author: Mr. JUSTICE McNAMARA

text:
    Master Barbers’ and Beauty Culturists’ Association of Chicago, Inc., et al., Plaintiffs-Appellants, v. Alfred Grajek et al., Defendants-Appellees.
    (No. 55663;
    First District (3rd Division)
    May 3, 1973.
    Robert J. Egan, of Chicago, for appellants.
    Robert J. Gorman, of Chicago, for appellees.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs filed a complaint under the Illinois Anti-Trust Act (Ill. Rev. Stat. 1969, ch. 38, par. 60—1 et seq.), charging defendants with conspiring to fix the price of haircuts and seeking both a temporary and permanent injunction and treble damages. Defendant, Alfred Grajek, was the owner of the Veterans Barber Shop located at 33 East 111th Place in the City of Chicago. The other defendants were barbers in the same shop. Before defendants filed their answer, plaintiffs made a motion for a temporary injunction. The trial court denied plaintiffs’ motion for temporary relief after a hearing. Plaintiffs prosecute this interlocutory appeal from the trial court’s denial of their motion, and contend that the trial court’s order was improper.

The facts, as developed at the hearing, show that Grajek leased 20 chairs in the shop to independent barbers who work their own hours and collect their own fees. The shop had no cashier. In return for the lease arrangement Grajek operated as a central purchasing agent for the purpose of purchasing linens, barber supplies and arranging for advertising.

Grajek and several other defendant barbers testified that the basic price of a haircut at the shop was $1.25 for adults and $1.00 for children. They testified that the adult price was raised from $1.00 to $1.25 about six years previously and that this price increase was the result of individual action by each barber. They also stated that there were additional charges for special services which were determined by the individual barber at the time the services were rendered. At the time of the filing of this suit, the prevailing price for adult haircuts in all other barber shops throughout the area was $3.

Grajek testified that the basic price of $1.25 for haircuts at the Veterans Barber Shop was the advertised price. Plaintiffs introduced several advertisements from local newspapers and handbills confirming Grajeks’ testimony.

Plaintiffs’ complaint sought an injunction to restrain the defendant barbers from publishing, communicating or combining to fix their prices or hours at the shop in question. At tire hearing, plaintiffs’ main contention appeared to be that defendants should be restrained by means of temporary injunction from advertising the price of haircuts at their barber shop on the grounds that such advertising is violative of the Illinois Anti-Trust Act. Plaintiffs contend in this court that tire evidence adduced at the hearing clearly established their right to such a temporary injunction. We do not agree.

Initially, it should be noted that the granting or refusal to grant a temporary injunction rests within the sound discretion of the trial court and, unless there is an abuse of this discretion, a reviewing court will not set aside the determination of the trial court. (Weingart v. Weingart, 23 Ill.App.2d 154, 161 N.E.2d 714.) In order to obtain a temporary injunction the moving party must establish an immediate need for the injunction in order to preserve the status quo and to prevent irreparable injury to its rights, as well as show the probability of ultimate success on the merits of the case. (Schlicksup Drug Co., Inc. v. Schlicksup, 129 Ill.App.2d 181, 262 N.E.2d 713.) Plaintiffs have failed to meet this burden.

Under the facts as presented to the trial court it is apparent that the temporary injunction which plaintiffs were seeking was not necessary to preserve the status quo as it existed between the parties at the time the complaint was filed. In fact, the injunction would have altered the status quo in that it would have prevented defendants from advertising the price of haircuts at the Veterans Barber Shop, an already established practice.

The record has also failed to show that an injunction was necessary to prevent irreparable injury to plaintiffs’ rights. There are no facts in the record to establish that plaintiffs would suffer irreparable harm if they were not granted immediate relief. And, a temporary injunction is an extraordinary remedy which is generally employed only in matters of great urgency. (Hoffman v. City of Evanston, 101 Ill.App.2d 440, 243 N.E.2d 478.) The effect of haircut prices in one shop would appear to be minimal.

Pending the joinder of issues and a final determination of the litigation, the trial court did not abuse its discretion in denying the plaintiffs’ motion for a temporary injunction.

Accordingly, the order of the circuit court of Cook County denying the request for a temporary injunction is affirmed.

DEMPSEY, P. J., and McGLOON, J„ concur.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael J. Alexander, Defendant-Appellant.
    (No. 56267;
    First District (3rd Division)
    May 3, 1973.

      Cecil A. Partee, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane, John C. O’Rourke, Jr., and Mark T. Zubor, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

Defendant was charged with rape, burglary with intent to commit rape and burglary with intent to commit theft. After a jury trial, defendant was found guilty of rape and burglary with intent to commit rape, and was sentenced to concurrent terms of 10 to 15 years. Defendant was found not guilty of the charge of burglary with the intent to commit theft. On appeal defendant contends that the trial court erred in admitting his in-custodial responses as rebuttal evidence; that the court erred in admitting into evidence certain out-of-court statements of the complaining witness; that certain remarks of the prosecutor and actions of the trial judge deprived defendant of a fair trial; that he was not proved guilty beyond a reasonable doubt; and finally, that the sentences imposed were excessive.

At trial the victim testified that on September 16, 1970 defendant committed forcible intercourse with her in her ground floor apartment located in the City of Chicago. Earlier that evening, while a neighbor, Mrs. Patricia Longmire, was visiting, defendant had come to the victim’s apartment looking for Philip O’Bannon, the victim’s boyfriend. Defendant departed after learning that O’Bannon was not there. The victim testified that at this time defendant had a “goofy” look in his eyes, and spoke more slowly than usual. The victim was acquainted with defendant, but at this time knew him only by his first name, “Michael.” Defendant had visited the victim’s apartment several times with O’Bannon, and on several occasions, including the previous evening, had come to the apartment looking for O’Bannon.

