text:
    Claude J. Flynn, Plaintiff-Appellee, vs. George E. Mahin, Director of Revenue, et al., Defendant-Appellant.
    (No. 11450;
    Fourth District
    August 10, 1971.

      Rehearing denied August 31, 1971.

      William J. Scott, Attorney General, of Springfield, (James M. Winning, special assistant Attorney General, of counsel,) for appellant.
    Kleiman, Cornfield & Feldman, of Chicago, (Gilbert Feldman of counsel,) for appellee.
   Mr. JUSTICE WEBBER

delivered the opinion of the court:

The plaintiff filed an action for declaratory judgment in the circuit court of Sangamon County. The defendant Director of Revenue answered and both parties filed motions for summary judgment. No evidentiary hearing was held, it having been stipulated that there was no dispute as to the facts raised by the pleadings. The circuit court considered briefs and arguments and allowed the plaintiff’s motion and dismissed the defendant Director’s motion. This appeal followed by the defendant Director of Revenue only.

In brief, the pertinent stipulated facts are as follows. The plaintiff was a certified merit employee in the Department of Revenue with the rank of Excutive III. On January 16, 1968, he was promoted to Executive IV. On January 23, 1968, under proper procedures required by the Personnel Code (Ill. Rev. Stat. 1969, ch. 127, pars. 63b101 et seq.), the rank of Executive IV was exempted from Jurisdiction B, under which persons must hold appointments on a basis of merit and fitness. On May 7, 1970, the defendant Director discharged the plaintiff.

The plaintiff then filed the instant suit, claiming in substance that he was still a merit employee and could not be discharged without the procedures required by the Personnel Code for the dismissal of merit employees. Plaintiff relies at bottom on Rule 2 — 190f promulgated by the Director of Personnel and in force at the time of his discharge. The rule is as follows: “Certified: For persons having successfully completed the probationary period. If a certified employee’s position is declared exempt from Jurisdiction B, he shall retain his status in that position.” The defendant Director answered and in substance claimed that the rule was void and hence plaintiff could be discharged summarily.

The trial court filed a memorandum opinion, followed by a written judgment order, the pertinent provisions of which are as follows:

“* * * the Court 4,00 being fully advised as to the premises finds:
1. That this Court has jurisdiction of the subject matter of this suit and the parties hereto.
2. That the Plaintiff, Claude J. Flynn was a certified merit system employee under the Personnel Code of Illinois in the Department of Revenue with the position and title of Executive III from May 1962 until January 16, 1968.
3. That on January 16, 1968, Plaintiff’s position and title was reallocated from Executive III to Executive IV.
4. That on January 23, 1968, the Civil Service Commission exempted the position of Executive IV from Jurisdiction B of the Personnel Code pursuant to Section 4d (3) and that Plaintiff was not a party to any proceeding whereby his position was exempted.
5. That on May 7, 1970, the Defendant, George E. Mahin as Director of Revenue discharged the Plaintiff.
6. That the discharge of the Plaintiff was not approved by the Director of Personnel of Illinois and is not based upon any cause or written charges.
7. That it was the legal duty of the Defendant, George E. Mahin in his capacity as Director of Revenue to comply with and carry out the provisions and the rules of the Department of Personnel.
8. That the validity of said Rule 2-190F can only be attacked directly by making the Department of Personnel, the promulgator of the rule, a party to the suit.
9. That the Defendant, George E. Mahin, cannot attack the said rule collaterally by discharging an employee.
10. That the cases attacking the validity of the rule are not applicable in the instant case as hereinabove set out.
11. That the cases cited by the Defendant directed to the validity of the Rule are not applicable in view of the hereinabove findings of this Court.

THEREUPON, IT IS ORDERED, ADJUDGED AND DECREED THAT:

1. The Motion of the Plaintiff for Summary Judgment is allowed, and the Court declares that the Plaintiff as a certified merit system employee under the Personnel Code and the rules of the Department of Personnel was improperly discharged.
2. The Motion of the Defendant for Summary Judgment is accordingly denied.
3. Defendant George E. Mahin immediately reinstate Plaintiff Claude J. Flynn to his position as a certified merit system employee in the Department of Revenue of Illinois, with the position and title of Executive IV.
4. Plaintiff Claude J. Flynn be paid full back pay from the date of his unlawful discharge. The question of the amount thereof to be reserved by this Court pending the results of any appeal taken from this Order, and further proceedings by this Court.
5. Defendant George E. Mahin and each of his agents and assistants afford Plaintiff Claude J. Flynn with such responsibilities, working space and staff as are commensurate with the position and title of Executive IV.
6. The Clerk of the Court issue this Court’s permanent injunction addressed and directed to the Defendants herein, which injunction shall prohibit said Defendants from acting in contravention to the commands of this Order.
7. The costs of this proceeding are taxed in favor of the Plaintiff and against the Defendant.
8. The Court expressly finds, pursuant to Section 304(a) of the Rules of the Illinois Supreme Court that there is no just reason for delaying enforcement of an appeal from this Order and it is, therefore, certified that the issues herein involved are immediately appealable.
Entered non (sic) pro tunc as of September 30, 1970.”

At this juncture the chronology of events as disclosed by the record filed in this court becomes significant. The trial court’s memorandum is dated August 7, 1970, and file marked by the circuit clerk August 10, 1970. The written judgment order, as set out above, is file marked by the circuit clerk October 5, 1970.

Meanwhile, on September 30, 1970, the record discloses that Allen A. Drazek, Director of Personnel of Illinois, appeared and after being granted leave of court, filed a cross-complaint for declaratory judgment instanter. All parties were ordered to file responsive pleadings within 30 days.

Notice of appeal was filed October 5, 1970, the same day that the written judgment order was filed, and proof of service on the Director of Personnel was made. Notwithstanding, there are no pleadings by the Director of Personnel in the short record submitted to us nor are any asked for in the praecipe filed by the Director of Revenue.

We desire to make plain that our holding in this case is not to be construed as any criticism of the trial court. His decision was made and reduced to writing on August 7, 1970, and was based on the record as it then appeared to him. At that time the Director of Personnel seemed to be in default. The events which transpired subsequent to the August 7th date have led us to our conclusions.

The presence of the Director of Personnel in this suit is the pivotal fact and dispositive of the issues. He was made a party defendant upon the filing of the complaint on May 7, 1970, and as pointed out above, filed pleadings on September 30, 1970; yet the judgment order of the trial court, filed nunc pro tunc as of the same date, totally ignores the Director of Personnel. It states that it is based upon “Plaintiff's Complaint for Declaratory Judgment and Temporary Injunction and the Answer of the Defendant George E. Mahin, Director of Revenue of the State of Illinois, and both parties having filed Motions for Summary Judgment * # The relief sought in plaintiff’s complaint is identical as to both defendant Directors. We are thus led to the conclusion that there existed here, if at all, a single cause of action.

We hold that summary judgment in this case was improper and that there can be no partial disposition of a cause of action by way of summary judgment.

Our summary judgment statute (Ill. Rev. Stat. 1969, ch. 110, par. 57) was modeled on the Federal system. In the Smith-Hurd edition of our statutes, the following Joint Committee Comment appears under section 57 of chapter 110: “Section 57 provides for a summary judgment procedure of wide scope patterned upon that established by Federal Rule 56.”

The Seventh Circuit Court of Appeals was called upon to construe Federal Rule 56 in at least two cases which apply to the case at bar.

In Biggins v. Oltmer Iron Works, 154 F.2d 214, the court said at page 216: ‘We observe in the beginning and will attempt to show that this rule (56), in our opinion, does not contemplate a summary judgment for a portion of a single claim in suit. Neither does any other rule of the Rules of Civil Procedure so contemplate, as far as we are aware.”

In Commonwealth Insurance Company of New York v. O. Henry Tent & Awning Company, 266 F.2d 200, the court cited with approval the above language from Biggins and then went on to say: * * we approve the language used in Biggins as it applies to the controversy before us, and we adopt it as a part of this opinion. The controversy in the case at bar is a single claim * * *. In countless opinions federal courts have expressed a disapproval of piece meal litigation * *

We are here faced on the record submitted to us with a bifurcated case; one branch (i.e., relief as against the Director of Revenue) is in this court; another branch (i.e., relief as against the Director of Personnel) remains in the trial court. Yet the sole question to be determined is the validity, or invalidity, of Rule 2—190F.

In this state of the record, we hold that this is piece meal litigation and we adopt the reasoning of the U.S. Seventh Circuit Court of Appeals. When a single claim is asserted by a plaintiff, summary judgment as to less than all defendants and upon less than the whole record is improper when the effect of that judgment will be the same as to all defendants.

In so holding, we make no determination on the merits of this controversy. That remains to be done by the trial court when the counterclaim of the defendant Director of Personnel and any responsive pleadings thereto by the plaintiff and the defendant Director of Revenue are considered in the context of the entire case, including any factual issues which might arise as a result of pleadings not before us.

