clear from the evidence in this case that the gun was in the possession of Lott, the back seat passenger.

As the conviction cannot be sustained upon the evidence, it is not necessary to consider the other issues raised by defendant.

Judgment reversed.

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


author: Mr. JUSTICE STOUDER

text:
    Albert C. Fuller, Plaintiff-Appellant, v. Standard Oil Company of Indiana, et al., Defendant-Appellees.
    (No. 70-210;
    Third District
    November 5, 1971.
    Cassidy and Cassidy, of Peoria, for appeHant.
    Heyl, Royster, Voelker & Allen, of Peoria, for appellees.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff-Appellant, Albert Fuller, brought this action on a travel accident policy issued by Imperial Casualty and Indemnity Company, Defendant-Appellee. Pursuant to defendant’s motion for summary judgment the court decided the issues in favor of defendant and entered judgment against plaintiff on his complaint from which judgment this appeal follows.

On April 27, 1965, Mary Lou Fuller died as a result of a crash of a private airplane. At the time of her death she was the named insured and plaintiff was the beneficiary in a travel accident policy issued by defendant. Defendant denied coverage claiming that the cause of death was not within the coverage afforded by the policy.

In recent years many companies having extensive credit or credit card systems have used such credit customers as prospective sources for the sale of merchandise and other services not directly related to the business of the company. Hie defendant, Imperial Casualty and Indemnity Company, is a subsidiary of Standard Oil of Indiana and the latter company issued a credit card to Albert and Mary Lou Fuller. As such credit card holders the Fullers received a letter, brochure and application for travel accident insurance from the defendant company in December, 1962. Mary Lou Fuller completed the application as insured, named her husband the plaintiff, Albert Fuller, as beneficiary and forwarded the application to the company in the latter part of December, 1962. The charges therefore were billed against their credit card account effective January 1, 1963. The defendant company issued its insurance policy and delivered the same by mail to the Fullers sometime during the latter part of January, 1963, but according to Albert Fuller, neither of them examined the provisions of the policy.

This dispute arises because of plaintiff’s claim that the letter, brochure and application provided different coverage than that afforded by the policy as issued. In particular it is claimed that the letter-brochure included coverage for loss arising out of the operation of private aircraft which coverage was not included in the policy as issued. It is defendant’s position that the policy as issued governs the rights of the parties but in any event the provisions of the letter and brochure make no representation that the coverage claimed by plaintiff was included. The advertising brochure contained the following statement, “* * * a policy designed especially for people who travel”, “you and your wife can obtain this protection through the credit you have established as a STANDARD credit card customer, just as you purchase gasoline and your other motoring needs” and “BENEFITS: This broad travel accident policy insures you anywhere in the world * *

One page of the brochure is entitled, “Principal Policy Provisions”. It then proceeds to say, “Insures you anywhere in the world against accidental loss of life, limb or sight resulting from injury sustained while riding as a passenger in (but not as an operator of), boarding or alighting from any air, land or water common carrier (a vehicle licensed to carry passengers for hire); or while in, operating, entering alighting from any private passenger automobile licensed as such by the State or Country of its registry; or through being struck by any automobile or common carrier. The word ‘Automobile’ means a land motor vehicle not operated on rails or crawler treads and does not mean farm type tractors nor any equipment designated for use principally off public roads.” The next four lines describe the benefits namely $25,000 for loss of life or any two members of the body and $12,500 for loss of any one member of the body. This page then indicates that policies will be issued for periods of six months for premium of ten dollars. Then appears a subtitle, “Exclusions” and the description thereof as follows, “The policy does not cover loss resulting from suicide or self-distraction, bacterial infections, medical or surgical treatment, war or act of war, while in the armed forces of any country at war, any vehicle being tested, time tested or participating in races, speed contests or exhibitions.” The closing paragraph on this page provides, “The above describes briefly the most significant features of this insurance. A policy will be issued to every credit card holder and wife or husband who applies.”