After Mrs. Longmire left, the victim and her three-year-old daughter went to bed about 10:30 P.M. They shared the same bed in the one bedroom apartment. About an hour later, the victim was awakened by a loud crash at the front door. She saw defendant standing over her bed. He held a knife against her neck, and threatened to harm her daughter if she resisted. He ripped off her night clothes, and had intercourse with her. Defendant then asked for her money. When she did not reply, he asked if Philip had the money, and she stated that he did. Defendant threatened to harm her if she told anyone what had happened, and left the apartment.

After defendant left, the victim wrapped her daughter in a sheet, and ran across the street to Mrs. Longmire’s apartment. She told the latter that Michael stated that he had a knife and that he had raped her. The police were summoned, and the victim was taken to the Roseland Hospital.

Although the lights were out during the commission of the crime, the victim testified that she could see defendant plainly. The windows in the apartment were long and had thin shades. The light from the street outside and from the I.C. station fully illuminated the room. During the commission of the crime, the victim could see the defendant’s facial characteristics plainly. He had a “natural” haircut, and his hair was uncombed and unkempt. Defendant was wearing the same dark sweatshirt, dark pants and gym shoes that he had worn earlier in the evening. The victim further testified that Philip O’Bannon sometimes stayed at her apartment all night, and that he had clothes at the apartment.

Patricia Longmire testified that she noted that the defendant had come to the victim’s apartment about 9:30 P.M. on the evening in question looking for Philip O’Bannon. He was wearing dark clothes and gym shoes. At about 11:45 P.M., the victim, visibly upset and carrying her daughter, came to the Longmire apartment. She immediately stated to Mrs. Longmire, “Michael kicked open the door and raped me.” In response to a question, the victim also told Mrs. Longmire that the defendant said he had a knife and threatened to harm her.

Philip O’Bannon testified that he was acquainted with the defendant for several months prior to the incident in question. Defendant had visited the victim’s apartment with O’Bannon on several occasions. O’Bannon saw the victim a few hours after the incident and noticed scratches on her neck. Mrs. Longmire also noticed these scratches, but Officer John Efantis of the Chicago Police Department, the first officer at the scene, did not. O’Bannon, Mrs. Longmire and Officer Efantis all testified that even with the lights extinguished and the shades drawn in the victim’s apartment, enough light came in from sources outside the apartment to see and observe plainly.

Sergeant Richard O’Connell of the Chicago Police Department, final witness for the State, testified that on September 19, 1970, he observed the door to the victim’s apartment to be cracked and ajar. When Sergeant O’Connell started to relate a conversation he had with defendant at the police station on September 21, 1970 in which defendant had made certain exculpatory statements, defense counsel objected. At a conference outside the presence of the jury, it developed that, despite defendant’s pre-trial motion for the production of all statements of the defendant, both written and oral, in the State’s possession, the statements made to Sergeant O’Connell had not been furnished to the defense. At the conference, O’Connell stated that he was testifying from personal notes made by him at the time of the conversations but not included in the official police file. The prosecutor represented to the court that he was aware of the conversations prior to putting O’Connell on the stand, but did not know of them prior to trial. The trial court sustained defendant’s objection, and ruled that, because of the surprise to the defense, he would not permit Sergeant O’Connell to testify in tire case in chief as to the conversations had with defendant. The court ordered the prosecution to furnish O’Connell’s notes to the defense, and stated that, if he determined that the State had not deliberately concealed the statements, he would permit rebuttal testimony concerning the statements. The trial court instructed the jury to disregard any testimony which O’Connell had already given concerning statements made by the defendant.

The defense offered testimony of an alibi. Isaac Thompson, a friend of defendant’s, testified that on the evening in question he was with defendant. Defendant came to Thompson’s apartment at 8:15 P.M., and at 8:30 P.M. they drove to the area of 47th and Indiana. They remained in that vicinity until about 10:00 P.M., when defendant returned Thompson to his home. They parted company about 10:30 P.M.

Sandra Alexander, defendant’s fourteen-year-old sister, testified that on the evening in question, she observed tire defendant return home about 10:30 P.M. Defendant left again, but returned in 15 minutes. He admonished Sandra for being up so late. Defendant then listened to records, and she noticed that the light went out in his room about 11:40 P.M.

Defendant testified that he was with Isaac Thompson from about 8:30 P.M. until 10:30 P.M. in the vicinity of 47th and Indiana. Defendant arrived home about 10:40 P.M., and left shortly thereafter to get something to eat. He returned within 15 minutes, and spoke to his mother and sister. He did not leave his apartment again that evening. He admitted that these were not the same details he had given the police when originally questioned. Defendant, Isaac Thompson and Sandra Alexander all testified that on the evening in question defendant was wearing khaki pants, a light green jacket and “steel mill” boots, not gym shoes. Defendant stated that he was acquainted with the victim, but had not raped her and had not been at her apartment on the evening in question.

It was stipulated that the vaginal smear taken of tire victim at the Roseland Hospital was negative for sperm. It was also stipulated that defendant was 22 years old.