We note in passing that the trial court made a finding under Supreme Court Rule 304(a) (Ill. Rev. Stat. 1969, ch. 110, par. 304(a)) which certified the immediate appealability of its order. We have already held this case to be piece meal litigation involving a single issue and therefore appellate jurisdiction cannot be conferred by such a finding. See Veach v. Great Atlantic & Pacific Tea Company, 22 Ill.App.2d 179, 159 N.E.2d 833; Ariola v. Nigro, 13 Ill.2d 200, 148 N.E.2d 787.

The judgment of the circuit court of Sangamon County is reversed and the cause remanded for further proceedings in accordance with the views contained in this opinion.

Reversed and remanded.

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


source: Caselaw Access Project

author: Mr. JUSTICE GUILD

license: Public Domain

text:
    Helen Strauch, Appellant, v. Charles Apartments Company, Appellee
    (No. 70-110;
    Second District
    August 25, 1971.
    Barclay, Damisch & Sinson, of Chicago, (Loretta Didzerekis, of counsel,) for appellant.
    Pretzel, Stouifer, Nolan & Rooney and Timothy J. Gillick, both of Chicago, for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

This appeal arises from entry of an order of judgment on the pleadings in favor of defendant landlord in a cause of action wherein the plaintiff tenant sought damages for personal injuries aUegedly sustained because of the landlord’s negligence. Plaintiff had filed a jury demand with her complaint, and the judgment was based on an exculpatory clause in a written lease which the trial court viewed as a complete defense as a matter of law for the defendant landlord.

Helen Strauch, the plaintiff tenant, entered into a two year written lease commencing November 1, 1967, for rental of an apartment in Elmhurst, Illinois, owned by the corporate defendant landlord, Charles Apartments Company. This lease is a Chicago Real Estate Board form for a heated apartment. The only typewritten insertions in it are the date, the names of the parties, the apartment number and street address (the City of Elmhurst and County of Du Page being printed), the commencing and ending dates of the term, the amount of monthly rental, the place of its payment, and the amount of the security deposit. Otherwise, the lease is printed and contains twenty-five provisions, twenty-four of them captioned in margins on each side of the page and set in print finer than the introductory paragraphs containing the typewritten insertions. Paragraph Nine of the lease contains the exculpatory clause in issue and is captioned in the margin Lessee Waives Damages.” Paragraph Nine reads as follows:

“Neither the Lessor nor his agents shall be liable for damages, to the Lessee or to any person claiming through Lessee (nor shall rent be abated) for injury to person or for damage claimed for eviction actual or constructive; this provision includes particularly but not exclusively all claims arising from the building or any part thereof being or becoming out of repair including appurtenances, equipment, furnishings, fixtures or apparatus located in the demised premises or in the building or premises of which said demised premises are a part, or from any act or neglect of Lessor or his agents or of any tenant or occupant of such building or of the premises of which such building is a part, or of the neighboring property.”

This paragraph is followed by additional provisions, a number of them favorable to the landlord, such as a right to confess judgment against the tenant, cumulative remedies for the lessor, payment by lessee of lessors legal expenses incurred or expended because of a breach of the lease agreements, waiver by lessee of all notices and demands which may be required by state statute relating to forcible entry and detainer, and a reservation that lessor’s rights are affected only by written waiver.

The complaint alleges that, while exercising due care, plaintiff suffered severe and permanent injuries in falling while traversing the common parking area of the apartment building because of defendant’s negligence in carelessly shoveling the snow so as to create an unnatural accumulation of snow and ice and in failing to warn tenants and pedestrians of the unsafe accumulation which had thus been created. Defendant answered, denying all allegations other than the location of the apartments, and filed interrogatories which plaintiff answered. Defendant subsequently filed an amended answer setting up the exculpatory clause in the lease as an affirmative and complete defense.

The record contains two replies by plaintiff to the affirmative defense. The first, filed October 21, 1969, raises the following two propositions:

“(1) There existed between the parties such a disparity of bargaining power that the lessee had no alternative but to accept the document in its tendered form, and
(2) That Paragraph Nine of the lease is as a matter of common law void and against public policy.”

Another reply by plaintiff was filed February 24,1970. On that same date defendant filed a motion for judgment on the pleadings and hearing was had. Plaintiff’s February 24th reply is an expanded version of the first reply and alleges additionally that an acute shortage of residential apartments existed in the City of Elmhurst when the lease was executed, that plaintiff s financial condition did not provide her with flexibility in seeking a tenancy outside Elmhurst, that defendant owned the only known major apartment complex in Elmhurst in that year, that there was disparity of bargaining power between the parties and an existing question of fact whether this disparity was so great as to prevent enforcement of the exculpatory clause in order to prevent great injustice.

The trial court entered judgment on the pleadings for defendant and denied plaintiff leave to file an amended reply to defendant’s affirmative defense. The transcript of the hearing, however, seems to indicate that this denial pertains not to the two replies in the record, but to still another reply contemplated by plaintiff and disclosed in the course of the hearing. It would concern the place of injury as related to plaintiff’s oral lease for garage space rather than to her written apartment lease with exculpatory clause.

The question here is whether the exculpatory clause contained in Paragraph Nine of the written lease constitutes a defense as a matter of law to plaintiff’s cause of action in view of those matters alleged in her replies and argued by her counsel at hearing. The concepts in conflict are the right to freedom of contract as opposed to common law responsibility to use ordinary care to avoid injuring others.

In 1953, the Illinois Supreme Court upheld an exculpatory clause in a business lease saying it was valid and enforceable “* * ° unless there is something in the social position or social relationship of the parties opposed to its operation.” The court observed that although lessee in that case inferred he had no freedom of choice and had either to accept what was offered or be deprived of the advantages of the relationship, there was “nothing in the record or the circumstances surrounding the parties to bear out this contention. This is a business lease.” Jackson v. First National Bank of Lake Forest (1953), 415 Ill. 453, 114 N.E.2d 721.

Six years later that court considered an exculpatory clause contained in a residential lease. The plaintiff did not seek strict construction of the clause, conceding it barred her recovery if valid, and argued it was invalid because contrary to public policy. The majority of the court, in an opinion written by Justice Schaefer, sustained the validity of that exculpatory clause, stating the subject was one “that is appropriate for legislative rather than judicial action.” A strong dissenting opinion by Justice Bristow and Chief Justice Daily deplored destruction of the concept of negligence and standards painstakingly evolved in case law and stated that only by blind application could Jackson be deemed determinative. The dissenters commented that while stare decisis has a strong social justification, it should not be used to stifle the growth of the law, and that the basis of voiding exculpatory clauses is that they are contrary to the public policy of discouraging negligence and protecting those in need of goods or services from being overreached by those with power to drive unconscionable bargains. O’Callaghan v. Waller & Beckwith (1959), 15 Ill.2d 436, 441 to 450, 155 N.E.2d 545.

The stage was thus set for a sequence of legislative and judicial action, and in that same year the legislature responded to the O’Callaghan decision with an act approved by the Governor which voided, as against public policy, all exculpatory clauses in leases other than in business leases in which a municipal corporation, governmental unit, or corporation regulated by a State or Federal Commission or agency was lessor or lessee. Ill. Rev. Stat. 1969, ch. 80, par. 15a.

The lease in question in this case was executed after the passage of that statute and prior to its invalidation by decision rendered March 27, 1969. On that date, the Illinois Supreme Court struck down the legislative declaration of public policy because it contained a discriminatory classification without any reasonable basis for granting immunity to governmental units and regulated corporations. Sweney Gasoline & Oil Co. v. Toledo, P. & W. RR. Co. (1969), 42 Ill.2d 265, 247 N.E.2d 603. In Sweney the plaintiff corporation was dealing in storage and distribution of petroleum products and leasing business premises adjacent to the tracks of the defendant railroad. The court said the relationship of lessor and lessee was primarily a matter of private concern, and that exculpatory agreements are ordinarily given effect in the absence of a contrary statute. The court stated: “This accords to the individual the dignity of being considered capable of making and standing by his own agreements.” Sweney Gasoline & Oil Co. v. Toledo, P. & W. RR. Co., at 267. It carefully preserved an exception to the flat application of this principle in the following language: “Where there is such disparity of bargaining power between the parties that the lessee has no practical choice but to accept what is offered, enforcement will be denied on the ground that it would result in great injustice * * *” Sweney Gasoline & Oil Co. v. Toledo, P. & W. RR. Co., at 267. The plaintiff lessee did not prevail in that case as the majority of the court said no facts were adduced in support of the inference that lessee had no choice and there was nothing in the relationship of the parties to prevent enforcement. Justice Schaefer dissented this time, saying the O’Callaghan case was a very close one and he “would hold that the statute, despite its invalidity, is an expression of public policy which fully justifies this court in now holding, as a matter of common law, that exculpatory clauses in leaseholds are void” but the majority view was as follows: “We have no way of knowing whether the legislature would have enacted the statute without the fatal exceptions; however, we are still of the opinion that this is a matter for the legislature.” Sweney Gasoline & Oil Co. v. Toledo, Peoria & W. RR. Co., 42 Ill.2d at 269.