The policy when issued contained a similar insuring provision describing land, air or water common carriers and contained the exclusions referred to in the brochure quoted above. The policy contained an additional exclusion regarding, “* * * injury sustained while engaged in or taking part in aeronautics and/or aviation of any description or resulting from being in an aircraft except as provided in the definition of ‘injury of the policy.” The policy is described as a limited policy and advises the insured to read it carefully.

The facts disclose a method of doing business somewhat different than that traditionally employed in the sale of insurance. The facts also reveal the potentially knotty problem of distinctions between representations and advertising inducement. Barth v. State Farm Fire and Casualty Co. (Pa. 1969), 257 A.2d 671.

• 1 Much of the argument of the parties is devoted to a discussion of the question of whether the insurance policy as issued and delivered was or was not the only agreement between the parties. Defendant relies on the general rule that the provisions of the policy including coverage and exclusions set forth the only rights of the parties and plaintiff’s cause of action is not supported by such policy. (Metropolitan Life Insurance Co. v. Whitler, 172 F.2d 631.) Plaintiff concedes that his cause of action is contrary to the terms of the policy but insists that there was a prior contract between the parties which in accord to well established exceptions to the rule supports his claim that coverage exists.

It would appear that at least for some purposes and with respect to some aspects of the relation between insurer and insured the brochure and application may constitute a contract. See Klos v. Mobil Oil Co. (N.J. 1969), 259 A.2d 889, a case involving the same type of policy as that involved in the instant case, although the question was effective date of coverage rather than extent thereof. As is pointed out in the Klos case, the prospective insured becomes eligible for the insurance by his membership in the class, i.e. credit card holder, and the insurer does not retain the customary option or discretion to accept or reject an application pursuant to underwriting considerations.

However even if the brochure and application may be regarded as a preliminary contract such as is referred to as a binder in the insurance business, (Springfield Fire & Marine Ins. Co. v. Hubbs-Johnston Motor Co. (Tex. 1931), 42 S.W.2d 248 and Republic Ins. Co. v. French (10th Cir. 1950), 180 F.2d 796, we are unable to agree with plaintiff that any coverage was afforded by the terms of the agreement so entered into. The failure of the brochure to specify as an express exclusion injuries arising out of the operation of private aircraft does not mean that coverage therefore was afforded. An insuring provision itself may and usually does contain many limitations on the coverage afforded. In this case the language of the insurance offered as described in the brochure, refers to injuries while the insured is a passenger in a common carrier by air further defining such common carrier. The facts disclosed do not indicate that the insured’s loss of life occurred within the terms of the general insuring provision. Nor does the absence of a private aircraft exclusion create any representation or state of facts from which it may be reasonably inferred that it was the intention of either party to provide for such coverage.

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

Judgment affirmed.

ALLOY, P. J., and SCOTT, J., concur.


author: Mr. PRESIDING JUSTICE ALLOY

text:
    Earl B. LeMenger, Plaintiff-Appellant, v. Jack Fitzgerald, et al., Defendants-Appellees.
    (No. 71-76;
    Third District
    November 5, 1971.
    Adamowski, Newey & Riley, of Chicago, for appellant.
    O’Brien, Faulkner & Garrison, of Joliet, (James Garrison, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal by plaintiff Earl B. LeMenager from an order granting the defendants’ motion for judgment on the pleadings. The complaint in the cause prayed for judgment against Jack Fitzgerald, mayor of the city of Manhattan, Wallace Gustafson, David Murphy, Carl Winter, William Chillios, Douglas Blotti and Charles Blotti, asserted to be members of the corporate authority of Manhattan, which is organized as a village. The complaint alleged that the plaintiff was the owner of a multiple housing unit in the village of Manhattan and asserts that on

June 26,1969, the building was destroyed by fire which was of incendiary origin. There had been a series of incendiary fires in the area prior thereto. It is further alleged that subsequent to the fire, plaintiff learned that there was no police protection in the village that night, and that the failure to provide such protection was willful and wanton negligence on the part of the mayor and members of the corporate authority, because this fire was one of a recent series. It was also alleged that the defendants knew or in the exercise of reasonable care must have known, that all buildings in the village, including plaintiff’s, were in danger of incineration. Damages were claimed for loss of income, loss of recent improvements and cost of rehabilitation, and judgment was prayed for the sum of $60,000. Defendants filed a motion for judgment on the pleadings pursuant to section 45 of the Civil Practice Act. (Ill. Rev. Stat. 1969, ch. 110, par. 45(5).) The village was not sued, but only the mayor and members of the village board were made defendants. The trial court allowed the motion for judgment on the pleadings. The issue before this court, therefore, is whether a public employee is liable in damages for failure to furnish police protection under the facts alleged. The complaint alleged that a police department had been created by defendants, but that the department had been withdrawn and that there was no police department at the time of the fire.