The trial judge found that the prosecution had not wilfully concealed Sergeant O’Connell’s conversations with defendant. The court also held that, since the element of surprise had been removed, the testimony of Sergeant O’Connell as to the conversations would be permitted on rebuttal. Sergeant O’Connell testified in rebuttal that defendant told him that he had returned home at about 11:15 P.M. after an evening with Isaac Thompson. He watched television until he retired at 1:00 A.M. Defendant also told Sergeant O’Connell that he had not seen or talked to anyone during this time.

Defendant’s first contention is that the introduction into evidence of his exculpatory in-custodial statements to Sergeant O’Connell constituted reversible error. He argues that the State’s failure to produce such statements after his pre-trial motion for the discovery of such statements, should have acted as a bar to their use by the State during trial. We do not agree. The controlling case on this issue is People v. Milligan, 107 Ill.App.2d 58, 245 N.E.2d 551. In that case, the State, after responding negatively to a pre-trial motion for the production of any statements, attempted at trial to introduce into evidence certain exculpatory statements made by the defendant. After the prosecutor represented to the trial court that he was not aware of the statements until trial had begun, the trial court permitted the prosecution to introduce the statements of the defendant during its case in chief. This court, in affirming the conviction, stated at p. 64:

“Remarks made by defendant of an exculpatory nature, upon discovery during trial, are not rendered inadmissible because not disclosed in answer to a pretrial discovery motion.”

In the instant case, the trial court restricted the use of the exculpatory remarks to rebuttal testimony. Moreover, the court permitted such use only after determining that the State had not wilfully concealed the statements from the defense. The trial court also pointed out that the element of surprise had been removed. We find no reversible error in the admission of such evidence.

Defendant’s second contention is that the trial court committed reversible error in allowing into evidence certain statements made by the victim to Mrs. Longmire after the incident. Patricia Longmire testified that at approximately 11:45 P.M. on the night in question the victim came to her door, crying and upset, and said that Michael had kicked down her door and raped her. Mrs. Longmire also testified that in response to a question the victim stated that he said he had a knife and threatened to hurt her. This conversation took place within five minutes of the incident.

A hearsay statement may be admissible in evidence if it qualifies as a “spontaneous declaration,” and thus becomes one of the exceptions to the hearsay rule. (People v. Hill, 60 Ill.App.2d 239, 208 N.E.2d 662.) Three factors are necessary to bring a statement within die “spontaneous declaration” exception to the hearsay rule: (1) an occurrence sufficiently starding to produce spontaneous and unreflecting statement; (2) the absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. (People v. Poland, 22 Ill.2d 175, 174 N.E.2d 804; People v. Parisie, 7 Ill.App.3d 1009, 287 N.E.2d 310.) Although the fact that a statement results from extensive questioning can exclude it from this exception (People v. Taylor, 48 Ill.2d 91, 268 N.E.2d 865), the fact that the declaration comes in response to some inquiry does not automatically require exclusion. (People v. Damen, 28 Ill.2d 464, 193 N.E.2d 25.) And it is well settled that the statements of a rape victim on inquiry do come within this exception to the hearsay rule where such are made when the victim is still in a state of excitement from the incident, and where such statements relate to the incident. People v. Damen, supra; People v. Dery, 74 Ill.App.2d 112, 219 N.E.2d 536.

In the instant case, the out-of-court statements were made within five minutes of the occurrence. The victim, according to the evidence, was crying and visibly upset. The statements related to the circumstances of the crime. The victim was not questioned extensively; rather Mrs. Longmire asked only one question. The statements to Mrs. Long-mire were admissible as “spontaneous declaration” exceptions to the hearsay rule, and the trial court did not err in allowing them into evidence.

Under this argument, defendant also urges that the trial court committed reversible error in allowing Officer Efantis to testify that after he left the victim’s apartment he proceeded to an Indiana Avenue address. It is clear from the record, however, that this ancillary statement could not have been prejudicial to defendant.

Defendant’s third contention is that three comments made by the prosecutor during trial in the presence of the jury were so improper as to have denied him a fair trial. Under this heading, defendant also maintains that the action of the trial judge in restricting his cross-examination of the victim was prejudicial error.

In our view, the prosecutor’s comments, although improper, did not constitute reversible error, nor did they affect defendant’s right to a fair trial. During recross-examination of Mrs. Longmire, defense counsel asked if she had given any statements to the police. The prosecutor objected on the grounds that the question was beyond the scope of redirect examination, and interposed the statement that the State had given its file, including all the police reports, to defense counsel the day before. In People v. Scott, 4 Ill.App.3d 279, 280 N.E.2d 715, this court ruled that a defendant was not prejudiced by the prosecution’s tendering of the police reports to defense counsel in the presence of the jury. The court pointed out that no argument had been made to the jury by the prosecution on the inference that might be drawn by the failure of the defense to present the reports into evidence. (Also see People v. Sanders, 110 Ill.App.2d 85, 249 N.E.2d 124.) In the instant case, the prosecutor did not furnish the reports to the defense in the presence of the jury, but merely commented that he had furnished the reports on the previous occasion. The prosecutor did not again refer to the matter, and did not argue the point to the jury. Under those circumstances, defendant was not prejudiced and there was no reversible error.

The second remark complained of occurred during the cross-examination of the defendant, when the prosecutor told the defendant to stop looking at his counsel and to look at him. The trial judge immediately instructed the jury to disregard the remark. The comment, although inept, could have no prejudicial effect on the defendant.