The legislature promptly demonstrated that it would enact such a statute without the exceptions. It again acted in response to the decision of the Supreme Court, passing a bill at the 1969 session which sought to eliminate the constitutional defect and render all exculpatory clauses invalid. It was vetoed by the Governor on the ground that the public policy of Illinois favors freedom of contract.

Limitations upon freedom of contract have been upheld in many other areas of the law and are perceptively analyzed in Simmons v. Columbus Venetian Stevens Bldgs. (1958), 20 Ill.App.2d 1, 155 N.E.2d 372. To that court it appeared that the reasoning assigned, in Illinois and other jurisdictions, to hold void clauses relieving a party from his negligence channels itself into two general categories as follows:

“(1) If the parties who signed the contract were unequal in their bargaining power, and
(2) If there was some social relationship between the parties that would render the contracts unconscionable. Those two ideas have often been so intermingled that it cannot be clearly stated that the court is relying on one or the other of the ideas.” Simmons v. Columbus Venetian Stevens Bldgs., 20 Ill.App.2d at 26.

In Simmons, the court considered that Illinois has held void, because of the social relationship, contracts relieving the employer from negligence so far as the employee is concerned, and posed a provocative question: “* * s is it any more important that a man should have a safe place to work than that he should have a safe place to live * * *?” Simmons v. Columbus Venetian Stevens Bldgs., 20 Ill.App.2d at 27.

The Simmons court discussed the iUusory nature of freedom of contract in form leases in these terms: “When such form leases are made it is highly improbable that each of the printed clauses in the leases is subject to negotiation as a matter of offer and acceptance and therefore a matter of freedom of contract.” Simmons v. Columbus Venetian Stevens Bldgs., 20 Ill.App.2d at 27. It quoted comment of a legal writer, Professor Freidrich Kessler, Vol. 43 Columbia Law Review, 629, on standard form contracts in insurance matters, which he termed “contracts by adhesion”, because the court believed what he had to say is applicable also to the use of standard provisions in leases. Professor Kesslers comment at page 632 is as follows:

“Standard contracts are typicaffy used by enterprises with strong bargaining power. The weaker party, in need of the goods or services, is frequently not in a position to shop around for better terms, either because the author of the standard contract has a monopoly (natural or artificial) or because all competitors use the same clauses. His contractual intention is but a subjection more or less voluntary to terms dictated by the stronger party, terms whose consequences are often understood only in a vague way, if at all.”

The court said:

“This concept does not affect the actuality of consent or the binding nature of the agreement, but it does suggest that there remains little of the element of liberty to contract as one chooses, which is the essence of the public policy of freedom of contract. Does not it also suggest that where, in determining the validity of a particular clause, on one side stands the well established policy of the law that a person is hable for the negligent performance of his duty, and on the other side this fragment of a liberty — often limited by legislation and judicial decision, that perhaps the policy of responsibility should be superior?” Simmons v. Columbus Venetian Stevens Bldgs., 20 Ill.App.2d at 31.

We believe it is unrealistic not to consider whether the right to freedom of contract is more illusory than real in particular relationships.

Notwithstanding the chronological sequence of the judicial decisions and legislative and executive actions outlined above, we are constrained to foUow the O’Callaghan case in which the Supreme Court declared the existing policy of the State of IUinois with the majority of the court there holding that freedom of contract supersedes the voiding of exculpatory lease clauses as being contrary to public policy.

It is to be specifically noted that in the Jackson, O’Callaghan, and Sweney cases cited above, the respective plaintiffs were aUowed to try their cases and had opportunity to submit evidence as to the disparity of bargaining power. The plaintiff here is entitled to the same opportunity as her pleadings raise a question of fact.

In addition to this, in the instant case there appears to be a question as to whether or not there are in fact two leases. There is no question but that the plaintiff rented the apartment and signed a lease for a monthly rental of $133. Apparently she then entered into another agreement to rent a garage space for an additional $15. Plaintiff aUeges that aU the defendant did with regard to this was to raise the rental on the copy of its lease from $133 to $148. This was not done on plaintiff’s copy of the lease nor does either copy of the lease cover the rental of the garage space. The question then arises as to whether or not there was in fact an oral lease for the rental of the garage space. The question of the existence or not of an oral lease and disparity of bargaining power are questions of fact which should be determined by a jury. It was obvious that the court did in fact consider the question of the lease of the garage although it denied the plaintiff the right to file an amended reply stating that it was too late for the plaintiff to amend his pleadings. However, the issue was presented to the court and his ruling encompassed consideration of the possibility of the oral lease for the additional garage space.

Reversed and remanded.

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


author: Mr. JUSTICE BALES

text:
    Norman Reese et al., Plaintiffs-Appellees, v. E. M. Melahn et al., Defendants-Appellants.
    (No. 70-227;
    Second District
    August 25, 1971.

      Hall, Meyer, Fisher, Holmberg, Snook & May, of Waukegan, for appellants.
    Diver, Ridge, Brydges & BoIIman, of Waukegan, for appellees.
   Mr. JUSTICE BALES

delivered the opinion of the court:

The defendants appealed from a decree of the court in favor of the plaintiffs in which the court ordered that the defendants account to plaintiffs and render to defendants 20% of the net proceeds from rent, issuances, and profits; that a constructive trust be imposed; and that 20% of the defendant, Highland Memorial Park, Inc., its assets, income, real estate, and all other property required be transferred to the plaintiffs.

The issues presented for review are as follows:

1. Was there sufficient competent evidence to prove an agency existed between McDonald, a real estate broker, and the defendant, E. M. Melahn?
2. Would the evidence establish that plaintiffs and defendant were joint adventurers?
3. Was there sufficient competent evidence to prove a contract was made between plaintiffs and defendants?
4. May a constructive trust be imposed to prove plaintiffs’ interest? The land in this case, referred to as the Clark property, was subject

to use as a cemetery, and plaintiffs claim an interest in a cemetery project located on the Clark property.

In 1963 plaintiffs, together with Arthur B. McDonald, began a search for property adaptable to cemetery use. Several properties were shown, including the Clark property. McDonald introduced plaintiffs to possible investors, including defendant, E. M. Melahn, who had been engaged in road construction business for many years. The plaintiffs and McDonald met with Melahn, the plaintiffs presented a brochure of a memorial type cemetery, explained their backgrounds, and proposed that Melahn purchase the land and provide the money to operate the project; they to receive 50% of the ownership of the project as their interest. Melahn rejected this proposal and said that he would consider the matter further and would get back to them through McDonald.

An offer was made by Melahn, and communicated to the plaintiffs on October 25, 1963 through McDonald, in which he proposed to pay plaintiffs $7500.00 each year for their full time employment, and would set aside 20% of the stock of the planned cemetery project to be acquired by purchase.

Arthur B. McDonald died on September 15, 1966.

Reese and Doyle testified that in November of 1963, McDonald told them that Melahn was offering 20% for them, plus $7500.00 per year. They told McDonald they wanted 50% and rejected Melabais offer. McDonald then contacted another potential investor. Both Doyle and Reese testified that they told McDonald that they accepted Melahn’s offer. McDonald apparently called Melahn, telling him that Reese and Doyle had accepted his offer, that the detaffs would have to be worked out and a contract drawn.

Defendant, Melahn, was caHed as a witness under section 60 of the Practice Act and testified that there was a meeting with McDonald, Reese and Doyle, McDonald having suggested and arranged the meeting. He retained McDonald to acquire the Clark property. Without authority, McDonald started paying Doyle, and in turn was paid by Melahn, but that Melahn ordered the payments to stop. After McDonald’s death, Melahn paid to his estate $7600.00 for services rendered in connection with the cemeteiy land purchase.

McDonald requested Melahn to reduce the agreement to writing, but this was never done. The Clark property was conveyed to Highland Memorial Park Corporation.

Joe Huntley, an employee of McDonald, testified over objection of the Defendant as to a conversation between McDonald, Reese and Doyle. Joan Chamberlain, employed by McDonald, testified she wrote a letter of acceptance on behalf of Reese and Doyle of Melahn’s offer, and neither the original or the copy of the letter could be produced. She testified that the letter made no reference to the formation of corporations, capitalization, the total sum of money tó be advanced by Melahn, and made no reference to the Clark land, and no reference to when Reese and Doyle were to get an interest in the Park.

Phillip McDonald, son of the deceased Arthur B. McDonald, testified for the plaintiffs that the documents pertaining to the Clark farm which were delivered to him as the executor of his father’s estate were included in information dealing with the settlement of the commission on the sale, and that he had no other files.

It is the contention of the plaintiffs that McDonald was Melahn’s agent for negotiating an agreement with them, and the defendant maintains that there was no credible evidence upon which the court could find that such an agency existed. The plaintiffs approached McDonald for the purpose of finding an investor who could furnish the funds to advance the project they had in mind. McDonald contacted Melahn in an effort to obtain the funds. The fact that Melahn stated to the plaintiffs at their only meeting that he could contact them through McDonald is not evidence of agency. McDonald, after this first meeting, contacted others, prospective investors, and Melahn in his testimony denied that McDonald acted as his agent to negotiate an agreement with the plaintiffs. The plaintiffs frequented McDonald’s office, corresponded with him, and it is obvious that McDonald’s purpose was to obtain financing for the plaintiffs.