The action for judgment on the pleadings was appropriate procedure in the instant case. (Ill. Rev. Stat. 1969, ch. 110 par. 45(5).) The significant provision of the applicable statutes involved in this cause (The Local Government and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1969, ch. 85, pars. 1—101 et seq.) is found in Article IV, pars. 4—102 of the Act, in which it is specifically provided:

“Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for a failure to provide adequate police protection or service, failure to prevent the commission of crimes and failure to apprehend criminals”.

In par. 1—207 of the same Act, “public employee” is defined as meaning an employee of a local public entity, and in par. 1 — 202 “employee” includes an officer, member of a board, commission or committee, servant or employee, whether or not compensated, but does not include an independent contractor.

It is thus apparent that the legislature by the Immunity Act granted extensive and specific immunity to public officials for failure to establish a police department or to provide any police protection or adequate police protection or for failure to prevent crimes. The statute in question has been expressly declared constitutional by the Supreme Court of this State in Maloney v. Elmhurst Park District, 47 Ill.2d 367, 265 N.E.2d 654.

The statute specifically grants immunity for failure to establish a police department or otherwise to provide police protection service. It likewise specifies that if police protection is provided, the public employee is not liable for failure to provide adequate police protection or service or for the failure to prevent commission of crimes or failure to apprehend criminals. The contention is made by plaintiff, on appeal in this cause, that a liability exists for the reason that the village authorities had established a police department and then had dissolved the program. We see no basis for liability resulting from such procedure.

The statute specifically states that failure to provide police protection does not subject the municipality or the employees to liability for such failure. There is nothing in the enactment which implies an intention to limit the immunity granted to a situation where a municipality fails to undertake a police program. We find no basis in the Act or otherwise for liability of municipal employees in a situation where a village undertakes a police program and then dissolves such police program. Had the legislature so intended, it would have so provided expressly. An illustration of such specific exception is noted in the Fire Protection Sections of Article V of the Immunity Act where there is a specific grant of immunity but where there is an exception to the effect that the Immunity Act does not exempt from liability for bad condition or negligent operation of motorized fire equipment (Ill. Rev. Stat. 1969, ch. 85, par. 5 — 103; Illinois Municipal Code, ch. 24, par. 1 — 4—4). No exceptions, however, are enumerated for any police functions.

We see no basis for liability in the cause before us through construction of the Act referred to. Certainly, the language of the Act which grants immunity for inadequate police protection or failure to prevent the commission of crime, clearly covers the situation where there had been a withdrawal of a previously established police system, since under the Act there is no liability if no police protection at all is furnished nor is there liability if police protection which is furnished is inadequate. The plantiff was, therefore, not justified in relying on police protection to protect him as against a potential incendiary destruction of his property with a consequential action against public employees if his property was destroyed. He could not have a cause of action if there was no police protection provided at any time nor could he have such action if there was some police protection even though completely inadequate. It follows, therefore, that no cause of action was stated in the instant case.

We must, therefore, conclude that the action of the Circuit Court of Will County in dismissing the complaint of plaintiff on motion was proper and should be affirmed.

Judgment affirmed.

STOUDER and DIXON, JJ., concur.


text:
    Milas R. Stone, Plaintiff-Appellee, v. Bertie L. Stone, Defendant—(Goldwin Nielsen, et al., defendants-Appellants.)
    No. 71-60;
    Third District
    November 10, 1971.
    Churchill & Churchill, of Moline, for appellants.
    Joseph Rosborough, of Moline, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

On March 23,1971, the circuit court of Rock Island County denied the motion of Appellants, Goldwin Nielsen and Richard Nielsen, to transfer the receivership or vacate the order appointing Appellee, Milas Stone, Receiver. This is an appeal from such interlocutory order pursuant to Supreme Court Rule 307 (b).