Thirdly, in response to defense counsel’s closing argument, the prosecutor stated that he believed that the victim had testified that defendant did not have an orgasm. There had been no direct testimony admitted on this subject. The comment of the prosecutor, although inaccurate, did not constitute reversible error.

The defendant also complains that the trial judge committed reversible error in restricting his cross-examination of the victim regarding the lighting conditions in her apartment at the time of the occurrence. An examination of the record reveals that the victim was examined exhaustively on the lighting conditions in her room, and the court did not err in refusing to allow further examination on the subject.

We find no merit in defendant’s fourth contention that defendant was not proved guilty beyond a reasonable doubt. In sex offenses, often stemming from clandestine circumstances difficult both to prove and disprove, a reviewing court is charged with a special duty to exercise the utmost caution and circumspection in examining the evidence upon which the conviction is predicated. However, the triers of fact are in a superior position to judge the credibility of the witnesses and to weigh their testimony, and a reviewing court will not disturb the determination of the fact finders in this regard unless the evidence, as a whole, is so unsatisfactory as to raise a reasonable doubt. (Pointer v. Pointer, 6 Ill.App.3d 113, 285 N.E.2d 171.) In the present case, the victim was acquainted with defendant. He had been to her apartment on several occasions. Her testimony and identification of defendant were clear, positive, convincing and unshaken. The testimony of one eyewitness when clear and convincing, is sufficient to support a conviction. (People v. Mack, 25 Ill.2d 416, 185 N.E.2d 154.) Additionally, the victim’s immediate complaint to Mrs. Longmire that she had been raped provided corroboration of her testimony. (People v. Davis, 10 Ill.2d 430, 140 N.E.2d 675.) Any conflicts in testimony were for the triers of fact to resolve, and they were not obliged to believe the alibi testimony provided by the defense. (People v. Jackson, 95 Ill.App.2d 28, 237 N.E.2d 858.) Defendant was proved guilty beyond a reasonable doubt.

Defendant’s final contention is that the sentences of ten to fifteen years were excessive, and should be reduced by this court. The Supreme Court has indicated that the authority of a reviewing court to reduce sentences should be exercised with considerable care and circumspection. (People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673.) Although defendant was young and had no prior criminal convictions, the instant crime was particularly heinous. Armed with a knife, the defendant raped the victim, and threatened to injure both the victim and her three-year-old daughter. Under these circumstances, we do not believe that a reduction of the sentences imposed is appropriate.

For the reasons stated, the judgments of the circuit court are affirmed.

Judgments affirmed.

DEMPSEY, P. J., and McGLOON, J., concur.


author: Mr. JUSTICE McGLOON

text:
    Stanton Brooks, Plaintiff-Appellee, v. La Salle National Bank et al., Defendants-Appellants.
    (No. 57218;
    First District (3rd Division)
    May 3, 1973.

      Harold J. Green, of Chicago, for appellants.
    Paul M. Katzovitz, of Legal Aid Bureau, of Chicago, for appellee.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

Defendants pursue this interlocutory appeal from an injunctional order of the circuit court of Cook County, chancery division, commanding them to restore plaintiff to possession of Apartment 500, 5200 South Blackstone Avenue, Chicago, and his personal property located therein. Defendants obtained an order of the court staying the force and effect of the injunctional order pending this appeal.

Defendants raise four issues for our consideration: (1) Whether the complaint is sufficient on its face to be a basis for the granting of a temporary mandatory injunction; (2) Whether the trial court erred in granting a temporary mandatory injunction without hearing testimony where a verified answer and counterclaim were filed; (3) Whether the trial court erred in issuing a temporary mandatory injunction without bond; and (4) Whether the temporary mandatory injunction is enforceable.

We affirm.

The chancellor ordered the temporary injunction on the basis of the allegations of plaintiff’s verified complaint and defendants’ verified answer. The allegations which arise from the pleadings are as follows: Plaintiff, Stanton Brooks, entered into a one-year lease as lessee with lessor, Blackwood Apartment Hotel, which was owned by defendant Green, managed by defendant Kreps, and held in a land trust with defendant bank as trustee. The lease on Apartment 500 ran from May 1, 1971, to April 30, 1972, at a monthly rental of $175. A security deposit of $175 was paid. On February 25, 1972, plaintiff attempted to enter his apartment at the Blackwood Apartment Hotel, but the door was “plugged” in such a way that his key would not open it. At this time plaintiff had $2855 of personal property located in the apartment. Plaintiff s demand for admittance to the premises was refused. Plaintiff’s attorney telephoned defendant Kreps in order to demand a return of the premises and the personal property, but she refused. Plaintiffs attorney also sent a letter to Kreps making the same demands, but at the time plaintiff filed his complaint on March 10, 1972, he had not been allowed to re-enter the apartment nor had his personal property been returned.

In their answer, defendants allege that plaintiff was in arrears for his January, 1972, rent in the amount of $100.18 and for his February, 1972, rent in the amount of $175. Plaintiff presented defendants a check for $100.18 as payment for the January arrearages, but such check was returned for insufficient funds. Under the terms of the lease, the lessor provided a furnished apartment, linens, maid service, and telephone switchboard service. Clause 13 of the lease provided, in pertinent part:

“IT IS EXPRESSLY AGREED, Between the parties hereto, that if default be made in the payment above reserved or any part thereof, * * * it shall be lawful * * * to declare said term ended, to reenter said demised premises or any part thereof and the said party of the second part (lessee), or any other person or persons occupying the same to expel, remove and put out, using such force as he may deem necessary in so doing, and the said premises again to repossess and enjoy as in his first estate * 9 9.”