Both parties cite City of Evanston v. Piotrowicz (1960), 20 Ill.2d 512. The court in that case stated at pages 518 and 519: “Agency may be established and its nature and extent shown by parol evidence, whether direct or circumstantial, and reference may be had to the situations of parties and property, acts of parties, and other circumstances germane to the question, and if the evidence shows one acting for another under circumstances implying knowledge on the part of the supposed principal of such acts, a prima facie case of agency is established.

It is equally well settled that where the existence of an agency is an issue in a case where the alleged principal is a party, the mere statements of the agent made out of the presence of the principal, and not consequently approved by him, are not ample to establish the existence of such relationship.”

The burden of proof is upon the plaintiff to prove the existence of the alleged agency. The plaintiffs, in arguing that McDonald was an agent for Melahn, cite Stone v. Stone (1950), 407 Ill. 56, and a number of other cases.

It is the contention of the plaintiffs that McDonald was authorized to act as the agent of Melahn to negotiate an agreement with the plaintiffs, and they were allowed to testify as to conversations they had with McDonald to support their contention. If this were true, the court was in error in permitting Reese and Doyle to testify contrary to the Evidence Act (Ill. Rev. Stat. 1969, ch. 51, par. 4), the provision commonly referred to as the Dead Man’s Rule. Under this rule they were not competent to testify as to conversations or admissions to McDonald, and if McDonald were not Melahn’s agent, the conversations would not be admissible as hearsay. The trial court allowed Reese and Doyle’s testimony on the basis that Melahn testified he made an offer, and that it would be unfair not to allow them to testify in view of Melahn’s testimony. The agent was dead at the time of the trial, and section 4 of the Evidence Act cannot be disregarded simply because the principal was called under section 60. The law imposes the incompetency.

We believe there was not sufficient competent, relative and material evidence, direct and circumstantial, from which the trial court could reasonably conclude that McDonald was acting as agent for Melahn to negotiate a contract. It can only be concluded from the evidence that McDonald was the agent for the plaintiffs to secure financing for them from either Melahn or anyone else contacted by him.

Plaintiffs contend that there was sufficient competent evidence to prove that a contract was made between plaintiffs and defendant. The defendants cite Snow v. Schulman (1933), 352 Ill. 63, where the court states at page 71: “To constitute a contract and offer for acceptance, the acceptance must conform exactly to the offer, and although a reply to an offer purports to accept the offer, it is not an acceptance but is a counter-offer and does not create a contract where it adds qualifications and requires the performance of new conditions.”

It is evident from the record in this case that there was an effort on the part of the plaintiffs, as well as McDonald, to have the agreement reduced to writing as there appeared to be differences and additions which had to be included. There simply was not a meeting of the minds at the time Reese and Doyle claim they told McDonald they accepted the offer made to them through McDonald by Melahn. It can be reasonably concluded that the parties never understood there was a contract until it was reduced to writing. Melahn did not submit a written contract, and Doyle prepared a written memorandum, the contents of which is uncertain because there is no proof even as to its being mailed. This proposed venture involved valuable land, a considerable investment, and the future responsibilities and complexities of a transaction of this kind, which was not agreed upon in entirety by the parties and never reduced to writing.

The trial court was in error in concluding that the parties had a meeting of the minds on essential terms as the evidence does not support this.

In regard to the trial court’s decision in imposing a constructive trust, and as to whether or not the plaintiffs and defendant were joint adventurers, we believe that the cotut was in error. Both parties cite Ditis v. Ahlvin Construction Company (1951), 408 Ill. 416. In that case many steps had been taken in the establishment of the corporation involved, value of stock, and other steps had been taken in tire promotion of the business. The court, in that case, stated at page 425: “A joint adventure may be established without any specific formal agreement to enter into a joint enterprise and it may be implied or proved by facts and circumstances showing such an enterprise was in fact entered into. It is the nature of the enterprise undertaken that controls, not the form of the agreement. If a joint enterprise be proved, either by direct evidence or a mutual agreement, or by proof of facts and circumstances from which it is made to appear that such enterprise was entered into, tire law fixes the rights of the parties.”

In this case there is no corroborating evidence which would establish anything spelling out the relationship of the parties.

Tire plaintiffs make particular reference to Hurst v. Papierz, (1970), 262 N.E.2d 773, to support their contention that there was a joint adventure created. In that case there was an agreement in existence, and it was essentially admitted that there was an alleged contract to form a joint venture. The facts in that case are not similar to the facts in this case, and there was undisputed extensive evidence in that case to support a joint venture.

In Perry v. Wyeth (1962), 25 Ill.2d 245, the court at page 253 stated the law concerning constructive trusts as follows: “A constructive trust is one raised by operation of law as distinguished from a trust created by express agreement between the settlor and the trustee. It is imposed by a court of equity to prevent a person from holding for his own benefit an advantage which he has gained by reason of a fiduciary relationship, or by a fraud. Such a trust arises only when fraud is proven, or when advantage is taken of a fiduciary relationship by the dominant party. The proof of such fiduciary relationship must be clear and convincing, strong, unequivocal, and unmistaking as to lead to but one conclusion.”

In several cases cited there was a written contract, but such did not exist here, and we previously decided that no contract whatsoever was established. In order to have a joint venture, there must be an agreement of some sort, and none existed here. There was no fraud alleged in the complaint, and certainly there was no clear and convincing proof of a fiduciary relationship. In the absence of a fiduciary relationship, the constructive trust cannot be created.

Obviously, the plaintiffs rendered services and their time, but there was no proof offered to establish the reasonable value of their time or services, and consequently cannot be considered by this court.

Judgment reversed.

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


author: Mr. JUSTICE TRAPP

text:
    Marva K. Clark, Plaintiff-Appellant, v. Harry C. Clark, Defendant-Appellee.
    (No. 11305;
    Fourth District
    August 27, 1971.

      Trone & Trone, Rushville, for appellant.
    Robert F. Scott, of Scott, Tisckos, Gray, Lober & Smith, of Springfield, for appellee.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

By its order modifying a decree of divorce, the trial court changed custody of a four-and-one-half-year-old boy from the mother to the father. She appeals.

The original decree of July 29, 1966, approved an agreement of the parties that the male child, Duane Alan Clark, born July 31, 1965, should be under the custody of the mother, Marva K. Clark, subject to visitation rights of the father, Harry C. Clark, to have the child on the first and third week ends of each month from 7:30 P.M., Friday until 7:30 P.M., Sunday, and to have the child for one week in the summer after giving reasonable notice, and to have the child on alternate named holidays, to-wit: Independence Day, Labor Day, Thanksgiving Day, Christmas, New Year’s and Easter.

These proceedings were initiated in December, 1969, during a period when the husband was enjoying his scheduled visitations by obtaining an injunction without notice and without bond restraining the mother from obtaining the custody of the child upon the scheduled conclusion of such visitation. The petition for modification alleged that the wife interfered with the father’s visitation on many scheduled week ends and on holidays; that the child was found to be sick and in need of medical attention; that petitioner was informed and believed that the mother had struck and beaten the child causing bruises and cuts on the back, legs and arms, of which the child has complained; that the petitioner was informed and believed that tire mother permits the child to drink beer and that she has taken the child out of the State without the court’s permission and without having executed a bond. Upon the latter point, so far as we can find from the record the child was once taken to a football game in St. Louis.

Since the divorce in this case the husband was re-married from April, 1967 to January, 1969, and he was thereafter married to his present wife in July, 1969. The latter had four children of her own in ages ranging from four to twelve. Although it appears that she was present, she did not testify in these proceedings, and the record does not show that she has expressed a desire to raise this child.

In September, 1967, the mother married a member of the State Police. Many persons of this community in which she resides testified to the present maintenance of a neat and comfortable home and described the care with which the child was kept. A daughter was born to this marriage in 1968. This step-father testified here to good relations with the boy and said, “I think a lot of him, and I would like to have him as mine in my house.”

The trial court’s findings in the order of modification include findings that material changes in circumstances had occurred; the mother has abused and mistreated the boy; the mother had inflicted excessive punishment in the discipline of the child and has neglected to supervise and care for the child, and that the best interests of the child’s health and welfare require that he be taken from the mother; that the husband is a fit and proper person to have care and custody and that the mother is not a fit and proper person to continue in custody.

We have examined the record with care. The essence of the father’s case is the testimony of the paternal grandparents who, it appears, kept a “record”. The paternal grandfather refreshed his recollection to testify from a memorandum. Examination disclosed that he copied dates from his wife’s calendar and that such memorandum omitted several periods of a week when the child had had no scheduled visits with his father.