In 1962, the circuit court of Rock Island County entered judgment by default in favor of Milas Stone against his brother Bertie Stone in the amount of $2,285.29. The judgment represented one-half of the amount which Milas had expended for the care of their mother prior to her death in 1959 and the real estate taxes paid by Milas with respect to 50 acres of land devised by their father to Bertie Stone for his lifetime with remainder to Milas Stone. As part of the judgment order a check payable to both brothers in the total sum of $1,500, representing the proceeds of a sale of approximately two acres to the State of Illinois, was ordered to be endorsed by a Master in Chancery and one-half of the amount thereof credited against the judgment.

In 1967, Milas Stone in the same proceeding moved for the appointment of a Receiver with respect to the 50 acre tract and pursuant to such motion he was appointed Receiver. Included in the order of appointment was the direction that the Receiver send notice of his appointment by mail to Bertie Stone and Goldwin Nielsen, the lessee of the farm. In October, 1970, Milas Stone as Receiver filed his petition for writ of assistance to put him in possession of the 50 acre farm tract the Clerk being directed to give notice by mail thereof to Bertie Stone, Goldwin Nielsen and Richard Nielsen. The abstract of the record does not indicate the disposition of this petition. However either in response to this petition or another petition of the Receiver the appellants, Goldwin Nielsen and Richard Nielsen, filed a motion which sought both to transfer the administration of the Receivership to Bureau County and to vacate the order appointing the Receiver. This motion was filed on March 23, 1971, and on the same date it was denied. Pursuant to Supreme Court Rule 307 (b) the appellants are seeking review of that part of the interlocutory appeal denying their motion to vacate the order appointing the Receiver.

In seeking to reverse the order of the trial court appellants argue the order appointing the Receiver should have been vacated because first, with respect to bond, notice and hearing the order was contrary to Ill. Rev. Stat. 1961, ch. 22, par. 54 and second, appointment of Receiver was improper because legal remedies had not been exhausted.

That part of the motion seeking to vacate the order appointing the Receiver provides, “1. That the above action was in reality a complaint for money damages as evidenced by the original complaint filed herein. 2. That Plaintiff obtained the Order Appointing Receiver by default and without legal justification — legal remedies available to Plaintiff as evidenced in the order for entry of judgment. 3. That said Goldwin Nielsen and Richard Nielsen are present Lessee and Sublessee of said property, under a lease dated December 8, 1964 and extension of said lease dated July 27,1970, for a term extending to January 1,1976. 4. That said Lessee and Sublessee are in physical possession of said premises and are farming said lands. 5. That said Plaintiff is attempting to utilize the equitable powers of this Court to unjustly benefit himself in satisfying his judgment deficiency. 6. That Plaintiff has various legal remedies available to attempt to satisfy said judgment. WHEREFORE Goldwin Nielsen and Richard Nielsen PRAY that the receivership in Milas Stone heretofore ordered by the Court be vacated and the Plaintiff ordered to proceed in conformity with other legal remedies and that any orders entered subsequently in connection with said Receivership be null and void.”

From an inspection of the foregoing motion it is clear that the alleged failure of Milas Stone to comply with Ill. Rev. Stat. 1961, ch. 22, par. 54, was not mentioned in such motion and has been raised for the first time on appeal. Such claim of error comes too late and may not be considered by a Court of Review.

We are also disposed to hold that the motion is insufficient to support the claim of appellants that the appointment of the Receiver was improper as a matter of law because of the existence of other legal remedies.

The general rule is that a Receivership is an extraordinary ancillary remedy which should be exercised with great caution and sound discretion, and only after a party has exhausted his remedies at law. This rule according to appellants requires the appointment of the Receiver to be vacated and in support of such position appellants rely on Schack v. McKay, 97 Ill.App. 460, and Fox v. Fox Valley Trotting Club Inc., 349 Ill.App. 132, 110 N.E.2d 84. Such cases in our view do not persuasively support appellants’ position. Each case involves the appointment of a Receiver pendente lite and in each case the propriety of the appointment is immediately challenged by the defendant named in the principal action.