Defendant Kreps verbally notified the plaintiff that the check for $100.18 had been twice returned unpaid and that he owed a total of $278.28, which included overdue rent and telephone charges. She warned him that unless she received a certified check for the total amount in two days, she would terminate his tenancy. The answer further averred that the plaintiff became abusive, threatened to damage or destroy the furnishings in the apartment, and refused to pay the past-due rent. Befieving that plaintiff would execute his threats, Kreps changed the locks on the door and obtained possession of tire apartment. Kreps offered to permit plaintiff to remove his personal property from the apartment under certain conditions, but plaintiff refused.

In their answer, defendants relied on Clause 13 of the lease to justify their obtaining possession of the apartment without resorting to legal proceedings. They also asserted an innkeeper’s Hen on the plaintiff’s personal property pursuant to Ill. Rev. Stat. 1971, ch. 82, par. 57. They objected to the plaintiffs seeking equitable relief, because they claim that he did not comply with the equitable maxims of “clean hands” and “a plaintiff who seeks relief from a court of equity, must himself offer to do equity.”

Defendants counterclaimed for $453.28, which represented the unpaid rent for three months and telephone charges. In addition to asserting an innkeeper’s lien on plaintiff’s personal property, defendant claimed a right to distrain the personal property for the past-due rental pursuant to Ill. Rev. Stat. 1971, ch. 80, par. 16.

Alleging that he had no adequate remedy at law, plaintiff stated in his complaint that (1) he had none of his personal belongings and effects necessary to manage his everyday affairs, (2) that he had no place to live, and (3) that he had a great fear that his possessions would not be secure.

On the basis of the complaint, answer, and counterclaim, the chancellor granted the plaintiff’s prayer for temporary relief and issued an order without bond, commanding the defendants “to DESIST AND REFRAIN from selling, giving, transferring, or delivering possession of plaintiff’s personal property in any way and to DESIST AND REFRAIN from denying the plaintiff access to Apartment 500, 5200 S. Blackstone, Chicago, Ill., and DESIST AND REFRAIN from refusing to deliver into plaintiff’s possession said personal property in the possession of defendants.”

Defendants’ first contention is that plaintiff’s complaint is insufficient to authorize the granting of temporary injunctive relief. Defendants direct our attention to Schlicksup Drug Co. v. Schlicksup (1970), 129 Ill.App.2d 181, 186, 262 N.E.2d 713, 715, where the court stated:

“As a prerequisite to the issuance of the preliminary injunction, the plaintiff was required to establish the probability of the ultimate success on the merits of the case as well as the immediate need for the injunction to preserve the status quo and to prevent irreparable injury to its rights or property.”

Defendants argue that plaintiff has not made out a case for irreparable injury sufficient to warrant temporary injunctive relief. We believe that the reasons plaintiff set out in his complaint in the paragraph wherein he stated he had no adequate remedy at law sufficiently show irreparable damage of the degree necessary to authorize the granting of preliminary relief. He alleged that he had no place to live and did not have the use of any of his personal effects as a result of defendants’ conduct. To relegate the plaintiff to the position of seeking relief in court under the forcible entry and detainer statutes (Ill. Rev. Stat. 1971, ch. 57), as the defendants suggest, would not prevent the immediate and serious possibility of harm to plaintiff’s health as a result of being out on the street without his personal belongings. We believe it is highly presumptuous for the defendants to rely on self-help in obtaining possession of the apartment and then suggest to this court that the plaintiff, once deprived of possession, should have pursued the more orderly legal processes which the forcible entry and detainer laws make available.

Defendants also argue that plaintiff has not shown tire probability of ultimate success on the merits. The probability of ultimate success on the merits depends not only on the sufficiency of plaintiffs complaint but also on the defenses raised by the answer. We shall consider the question of whether the answer raised a complete defense as part of defendants’ argument that plaintiff did not show the probability of ultimate success on the merits. In their answer, defendants rely on Clause 13 of the lease for their right to self-help in gaining possession of the apartment upon default in the payment of rent. The latest Illinois case upholding the validity of a provision in a lease giving to the landlord the right on certain contingencies to re-enter without process or by such force as is necessary dates back to 1907. (See, Annot. 6 A.L.R.3d 177 (1966).) We believe the more modern enlightened view appears in Jordan v. Talbot (1961), 55 Cal.2d 597, 12 Cal.Rptr. 488, 361 P.2d 20. With Justice Traynor speaking for the majority of the court, the court held that a provision in a lease expressly permitting a forcible entry would be void as contrary to the public policy of the California forcible entry and detainer statutes. The court went on to say: “Regardless of who has the right to possession, orderly procedure and preservation of the peace require that the actual possession shall not be disturbed except by legal process.” (55 Cal.2d 597, at 605, 12 Cal.Rptr. 488, at 492, 361 P.2d 20, at 24.) Without deciding the issue on the merits, we feel that Jordan v. Talbot expresses the modern trend on the subject, and we believe that Clause 13 of the lease was not a complete defense.

Defendants fare no better in asserting an innkeeper’s lien or the right to distress as justification for withholding plaintiff’s personal property. We think that neither remedy authorized tire defendants’ use of self-help. Defendants must resort to judicial proceedings to distrain the property for the unpaid rent. Faubel v. Michigan Blvd. Bldg. Co. (1934), 278 Ill.App. 159.