Upon the issue of interference with the father’s visitation, the remedy generally is not a matter of change of custody, but of contempt proceedings. The husband testified that the wife interfered with visitation on five or six occasions. The paternal grandparents testified to many occasions when the child did not make a scheduled visit, but there is, however, no equivalent testimony that the husband had sought such visitations. While not too specific, the record suggests that he was not regular in his appointed visits, and that it was the grandparents who travelled to get and return the child from January to August, 1969. The testimony in behalf of the petitioner is that from July, 1968, to this injunction, the visits were generally as scheduled and that upon at least two occasions the child stayed for periods of a week not scheduled for such visits. It is apparent that the provision for custody on the alternate holidays is necessarily unsatisfactory where the parents are not upon good terms. The holiday which was missed by the husband would inevitably produce confusion and conflict concerning the future schedule. This record shows no proceeding for direction of the court upon the issue of interference with visitation or clarification of the schedule prior to the issuance of this injunction.

The testimony concerning the sickness of the child is that in January, 1969, the child was taken to the grandparents with a fever and sore throat. The apparent medical conclusion is that the child had bad tonsils. Treatment in the home was sufficient for this illness. Upon some prior occasions visits were postponed because the very young child had a cold or was thought not fit to travel for some two or three hours. On at least some of those occasions, the child was staying with the maternal grandmother while the mother was working. All witnesses agreed that the former took very good care of the child. There is very little in the record concerning an illness during the last year and one-half prior to this proceeding.

Testimony concerning the mistreatment of the child by the mother includes two occasions where bruises were seen upon his back. As to one of such occasions, the boy said to his father that he had fallen. The petitioner argues inferences from the boy’s plain statement. As to the occasion in July, 1968, the mother testified that the boy was pushed into or against the table by a playmate causing bruises on his back. Her testimony involving scratches with scabs on the legs are traced to a cat. Infant injuries in these categories are matters of almost universal observation. The paternal grandparents testified to seeing four welts upon the leg. The explanation by the boy was that he had been poking the pet rabbit with a stick and that his mother had switched him with a stick here shown to be about two feet long and a fourth inch in diameter which had been part of a toy. His mother agreed that she had switched him when the boy was destructive or made assaults upon the family pets. She also testified that she had used the belt of the four year old to spank him, and that she had placed a bandaid across his mouth when he used improper language. The record discloses an effort to correct the more trying problems of childish waywardness. In Mikrut v. Mikrut, 113 Ill.App.2d 446, 251 N.E.2d 84, the court held that it was error to alter custody upon a small child’s accounts of maternal beatings.

After obtaining this injunction and filing this petition and a partial hearing thereon, his attorney arranged for the father and the child to be interviewed by a psychiatrist. The latter was permitted to testify over extended objection that he had interviewed the boy for ten or fifteen minutes and the father for some forty-five minutes. He testified, “My impression, first of aH, this boy’s mother must be a very brutal hysterical impulse ridden sadistic individual”. We note, however, that his written report is in the language: “First of all, this boy’s mother sounds like she must be a very brutal Hysterical Impulse Ridden Sadistic Individual.” (Emphasis supplied.)

It was error to overrule the objection to such purported expert testimony which could only come from hearsay statements of a party to the proceedings. The value of such testimony is demonstrated by the psychiatrist’s statement that the four-and-one-half-year-old boy, who had not seen his mother except for ten minutes during the previous six weeks, walked into the office of the psychiatrist, a stranger, announcing that he hated his mother.

The court erred in admitting over objection certain testimony of the husband’s mother purporting to show that the mother had married the father because of a pregnancy. It was asserted that such would be connected up with subsequent conduct to show the mother’s unfitness to have custody. This was not done. Here, the original custody was conferred upon the mother by the agreement of the parties and approved in the divorce decree. In Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300, the court said that misconduct prior to the divorce was not admissible as evidence of a change of condition supporting a change of custody. (Jayroe v. Jayroe, 58 Ill.App.2d 79, 206 N.E.2d 266.) By reason of the findings of the trial court, it can only be concluded that he considered such erroneous testimony in his finding that the mother was unfit. While it is customary to give weight to the findings of the trial court, nevertheless, in the matter of custody the conclusion is subject to review upon the evidence. Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300; Mikrut v. Mikrut, 113 Ill.App. 446, 251 N.E.2d 84.

We have examined the cases cited by the father in the support of the change of custody. People ex rel. Yarmulnick v. Hoff, 323 Ill.App. 535, 56 N.E.2d 324, concerned habeas corpus by the father to obtain his chfid from a maternal aunt. In Osborn v. Hufsey, 44 Ill.App.2d 157, 194 N.E.2d 556 and Kline v. Kline, 57 Ill.App.2d 244, 205 N.E.2d 775, the custody was changed where the mother remarried and the respective step-fathers were shown to be of poor character and unable to maintain an adequate home. No such issues are in this record.

The burden of proof is on the father to show a change of conditions by competent evidence. In Akin v. Akin, 109 Ill.App.2d 150, 248 N.E.2d 829, it is said that the evidence supporting such change must be compelling to show that the mother is unfit, and that there must be positive evidence that the best interests of the child require that the custody be taken from- the mother. (Mikrut v. Mikrut, 113 Ill.App. 446, 251 N.E.2d 84.) The effect of the court’s order is to place the boy of very tender years under the care of a step-mother who has expressed no interest in him.

Upon this record the order of the court is contrary to the manifest weight of the evidence. The order is reversed and the cause is remanded with directions to proceed in accordance with the views expressed herein.

Reversed and remanded.

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


text:
    Eunice Eileen Farnbach, Plaintiff-Appellee, v. William Harold Farnbach, Defendant-Appellant.
    (No. 11332;
    Fourth District
    August 27, 1971.

      Hoagland, Maucker, Bernard & Almeter, of Alton, (James K. Almeter, of counsel,) for appellant.
    Schimmel & Schimmel, of Pittsfield, (Albert W. Schimmel, of counsel,) for appellee.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals from a decree of the circuit court granting a divorce to plaintiff, on the ground of extreme and repeated mental cruelty.

Plaintiff and defendant were married April 3, 1954. They apparently lived together without unusual incident until they adopted a daughter, who was born January 24, 1964. The complaint, filed April 24, 1969, alleges:

“That subsequent to their marriage, to wit, approximately two years ago, the defendant commenced a course of cruel and inhuman mental treatment towards the plaintiff in that he refused to cohabit with the plaintiff and that he refused to discipline the adopted child of the parties hereto, and that he has insisted on the adopted child hereto occupying the same bedroom with the plaintiff, all of which have made life with the defendant intolerable.”

The evidence is extremely vague and deficient in detail as to dates. For example, it appears that the defendant husband travelled in his employment, and on occasion slept during the day when he was home. In response to a question how many hours a week the husband was home, plaintiff answered, “I haven’t any idea. Don’t care neither”. It is not clear when the trouble started with respect to disciplining the child. In response to a question whether plaintiff had complete control of the child she answered: “Yes, up to the time he was home last November and all this trouble started”, and this testimony followed:

Q. He was home, why?
A. Not letting me correct her.
Q. Is that when it started, last November?
A. No it started before that.
Q. You actually had the discipline of the child, didn’t you?
A. Yes, until he was home last November.
He was home, why?
A. Because he had to have an operation on his eyes.
Q. He was home because he was ill, wasn’t he?
A. He wasn’t ill.
Q. He had serious trouble with his eyes, didn’t he?
A. It’s not serious, he had cataracts on them.”

Plaintiff testified that the child thought she could get away with murder when the husband was home. The single incident in which the defendant is accused of positively interfering with the child’s discipline was an occasion, after plaintiff filed for divorce, in which the six year old child had been absent for an hour and plaintiff spanked the child five or six times with a hairbrush. Her testimony was: “I give her five or six licks with a hair brush and he tells me that’s enough, when the child hasn’t even made a whimper yet.” Plaintiff then became angry with the defendant for telling her “that’s enough”.

While it does not appear how many times the incident happened, plaintiff complains that defendant permitted the child to sleep with them. She stated that she broke the child of the habit four or five times and he permitted it again.

Plaintiff left the marriage bed because it wasn’t any fun fighting for her half. There is no testimony or evidence that defendant ever refused intercourse or asked plaintiff to leave tire bed. Plaintiff says she could not have sexual relations when defendant was home in the daytime because someone had to take care of the child.

While it is clear that some estrangement took place after the child was brought into the home, the evidence falls far short of proof of extreme and repeated mental cruelty.

There is no evidence that the child is, in fact, undisciplined. There is no evidence of interference with discipline except an unstated number of occasions of permitting the child to sleep in the married couple’s bed.

We agree with plaintiff’s counsel that the decree of the trial court should not be disturbed unless it is against the manifest weight of the evidence. (Hayes v. Hayes, 117 Ill.App.2d 211, 254 N.E.2d 288.) However, it is necessary that there be positive evidence in the record supporting the alleged statutory grounds for divorce.

There is no evidence of any effect of defendant’s alleged conduct upon the plaintiff’s health or nerves. There is evidence that she became extremely angry on one occasion, after the divorce was filed, on being told her discipline was too severe.