In examining appellants’ motion and the facts of this case we think there are several reasons why appellants’ motion fails to support the relief sought. Although we have some doubt concerning the interest or standing of plaintiffs regarding the question of the propriety of the appointment of the Receiver (the matter is only inferentially alluded to in the briefs of the parties) we have no doubt that the motion is insufficient in other respects. According to appellants’ motion their possession in 1971, was derived from a lease extension entered into in July, 1970, nearly three years after the appointment of the Receiver, yet the motion fails to indicate that appellants either were unaware of the appointment of the Receiver at the time of the execution of the extension or shortly after the Receiver’s appointment. On the contrary the record shows that appellants did know of the appointment. The order of the appointment itself provided that notice be given Bertie Stone and Goldwin Nielsen within 10 days after the appointment and the petition for writ of assistance filed in October, 1970, affirmatively asserts that such notice was given and this fact has not been denied by appellants. If appellants did know of the appointment and took no action they must be deemed to have acquiesced in the appointment and are now in no position to complain. Roby v. Title Guarantee and Trust Company, 166 Ill. 336.

The motion refers to other legal remedies but fails to specify what such legal remedies might be. Nor does such allegation specify whether such legal remedies are available against movant or against someone else. Additionally it should be noted there is an absence of any allegation of any injury present or future which the appellants sustained at the time of the appointment of the Receiver.

There were other grounds indicated in the motion for the appointment of the Receiver as filed in 1967, in addition to the balance due on the judgment. They include waste and deterioration of the property by the defendant life tenant or the persons in possession claiming through him as well as abandonment of the premises by the persons purportedly in possession thereof. It also appears that the defendant Bertie Stone was not a resident of the State. (Chicago Title and Trust v. Johnson, 268 Ill. App. 184.) Failure of appellants’ motion to negate the other grounds supporting the appointment of the Receiver which are disclosed by the pleadings furnishes an additional basis for concluding that appellants’ motion is insufficient.

For the foregoing reasons the judgment of the circuit court of Rock Island County is affirmed.

Judgment affirmed.

ALLOY, P. J„ and DIXON, J., concur.


author: Mr. JUSTICE STOUDER Mr. JUSTICE SCOTT

text:
    Joyce M. Louden, Petitioner-Appellee, v. Daryl “Pete” Thompson, Defendant-Appellant.
    (No. 70-219;
    Third District
    November 16, 1971.

      SCOTT, J., dissenting.
    Franlin S. Wallace, of Rock Island, for appellant.
    Kritzer, Stansell and Critser, of Monmouth, and Fort and Fort, of Stronghurst, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

In the general election of November, 1970, the contest for sheriff of Henderson County resulted in Joyce Louden, Republican and Daryl Thompson, Democrat, each receiving 1,869 votes as shown by the official canvas. The tie vote was resolved by lot in favor of Thompson and he was declared the winner of the election. Louden filed a petition to contest the election and Thompsons motion to dismiss the petition for failure to state a cause of action was denied. Thereafter Thompson answered the petition and included an affirmative defense based on the results of statutory discovery. After hearing evidence the court ordered a recount and it is from such order that respondent Thompson has appealed.

The facts as disclosed by the pleadings and evidence are undisputed. In addition to the facts already alluded to, it appears that pursuant to an agreement, Louden and Thompson each requested discovery with relation to twenty-five percent of Henderson County’s total of twelve precincts. At the request of each, three precincts were recounted for a total of six precincts subjected to statutory discovery. The results of the discovery were incorporated in petitioner’s complaint and were made the basis of respondent’s affirmative defense. It is admitted that the results of the discovery showed a net increase of five votes in favor of Thompson compared to the vote shown by the official canvas.

In seeking to reverse the order of the trial court, appellant argues that neither the allegations of the petition nor the evidence are sufficient to support the recount order.