In Fuentes v. Shevin (1972), 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556, the Supreme Court held that Florida’s prejudgment replevin statute which authorized the taking of property without notice or prior hearing violated the Due Process Clause of the fourteenth amendment. In the instant case, we think that defendants’ withholding of plaintiffs personal property pursuant to Ill. Rev. Stat. 1971, ch. 82, par. 57, without allowing plaintiff proper notice or hearing is violative of the general rule that due process requires proper notice and hearing before there can be a deprivation of property. See, Collins v. Viceroy Hotel Corn. (N.D.Ill. 1972), 338 F.Supp. 390.

Defendants’ second contention is that the chancellor should not have issued a temporary injunction without having heard testimony where a verified answer and counterclaim were filed. "A temporary injunction cannot be predicated solely upon the pleadings where the material factual issues are controverted and the answer raises a complete defense. [Case omitted.]” (Lipkin v. Burnstine (1958), 18 Ill.App.2d 509, 518, 152 N.E.2d 745, 749.) It is improper for the chancellor to issue a preliminary injunction without first conducting a hearing on the controverted issues. Schlicksup Drug Co. v. Schlicksup (1970), 129 Ill.App. 2d 181, 262 N.E.2d 713.

In defendants’ verified answer, they admitted that the door to plaintiff’s apartment was “plugged” and further added to and explained the facts and circumstances surrounding this action. They also admitted that at the time of the filing of the complaint, plaintiff had not been allowed to re-enter his apartment, nor had his personal property been returned to him. These two uncontroverted allegations are the crux of plaintiff’s complaint. Plaintiff did not file a reply. It was not error for the chancellor to issue the temporary injunction on the basis of the uncontroverted allegations of the pleadings, and he did not abuse his discretion in not hearing testimony. Seay & Thomas, Inc. v. Kerrs, Inc. (1965), 58 Ill.App.2d 391, 208 N.E.2d 22.

Defendants also object to the issuance of the injunction, because they allege that the plaintiff comes into a court of equity with unclean hands and that in order to seek equitable relief, the plaintiff must offer to do equity, which, they allege, he had not done. Defendants maintain that the payment of the January rent with a check which was returned for insufficient funds constitutes sufficient fraud or bad faith to show “unclean hands.” They also maintain that the chancellor should not have granted the preliminary relief without ordering the plaintiff to pay the allegedly past-due rent and without ordering the plaintiff to refrain from damaging defendants’ property. Such issues as whether the plaintiff’s conduct was fraudulent in paying for his rent with a check subsequently returned unpaid can only be decided after a full hearing. (Consumers Digest, Inc. v. Consumer Magazine, Inc. (1968), 92 Ill.App.2d 54, 235 N.E.2d 421.) Defendants’ raising of such equitable defenses does not preclude the issuance of a temporary injunction.

Although the chancellor’s order is couched in negative terms, in substance it is a mandatory order which commands the defendants to allow plaintiff to occupy the apartment and to return his personal belongings. Defendants argue that this order is improper, because it changes the status quo as it existed when the complaint was filed. The primary purpose of a preliminary injunction is to preserve the status quo until there can be a final hearing on the merits. The status quo which will be preserved by a preliminary injunction is “the last actual, peaceful, uncontested status which preceded the pending controversy.” (Deisenroth v. Dodge (1953), 350 Ill.App. 20, 111 N.E.2d 575.) Usually this is accomplished by keeping everything at rest. Sometimes, the condition of rest is exactly what will inflict the irreparable injury, and it is in such situations that it is proper for the chancellor to issue a temporary mandatory injunction. Scholz v. Barbee (1951), 344 Ill.App. 630, 101 N.E.2d 845.

In Quinn v. The Fountain Inn (1920), Ill.App. 260, the court stated:

“While, as a general rule, courts of equity will not interfere by preliminary injunction, to change the possession of real property, until the right to such change is determined at law, they will do so where it is clear from the allegations in the bill that the defendants’ possession is but an interruption of the prior possession of the complaint, to which the latter was entitled. Thus, where a lessor or lessee has forcibly taken possession of the leased premises in violation of the terms of the lease, he may be compelled by mandatory injunction * * * to surrender possession to the one entitled thereto * * *. By so doing, the status quo, as established by the terms of the lease, as described by the allegations of the bill * * * is preserved until the controversy can be heard on its merits. 218 Ill.App. 260, at 263. See Annot. 15 A.L.R. 2d 213, 274 (1951).”

In the instant case the last actual peaceable uncontested status was that of the plaintiff in possession of his apartment. The defendants’ exclusion of the plaintiff from his apartment was but a mere interruption of such possession. Although the defendants object that the chancellor’s order required them to undo certain acts which they did before the complaint was filed, this is a case where, because there was a showing of great necessity, the issuance of a mandatory injunction was proper. Ambassador Foods Corp. v. Montgomery Ward & Co. (1963), 43 Ill.App. 2d 100, 192 N.E.2d 572.

Defendants’ third contention is that the chancellor erred in issuing the injunctive order without bond. According to Ill. Rev. Stat. 1969, ch. 69, par. 9, it is discretionary with the court as to whether it will require the posting of a bond before it issues a preliminary injunction. The case cited by the defendants, Hoffman v. City of Evanston (1968), 101 Ill.App.2d 440, 243 N.E.2d 478, was decided under a 1967 Amendment which withdrew from the courts the right to waive the posting of bond and left for the courts the sole responsibility of determining the proper amount of bond. The 1969 Amendment which is applicable to the instant case restored to the chancellor discretion to decide whether or not a bond would be required. (See, John Deere Co. v. Metzler (1964), 51 Ill.App.2d 340, 201 N.E.2d 478.) The lease showed that plaintiff had already paid the required $175 security deposit.