There is no evidence that any of defendant’s alleged misconduct, which is largely negative conduct, was unprovoked. The issue in reference to discipline was raised by plaintiff, who, except for a few months when the husband was recuperating at home from an operation, had complete control of the child.

Defendant contends that there is neither any allegation nor proof of lack of provocation for defendant’s conduct. We think this is true. (Akin v. Akin, 125 Ill.App.2d 159, 260 N.E.2d 481.) Additionally, as stated in Stanard v, Stanard, 108 Ill.App.2d 240, 247 N.E.2d 438 at 442: “There are no allegations in the complaint and there is no other evidence in the record which suggests that the conduct of the defendant was such as to cause plaintiff’s life, person or health to be endangered. We do not conclude from the evidence that the unprovoked conduct of the defendant was sufficient to render her life miserable and unendurable, and to cause her intense embarrassment, humiliation and anguish.”

This was plaintiff’s fifth marriage, and, in the absence of a positive refusal of intercourse, which is not even asserted, the lack of sexual relations which occurred some time, unstated, after ten years of cohabitation, would appear to have resulted as much from plaintiff’s conduct as defendant’s. In the event that evidence had been produced of a refusal of normal intercourse an inquiry would have been in order as to whether there was some excuse such as ill health. This record is devoid of any confrontation in this respect, and certainly fails to establish mental cruelty.

It has been repeatedly held that it is the duty of thet State to guard the marital relation and that it be not lightly terminated. In re Fisher, 15 Ill.2d 139, 153 N.E.2d 832; Johnson v. Johnson, 381 Ill. 362, 370, 45 N.E.2d 625; The People ex rel. Doty v. Connell, 9 Ill.2d 390, 394, 137 N.E.2d 849; and Kinsley v. Kinsley, 388 Ill. 194, 197; 57 N.E.2d 449.

Accordingly, as stated in Stanard, even though the trial court might conclude that the marriage was “obviously dead”, it would not be authorized to excuse plaintiff from proving her case by competent evidence using the statutory grounds as a basis.

Plaintiff has failed to prove any intentional coruse of conduct engaged in by defendant which was calculated to, or did in fact, result in injuring her physical or emotional health. Mere disagreement of the parties or disillusionment with the marriage is insufficient.

The judgment of the trial court should be reversed.

Judgment reversed.

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


author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Joseph Anthony Augitto, Defendant-Appellee.
    (No. 11360:
    Fourth District
    August 27, 1971.
    Lawrence E. Johnson, State’s Attorney, of Urbana, (James R. Burgess, Jr., Assistant State’s Attorney, of counsel) for the People.
    Robert Isham Auler, of Champaign, for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant was charged with the illegal sale of a dangerous drug in violation of Chapter 111½, Section 802(b), Illinois Revised Statutes, 1967.

The case was tried before a jury. At the close of the Peoples’ case a motion for directed verdict was denied, and at the close of all the evidence a motion for directed verdict was denied. The defense of entrapment was raised; the issues were submitted to the jmy which returned a verdict of guilty.

Defendant filed a motion for judgment notwithstanding the verdict, or in the alternative for new trial. The magistrate took the motion under advisement and subsequently entered a judgment order finding, as a matter of law, that defendant was entrapped, and entered judgment notwithstanding the verdict in favor of the defendant.

The People appeal from the judgment, and we took defendant’s motion to dismiss the appeal with the case.

Supreme Court Rule 604(a) delineates and circumscribes the right of the State to appeal in criminal cases, and in part provides that in such cases the State may appeal from an order or judgment which results in dismissing a charge for any of the grounds enumerated in section 114—1 of the Criminal Code of Procedure of 1963.

The People urge that this appeal will lie and in support of that contention cite People v. Love, 39 Ill.2d 436, 235 N.E.2d 819; and People v. Blanchett, 33 Ill.2d 527, 212 N.E.2d 97.

In Blanchett, supra, the defendant had filed a motion in arrest of judgment on the ground that the information, upon which he had been tried, did not state an offense. The motion was denied by the trial court and on appeal this court reversed on the ground that the motion in arrest of judgment should have been allowed. The Supreme Court granted leave to appeal and held that the State had the right to appeal from the judgment of the appellate court because “The real effect of the appellate court decision is that of an order or judgment ‘arresting judgment because of a defective information ”, and that paragraph 4 of Supreme Court Rule 27 specifically provided that the State could appeal from such an order or judgment. Ill. Rev. Stat. 1964, ch. 110, par. 101.27(4).

In Love, supra, the trial court had dismissed a complaint which charged the defendant with leaving the scene of an accident in violation of section 36 of the Uniform Act Regulating Traffic on Highways. (Ill. Rev. Stat. 1967, ch. 95½, par. 133.) The basis of the ruling was that defendant had not been arrested until 148 days after the issuance of the warrant, and that this was a violation of his constitutional right to speedy trial. The Supreme Court held that the State had a right to appeal from a judgment, “* * * the substantive effect of which resulted in the dismissal of the indictment” against the defendant.

The holdings in Blanchett and Love, supra, are not persuasive. The judgment here is not one which arrests judgment because of a defective charge nor is it one which has the substantive effect of dismissing an indictment.

The judgment of the court is plainly a judgment of acquittal. It has precisely the same effect as a verdict directed in favor of the defendant either at the close of the Peoples’ evidence or at the close of all the evidence.

We also note that section 7 — 12 of the Criminal Code provides: “Entrapment. A person is not guilty (emphasis supplied) of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person * * Ill. Rev. Stat. 1969, ch. 38, par. 7—12.

Hence, the finding of the trial court here that the defense of entrapment was established as a matter of law, is in substance and effect, a finding that the defendant is not guilty. No right to appeal from such a judgment is found either in Rule 604(a) or in the provisions of the Criminal Code therein incorporated, and indeed is expressly barred by the provision of section 7 of article VI of the Constitution of 1870 which provides: “* * * after a trial on the merits in a criminal case, no

appeal shall he from a judgment of acquittal.”

Accordingly the motion is allowed and the appeal dismissed.

Appeal dismissed.

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


author: Mr. JUSTICE MILLS

text:
    Pamela McWethy, et al., Plaintiffs-Appellants, v. Donald Lee, Adm., Defendant-Appellee.
    (No. 11365;
    Fourth District
    August 27, 1971.

      Summers, Watson & Kimpel, of Champaign, for appellants.
    Phillips, Phebus & Tummelson, of Urbana, (Hurshal C. Tummelson, of counsel,) for appellee.
   Mr. JUSTICE MILLS

delivered the opinion of the court:

This is that rare case. It is that extremely unusual situation involving willful and wanton misconduct that no longer remains a question of fact for the jury, but one that is established as a matter of law. In this appeal we must consequently reverse the jury verdict for defendant, grant the plaintiff a judgment n.o.v., and remand the cause for a new trial as to damages only.

The rather detailed factual background unfolds thusly:

We begin with six teenagers in a car — three boys, three girls. One boy 18, two boys 17, two girls 15 and the other girl 13. It was on a Friday evening in November that tragedy struck these young people at the edge of the City of Champaign. Shortly after the dinner hour the three boys came by in Tom Stigall’s car and invited the three girls to go for a ride. During the course of the evening they rode around, cracldng jokes and “goofing off”, with the boys taking turns driving. At somewhere around 9:30 that evening they pulled into a drive-in restaurant, with defendant’s decedent, Rick Lee, age 17, at the wheel. The plaintiff, Pamela McWethy, age 13, was riding in the right rear seat. The car left the drive-in and headed west on Bradley Avenue, going about 35 miles per hour, when an unidentified “Mustang” pulled alongside. Apparently both cars engaged in “a slight drag race” that lasted for about one and a half blocks to a stop sign at the intersection of Bradley and McKinley, where Rick Lee properly stopped the Stigall car. The “Mustang” turned right onto McKinley, when a police car came around the Stigall car and also turned right behind the “Mustang”. As the police officer was getting out of the squad car, Lee started up from the stop sign at a normal rate of speed; but immediately thereafter he accelerated to a high rate of speed, went right past plaintiff’s house on Bradley, was being pursued by a police car driving 85 to 90 miles per hour, culminating in a collision about a mile down the road at the intersection of Bradley and Mattis. During this high-speed, mile-long chase, all of the other teenagers were yelling to Rick to slow down or stop, and Tom Stigall, the car’s owner, sitting in the left rear seat, leaned over and unsuccessfully tried to reach the ignition switch. The car ran the stop sign at Mattis, struck a southbound car broadside with enough violence that both vehicles became airborne. The tragedy: Rick Lee died as a result, and the other five teenagers were severely injured.

Pertinent only to this case, the undisputed evidence was that plaintiff, Pamela McWethy, suffered multiple lacerations to the head and face, a fractured nose, fractured jaws, a cut tongue, back and leg injuries; operations on her jaw and nose, and plastic surgery, would be required; she was left with permanent facial scars and a numb left foot.