As observed in Zahray v. Emricson, 25 Ill.2d 121, 182 N.E.2d 756, “Repeated decisions have firmly established that the purpose of a proceeding to contest an election is to ascertain how many votes were cast for or against a candidate, or for or against a measure, and thereby ascertain and render effective the will of the people. (Smith v. Township High School Dist., 335 Ill. 346, 167 N.E. 76; Wagler v. Stoecker, 393 Ill. 560, 66 N.E.2d 408.) Equally certain is the principle that the proceeding cannot be employed to allow a party, on mere suspicion, to have the ballots opened and subjected to scrutiny to find evidence upon which to make a tangible charge. (Kreitz v. Behrensmeyer, 125 Ill. 141, 17 N.E. 232; Shouse v. Dieterich Community Unit School, 3 Ill.App.2d 474, 122 N.E.2d 837.) And while the pleadings in contest proceedings are not required to comply with the strict technical rules applicable in civil actions, there should be such strictness as will prevent the setting aside of the acts of sworn officials without adequate and well defined cause. (See: Joyce v. Blankenship, 399 Ill. 136, 77 N.E. 2d 325; Smiley v. Lenane, 363 Ill. 66, 1 N.E.2d 213; Smith v. Township High School Distl, 335 Ill. 346, 167 N.E. 76; 29 C.J.S. Elections, Sec. 267.) Stated otherwise, there should be no reason for a recount of the votes unless there is a positive and clear assertion, allegation or claim that such a recount will change the result of the election.” The court then proceeded to hold that the petition was insufficient to justify a recount.

In support of the trial court’s order it seems to be petitioner’s theory that errors or mistakes causing a change in the numerical vote totals is a change in the result authorizing a recount. This is true according to petitioner even though the changes in vote totals caused by error or mistake do not favor the defeated candidate. We find no support for this argument.

According to the court in Zahray v. Emricson, supra, the petition ". . . neither alleges that the irregularities complained of changed the result of the election, nor does it allege facts which show that the irregularities would have such a result, and which if proved would render it the duty of the court to declare a defeated candidate elected.”

The determination of an election by lottery when the candidates have received an equal number of votes is no less the “result” of the election than if the successful party had received a plurality of one vote, ten votes or one thousand votes. Consequently the change in result which is a necessary condition before a recount is appropriate refers to allegations and proof that the candidate previously declared defeated would, as a result of the errors or mistakes, be the successful candidate.

So far as the allegations and proof are concerned petitioner concedes the only errors or mistakes described in the petition or shown by the evidence do not either, considered separately or cumulatively, show any change in the vote totals favorable to her. On the contrary it appears that respondent showed a new gain of five votes from six precincts referred to. Under the circumstances the only conclusion which can be drawn is that the petitioner 'hoped” to discover errors or mistakes in a recount which might be favorable to her. Such a reason is not an appropriate basis for a recount.

For the foregoing reasons the judgment of the circuit court of Henderson County is reversed.

Judgment reversed.

ALLOY, P. J., concurring.

Mr. JUSTICE SCOTT

dissenting:

The majority opinion ignores the main thrust of the opinions of the cases cited by both petitioner and respondent; that the purpose of the election contest is to determine the will of the people. (Wagler v. Stoecker, 393 Ill. 560, 66 N.E.2d 408.) When an election results in a tie vote decided by lot and the record shows obvious differences in the tabulation of the vote in the election results and later counting of the votes for the purpose of discovery, it is unrealistic to state that the petition for recount was filed on “suspicion”.

The discovery procedure is intended to give each candidate the opportunity to examine the votes cast and it is not intended to be the basis upon which a reviewing court may prognosticate as to the eventual result of the proposed recount.

The rule relevant to the facts before the court is that the petition for recount must allege that irregularities complained of would change the election or allege such facts which, if proven, would change the results of the election. (Zahray v. Emricson, 25 Ill.2d 121, 182 N.E.2d 765.) It was not, in my opinion, a rule meant to penalize counsel who knows full well he cannot foresee the results of a recount but who does have adequate facts to cause him to believe a recount will change the results and sets forth such facts in his petition.

I believe the trial court had ample facts from the petition on file to order the recount in question.