Under the circumstances of the instant case, we do not think the chancellor abused his discretion by not requiring plaintiff to post a bond. This is not a case where a very highly valued interest in property is immobilized as a result of the imposition of a temporary injunction to the extent that there is a serious financial matter. (Schaefer v. StephensAdamson Mfg. Co. (1962), 36 Ill.App.2d 310, 183 N.E.2d 575.) In passing, we note that the chancellor did require the defendants to post a $5000 appeal bond and bond for costs and damages, but at the same time he stayed the force and effect of the injunctional order.

Defendants’ final contention is that the injunctional order is void and unenforceable, because it did not comply with the relevant statute which prescribes the form which an injunctional order is to take. Ill. Rev. Stat. 1969, ch. 69, par. 3—1, provides, in pertinent part:

“Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; * *

We find no merit in defendants’ argument that the order was defective because it stated “for good cause shown” and did not explicitly state the reasons for its issuance. The issues in the case were clear enough so as to obviously apprise the defendants of the chancellor’s reasoning in issuing the injunctional order. The order clearly and concisely advised the defendant of the ruling of the court and the precise conduct mandated, and otherwise complied with the requirements of the statute. (Illinois School Bus Co. v. South Suburban Safeway Lines, Inc. (1971), 132 Ill.App.2d 833, 270 N.E.2d 200.) To defendants’ argument that the order improperly granted the plaintiff all the relief which he would have obtained upon the issuance of a final injunctional order, we reiterate that the order merely preserved the status quo pending further inquiry into the merits of the case.

The granting of a temporary injunction resides in the sound discretion of the chancellor. Unless we find an abuse of discretion, we will not set aside the chancellor’s order. (Schultz v. Agenlian (1967), 90 Ill.App.2d 131, 234 N.E.2d 345.) In deciding whether to issue a preliminary mandatory injunction, it is proper for the chancellor to balance the relative convenience and injury to the parties which would result. (Davis v. East St. Louis and Interurban Water Co., Inc. (1971), 133 Ill.App.2d 801, 270 N.E.2d 424.) In the instant case the injury and inconvenience to the plaintiff of being unknowingly and suddenly without a place to live and without his basic personal belongings is severe in comparison to the defendants having to allow the plaintiff the use of one of their apartments pending resolution of the issues on the merits. We believe the chancellor acted fairly in temporarily relegating the plaintiff and defendants to positions which would create the least injury to both parties.

For the above reasons, the order of the circuit court of Cook County is affirmed.

Judgment affirmed.

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


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Smith, Defendant-Appellant.
    (No. 57866;
    First District (3rd Division)
    May 3, 1973.
    No appearance for appellant.
    No appearance for the People.
   PER CURIAM.


author: Mr. JUSTICE HALLETT

text:
    Western Fire Insurance Co., Plaintiff-Appellant, v. Joseph Moss et al., Defendants-Appellees.
    (No. 55718;
    First District (1st Division)
    May 7, 1973.

      Rehearing denied June 7, 1973.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellant.
    Philip H. Corboy, of Corboy and Kotin and Associates, and Samuel L. Evins, of Richman & Evins, both of Chicago, (Sidney Z. Karasik, of counsel,) for appellees.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

The Nature of the Action

This was a declaratory judgment action brought by the plaintiff insurance company against the defendant seeking to have a predated insurance policy issued to defendant Moss declared void ab initio. A third party action filed by said defendant against Louis Kamberos was severed at the time of trial and is not involved on this appeal. After a bench trial, the court held the policy to be valid and entered judgment in favor of the defendants and against the Plaintiff, and this appeal followed. No questions are raised on the pleadings.

The Facts

On Friday, August 16, 1968, defendant Moss telephoned his broker, the Kamberos Insurance Agency, and asked to speak to Louis Kamberos, who had previously obtained auto insurance for him. Kamberos was not in but the call was transferred to a William Dante, an independent insurance broker, who shared offices with Kamberos but was not associated with him. Moss told Dante that he intended to buy a boat, motor and trailer and wanted physical damage and public liability on it and gave him its value.

At about noon the next day, Saturday, August 17, 1968, Moss bought the boat, motor and trailer and telephoned Kamberos, who was out. Again he talked to Dante, who told him that the serial numbers of the boat, motor and trailer would be needed. Moss told him that he was going over to pick up the boat and asked if he could put him under a binder. Dante said that he could but that he would have to be there by 2:00 that afternoon. At about that time Moss went to Kamberos’ office but neither Kamberos nor Dante was there. Moss left a piece of paper with the serial numbers on it with someone else in the office and both of them marked on the envelope the time. Moss thought that he was then insured.

On Saturday and Sunday Moss used the boat. On Monday morning Kamberos found the serial numbers with Dante’s note on his desk and assumed that Moss had bought the boat on August 17, 1968, and wanted the effective date of insurance to begin on that date. In the afternoon, in response to a message to call Kamberos, Moss contacted him. Kamberos told Moss that he needed the exact cost breakdown on the boat, motor and trailer and Moss told him to call Milo-Craft, the vendor, for those details. Moss also told Kamberos that he had used the boat twice and thought that he was insured and that he intended to use it again that night. Kamberos told him that he was insured. Kamberos tried twice unsuccessfully on Monday to reach Pencil, of Milo-Craft, to get the breakdown figures, and left word for Pencil to call him.