In his opening statement, defendant’s counsel stated as follows:

Mr. TUMMELSON: “* * * Now, they had beer in the car. Pam McWethy drank the beer. She was fourteen. I believe her testimony will be that she drank the beer. These young people were out riding around. I think the evidence will be in the country north of Champaign. They had done this on other occasions. This was not their first experience in doing this. Tom Stigall was driving the car, it may be Stigall, you will hear it from the evidence. He was driving the car in the beginning. I forgot which girl was his date. He became so intoxicated that he could no longer drive according to what I believe will be the testimony of Debra, I mean, of Pamela McWethy. He was so intoxicated he could not drive. One of the other boys then, as Mr. Summers has suggested, it was Tom Holden drove for a short while, later Ricky Lee was driving. I believe the testimony of this plaintiff will be that Ricky Lee was not intoxicated, that he had not had that much beer * *

Defendant offered no evidence whatever regarding the occurrence and relied solely upon cross-examination of plaintiff’s witnesses to make his case. He was able, by favorable ruling of the trial court, to inject into the record and the evidence before the jury the “presence of beer”— the record reflects that upon over 50 occasions defendant’s counsel referred to the “presence of beer” in front of the jury. But at no time throughout the course of this trial was he able, by either direct evidence or cross-examination, to show that intoxication was present or resulted from the presence of such beer. Indeed, as he informed the presiding judge, this was not his intention. His theory was that all of these young people were throwing beer out of the car after observing the police car, and that this was a surrounding circumstance and fact that the jury can consider on the question of whether or not the plaintiff was free from willful and wanton misconduct. Plaintiffs counsel objected strenuously and argued that the presence of beer could only be admitted if it demonstrated, or resulted in, intoxication of either plaintiff or defendant, and in the absence of such showing its admission was highly prejudicial. The trial court, however, agreed with defendant’s counsel, stating “I think it is a circumstance that can be considered.” Plaintiff’s counsel persistently and consistently objected to all cross-examination of each witness as to the presence of beer, and adequately preserved the question for this court.

The jury returned a verdict in favor of defendant, and plaintiff subsequently presented a lengthy, 21-page, post-trial motion, including therein a memorandum of authorities. After hearing the motion, the court merely entered an order denying same, without enumerating Iris reasons. We note, parenthetically, that reviewing courts of this state have regularly indicated that some record of a trial court’s reasons for its disposative action is of vast assistance to an appellant tribunal. We are sorry that no such record was made on the post-trial motion here, since the trial judge was confronted with the very hub questions around which this appeal turns. His reasons would have been most helpful to us, and because of the importance that we place upon a trial court’s reasoning, we again flag this appellate observation. McElroy v. Patton, -Ill.App.2d-, 265 N.E.2d 397, 398.

Thus, defense counsel was permitted upon cross-examination to inquire of each one of the surviving five teenagers as to the “presence of beer.” We would point out here that at no time on direct examination had any of these witnesses been questioned as to beer, either the presence or consumption of it, and at no time did any of the five witnesses deny the presence of beer in tire automobile. Consequently, under the guise of, and for the ostensible purpose of, impeachment, defense counsel was permitted to continue his excursion into this quite irrelevant and immaterial, yet highly prejudicial, area. As to the first point, we consider it unnecessary to cite authority for the catholic rule that questions on cross-examination are to be limited to those matters which arose upon direct examination. And as to the second point, in the law of evidence “impeachment” is “To call in question the veracity of a witness, by means of evidence adduced for that purpose, or the adducing of proof that a witness is unworthy of belief.” (Black’s Law Dictionary, 1968, Revised 4th Edition.) Patently, in this instance any or all of these witnesses would have been required to deny the “presence of beer” in order for defendant’s counsel to have been properly permitted to attempt impeachment. On both scores the cross-examination was inappropriate: no direct, no denial. Consequently, the occasion for attempted impeachment was non-existent and the cross-examination in this area was highly improper.

Now, from defense counsel’s opening statement here quoted, it is readily apparent that he interjected at the very nativity of the trial references to “intoxication”. We rather suspect that he was fully aware he would be unable to produce sufficient evidence of intoxication to justify evidence of the “presence of beer”. It requires more, much more, than either the mere presence of, or the drinking of, alcoholic beverages to interject the issue of intoxication. As this court said in Shore v. Turman, 63 Ill.App.2d 315, 210 N.E.2d 232, 235-236: “Drinking, standing alone, cannot be equated with intoxication nor can the use of alcoholic liquor, standing alone, characterize a person as intoxicated.” The mere presence or consumption of alcohol is insufficient; there must be proof of facts which afford indicia of intoxication, as our courts have consistently held. Kitten v. Stodden, 76 Ill.App.2d 177, 221 N.E.2d 511, 514.

Having thus planted the poisoned seed of “intoxication” in the minds of the jurors in opening statement, defendant’s counsel then proceeded with his 50-plus questions involving the "presence of beer”. After his repetitive cross-examination on a subject that should have been forbidden, he reHed completely upon his tainted cross-examination and offered no evidence whatsoever in his case in chief regarding either intoxication or beer. And in his closing arguments, he nailed his point home by referring to “beer” exactly twenty-two times! (We counted them.)

In short: defense counsel’s opening statement injected the highly prejudicial issue of intoxication that was not in the case at all; his continuing cross-examination of witnesses as to the “presence of beer” was both improper cross and improper impeachment; his closing argument aggravated the error. His trial strategy worked, for he was able to sow, cultivate, reap and harvest an undeserved verdict by improper procedure and inadmissible substance. His modus operandi was one of innuendo, based solely on irrelevant and inadmissible statements. The inadmissible substantive matters and the totaUy improper procedure were so highly prejudicial as to caH for reversal.

The other hub on the axle of this case revolves around the standard of care required of Ricky Lee (defendant) and Pam McWethy (plaintiff). Rich was a 17-year-old licensed driver of the automobile — a minor. But our law is clear that when it comes to the operation of a motor vehicle, a minor is required to exercise the same standard of care as an adult. (Betzold v. Erickson, 35 Ill.App.2d 203, 182 N.E.2d 342.) But as to Pam McWethy, the 13-year-old, 8th grade plaintiff in this cause, the standard is different: “* * * a child under the age of 14 years is presumed free of contributory negligence * * *” (Dickeson v. Baltimore & Ohio Chicago Terminal R.R. Co., 73 Ill.App.2d 5, 220 N.E.2d 43, 49.) And we can conceive of no valid argument which would deny to a child under 14-years-of-age a presumption of freedom from willful and wanton misconduct, if our law presumes her free from the lesser requirements of contributory negligence. To hold otherwise would be to do violence to logic and common sense. Yet that is exactly what defense counsel maintained in his closing argument to the jury, where he said: “* * * Pamela McWethy, even though she was only 12 or 13 has a like duty to protect herself, she has the same duty to be free from willful and wanton misconduct * * * Pam McWethy was just as wrong. Ladies and gentlemen, don’t be fooled by her age. You saw these girls testify, you heard what they’re capable of doing when they testify on cross examination. Don’t be fooled because they were 12 or 13, they were just as mature as the others and they’re chargeable with just the same obligation that they want to put on Richard Lee * *

Such argument was contrary to the law of this jurisdiction.

The jury was properly instructed as to the burdens of proof imposed upon plaintiff: that she be free from contributory willful and wanton misconduct; that Rich Lee improperly acted or failed to act in a willful and wanton manner; that Pam McWethy was injured; and that her injuries were proximately caused by Rick’s willful and wanton misconduct. The pleadings alleged that Rick’s acts were driving at a high and dangerous speed, disregarding stop signs, failure to yield right-of-way and operation of the car with reckless disregard for the safety of the plaintiff. We have carefully examined the entire record before us, and after casting aside certain satellite issues that fall in the category of minutia, we can come to but one conclusion: the proper and admissible evidence in this case clearly dictates that plaintiff was entitled to a verdict. The undisputed evidence reflects that Rick Lee was driving in excess of 85-90 miles per hour, ran the stop sign at the intersection of Bradley and Mattis, failed to yield the right of way and operated the vehicle with a “reckless disregard” for safety. The 13-year-old plaintiff, along with the others, was yelling at Rick to slow down or stop, while Tom Stigall was trying to reach over and turn off tire ignition. What more could a 13-year-old, non-licensed, rear-seat passenger do under these circumstances? Anything more? We know not what it could be. Not only was she presumed to be free from contributory willful and wanton misconduct, but the evidence affirmatively demonstrated that she was free from such action.

Upon the record before us, we hold that plaintiff alleged and proved all of the necessary components of a lawsuit based upon willful and wanton misconduct. And in our opinion, “a * * no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern RR. Co., 37 Ill.2d 494, 229 N.E.2d 504, 513-514.

Ergo, judgment for defendant is hereby reversed, judgment notwithstanding the verdict is hereby entered in favor of plaintiff, and this cause is remanded to the circuit comt of Champaign County for a new trial as to damages only.

Reversed and remanded.

TRAPP, P. J., and CRAVEN, J., concur.


author: Mr. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry G. Curry, Defendant-Appellant.
    (No. 11396:
    (No. 11434;
    Fourth District
    August 27, 1971.

      Morton Zwick, Director of Defender Project, of Chicago, (Matthew J. Moran, of counsel,) for appellant.
    Everett L. Laury, State’s Attorney of Danville, for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

We review two proceedings in this consolidated appeal. In January 1968, the defendant was indicted for burglary of a jewelry store and petty theft. He was represented by the then appointed public defender of Vermilion County, John Unger, when on March 1968, he entered a plea of guilty. Upon his motion the defendant was admitted to probation for a period of four years.

In January, 1969, a petition for revocation of probation was filed alleging certain violations of the terms and conditions of probation. Thereafter, in June of 1970, an amended petition was filed. This amended petition alleged, in addition to the charges previously filed, that tire defendant committed the offense of burglary of the Cheker Oil Company on August 13, 1969, as charged in a specified indictment. This amended petition further stated that the defendant had entered a plea of guilty to this subsequent charge, the plea having been entered on June 18, 1970.

At a hearing on the petition for revocation on June 25, 1970, the record shows that the then State’s Attorney, the former public defender, John Unger, appeared for the People. There was no appearance for the defendant on that date. The court appointed the public defender, Mr. Litak, to represent the defendant. The record contains a statement by Mr. Unger to the court that he suspected that he represented the defendant in the original proceedings, resulting in the probation, the revocation of which was being sought.

On June 30 at a further hearing, John Unger, as State’s Attorney, appeared for the People and the public defender previously appointed appeared for the defendant. The defendant testified, admitted the burglary of the Cheker Oil Company, described the offense, and further testified as to his activities while on probation. He was cross-examined by the State’s Attorney. Probation was revoked. A hearing in aggravation and mitigation was held and the defendant was sentenced to a term of not less than five nor more than eight years for the original offense. This sentence was made to run concurrently with a sentence of not less than one nor more than two years imposed on his plea of guilty to the charge of burglarizing the Cheker Oil Company. Our case No. 11396 is the appeal from this proceeding revoking probation.

Our case No. 11434 is an appeal from the conviction upon the charge of burglarizing the Cheker Oil Company. In that case the sole issue is the validity of the indictment in view of an error as to the alleged year of the offense. That arises by reason of the following chronology. In April, 1970, an information was filed alleging the burglary of the Cheker Oil Company, the offense allegedly having been committed on the 13th of August, 1969. Thereafter, a grand jury indictment was returned charging the same offense. The date specified in the indictment, however, was August 13, 1970. That indictment was on May 5, 1970. On June 18, 1970, with court appointed counsel and after a full and complete admonition, the defendant entered a plea of guilty to the offense as alleged in the indictment. It is urged upon this appeal that a conviction based upon a plea in June 1970 to an indictment returned in May, 1970, charging an offense alleged to have been committed in August, 1970, is a void conviction and one which will not sustain a revocation of probation.

We agree with the contention of the defendant, supported by ample authority, that a void indictment, even though there is a plea of guilty, will not sustain a conviction. It does not follow, however, that the typographical error as to date here, the error being patent, constitutes a void indictment. In People v. Adams, 109 Ill.App.2d 385, 248 N.E.2d 748, the indictment contained an omission as to the year of the offense, stating only that the offense was committed on or about “29th June”. The court there held that such defect was one of form and did not render the charge fatally deficient. The reasoning there is applicable here. (See also People v. Greenwood, 115 Ill.App.2d 167, 253 N.E.2d 72: and People v. Price, First District No. 54599, - Ill.App.2d -, - N.E.2d-. We hold this indictment to be valid. In the context of the entire record it is clear that the date of the offense was known to the defendant. His plea of guilty and testimony relates to the charged offense and the trial court ascertained from the defendant that there was a factual basis for his plea of guilty. Thus we find no defect that did constitute a void or even a voidable proceeding.

We turn now to the question of the validity of the proceedings for revocation of probation and the issue tendered by reason of the fact that the defendant’s appointed attorney at the time of the plea of guilty to the original charge was subsequently the State’s Attorney and appeared on behalf of the People requesting revocation of probation and sentencing under the original offense. Even though such probation revocation is not based upon a void subsequent conviction, the proceeding must be reversed because of the improper representation.

In People v. Gerold, 265 Ill. 448, 107 N.E. 165, the court discusses the question of the propriety of one who has represented an individual to subsequently engage in the prosecution of the individual for acts arising during the representation and holds such to be reversible error. The reasoning of the court and the philosophy expressed there is applicable here and this procedure was subject to the same infirmity. We must therefore reverse and remand the revocation proceedings.

In March, 1968, when the defendant entered a plea of guilty to the original offense — burglary of the jewelry store — he had conferences with his then attorney and based upon these conferences ultimately pleaded guilty. The record reflects that he affirmatively stated that he had consulted with his attorney relative to the charge and the penalty and such consultation would necessarily involve the attorney in learning from the client matters which could be used to the client’s detriment in the subsequent proceeding to revoke probation.

We deal here not with the limited attorney-client privilege, but with the broader ethical obligation and professional responsibility of a lawyer to guard the confidences and secrets of his client. Such obligation is in no way diminished by the fact that the lawyer served by appointment rather than by having been retained by the client. This duty to guard the confidences and secrets of the client exists without regard to the nature or source of information. We cannot hold on this record that the plea of guilty constituted a waiver for the simple reason that a waiver carries with it a connotation of a knowing and intelligent judgment based upon full disclosure. No disclosure that can be equated with full and complete disclosure appears here. As we see it, counsel in this case was called upon to represent conflicting interests and to undertake or discharge inconsistent duties. It is immaterial whether the conflict aiises from a knowing and intentional action, or whether, as we suspect is the case here, the conflicting representation is undertaken inadvertently and as a result of the press of official duties. The original professional relationship as defense counsel was in clear conflict with the subsequent duties as prosecutor undertaking to obtain a sentence for the same identical conduct,

As the court stated in Gerold, at page 478: “It is the glory of the legal profession that its fidelity to its clients can be depended upon; that a man may safely go to a lawyer and converse with him upon his rights in litigation with absolute assurance that that lawyer’s tongue is tied from ever discussing it. (United States v. Costen, 38 Fed. Rep. 24.) This rule has been so strictly enforced that it has been held that an attorney, on terminating his employment, cannot thereafter act as counsel against his client in the same general matter, even though while acting for his former client he acquired no knowledge which could operate to the client’s disadvantage in the subsequent adverse employment. (Pierce v. Palmer, Ann. Cas. 1912b, (R.I.) 181, and cases cited in note.) If this is the rule in civil cases the law will not be less strict in criminal proceedings, especially as to the duty in this regard resting upon counsel for the State. Such an officer is acting in a quasi-judicial capacity, and he and those associated with him should represent public justice and stand indifferent as between the accused and any private interest. It is as much the duty of prosecuting attorneys to see that a person on trial is not deprived of any of his statutory or legal rights as it is to prosecute him for the crime with which he may be charged. (State v. Osborne, 20 Ann. Cas. (Ore.) 627.) The canons of ethics of the American Bar Association and various State associations in this country are in accord on this subject with the rule just stated. An attorney cannot be permitted to assist in the prosecution of a criminal case if by reason of his professional relations with the accused he has acquired a knowledge of the facts upon which the prosecution is predicated or which are closely interwoven therewith. (Wilson v. State, 16 Ind. 392; Commonwealth v. Gibbs, 4 Gray, 146.) The members of the profession must have the fullest confidence of their clients. If it may be abused the profession will suffer by the loss of the confidence of the people. The good of the profession, as well as the safety of clients, demands the recognition and enforcement of these rules. (State v. Halstead, 73 Iowa, 376.) It is unnecessary that the prosecuting attorney be guilty of an attempt to betray confidence; it is enough if it places him in a position which leaves him open to such charge; and this disqualification may arise by reason of services rendered by him in a civil case as well as in a criminal case. (State v. Rocker, 130 Iowa, 239; 2 Thorton on Attorneys, secs. 693, 700.) The administration of the law should be free from all temptation and suspicion, so far as human agencies are capable of accomplishing that object, and public policy strongly demands that one who has been employed on one side should not be permitted to appear on the other side.”

Our examination of the Code of Professional Responsibility adopted by the organized Bar of this State, lead us to the conclusion that the philosophy expressed and quoted above is fully applicable on an expanding rather than a contracting basis today.

It becomes unnecessary that we consider the contention of the defendant that the sentence imposed upon revocation of probation was excessive, although in this connection it is appropriate to note the absence of a substantial spread between the minimum and the maximum sentence. See People v. Scott, 117 Ill.App.2d 344, 253 N.E.2d 553.

For the reason stated the judgment of the circuit court of Vermilion County in cause No. 11434 is affirmed. The judgment of that court in cause No. 11396 is reversed and that cause is remanded for further proceedings.

No. 11434. — Judgment affirmed.

No. 11396. — Reversed and remanded.

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