On Monday evening August 19, 1968, the boat collided with a barge on the Calumet River. Moss suffered serious injuries, was in intensive care for 14 days and was hospitalized for 31 days. The other occupants of the boat, defendants O’Malley, Regan and Steglisch, also suffered injuries. George O’Donnell, Jr. was killed and his administrator is a defendant in this action.

On Tuesday morning, August 20, 1968, Kamberos finally reached Pencil and got the cost breakdown on the boat, motor and trailer and, unaware of the accident the night before, completed the application for insurance effective on August 17, 1968, and mailed it to the Buschbach Agency, an agent for the plaintiff, Western Fire Insurance Company.

That afternoon, Tuesday, August 20, 1968, Moss’ sister notified Kamberos’ secretary that “there was an occurrence” and she passed this on to him. Kamberos did not contact either the Buschbach Agency or Western Fire because he did not know “where it happened; or who or what was involved”, although he did testify that had he known of the accident before he mailed in the application, he would not have mailed it.

On the 21st or 22nd of August, the Buschbach Agency received the application. There had been no prior conversations with Kamberos or Moss and no request for a binder had been made. The Buschbachs put their sticker on the application and forwarded it on to Western Fire. It was not unusual for the Buschbach Agency to receive boat applications in the mail and they did not contact the Kamberos Agency. Had the Buschbach Agency known of the August 19th accident when it received the application on August 21, it would not have accepted the risk.

The application, which read “no losses”, was received at Western Fire on August 23, 1968. Also unaware of the loss, Western Fire proceeded to issue its insurance policy effective August 17, 1968, the date Kamberos had put on the application. Had Western Fire been aware that a loss had occurred on August 19, 1968, or that the application had not been received at the Buschbach Agency until August 21, 1968, it would have declined the application. It does not follow a practice of predating policies and assumed that the agency had issued a binder as of August 17, 1968.

On August 27, 1968, Kamberos received the policy and a bill and mailed them to Moss.

After his release from the hospital, Moss received the policy and bill from Kamberos and paid the premium. Thereafter, on September 27, 1968, Moss reported the accident to Kamberos, who then telephoned the Buschbach Agency and gave them their first notice of the August 19th loss. Buschbach immediately telephoned Western Fire and also forwarded to it a written notice of the loss.

After such notice, Western Fire, under a non-waiver agreement, investigated the facts and in January of 1969, wrote Moss declaring the policy void and returning the full amount of the premium. The present declaratory judgment followed.

The Judgment Below

After a bench trial developing the facts as above stated, the trial court found that Kamberos was the agent of Moss and not of Western Fire; that Western Fire was not aware of the accident when it issued the policy; that, since Moss was unconscious from the time of his accident until after the policy had been issued and could not have informed the insurance company of the accident, he was not guilty of any fraud in not reporting it before the policy was issued; that Moss did pay the premium; and, “as to whether or not the failure of Mr. Kamberos, who was the agent of Moss * * * to inform them could be imputed to Moss”, that

“I conclude that it cannot. He is a limited agent. His agency is that, simply, of getting them insurance and the fact that might have been negligence, whether it was knowingly or otherwise, that he failed to inform them cannot be imputed to the insured. He was an agent for that purpose, so that is absent.”

The trial court therefore found the issues in favor of the defendants and against the plaintiff and entered judgment accordingly, thus sustaining the validity of the policy. This appeal followed.

The general principles of law in this field are well established and are not seriously disputed. The trouble, as often, comes when refinements of the rules are applied to a specific set of facts.

In 9 Couch on Insurance, 2d in section 38:21, it is said:

“2. KNOWLEDGE OF SUBSEQUENT FACTS
“Sec. 38:21. Knowledge after application but before issuance of policy.
Known changes in conditions material to the risk which occur between the opening of negotiations for insurance and the issuance of the policy must be divulged. That is, there is a continuing duty on the part of an applicant to disclose newly discovered matters arising between the application for, and the confirmation of, the contract where they come to the applicant’s knowledge and render his former answers no longer true.” (Footnotes omitted.)

In 7 Couch on Insurance, 2d in section 35:98, it is said:

“Sec. 35:98. Duty of subsequent disclosure.
In consequence of the continuing character of the representation from the moment of its making to the time when the contract is binding, a duty rests upon the insured to reveal conflicting knowledge acquired by him between those two dates. So it is held that matters material to the risk, occurring and becoming known to insured between the time of making the application and the final completion of the contract and concerning which inquiries had been made, must be disclosed; and if, while the insurer is deliberating upon the application for insurance, the applicant discovers facts which make portions of his statements in the original application no longer true, the most elementary spirit of fair dealing calls for a full disclosure.” (Footnote omitted.)

In 12 Appleman, Insurance Law and Practice, it is said, in section 7275:

“Sec. 7275. Changes in Risk of Hazard.
Under a good faith doctrine, the insured is under a duty to disclose to the insurer all facts affecting the risk which arise after application and before the contract has been consummated. # # * ”

In Carroll v. Preferred Risk Ins. Co. (1966), 34 Ill.2d 310, 215 N.E.2d 801, cited by plaintiff, our Supreme Court, at page 312, said:

“The relationship between an applicant and an insurer requires good faith on the part of the applicant because of the peculiar character of the insurance contract. The applicant has an obligation imposed by law to notify the insurer of any changed condition materially affecting the risk during the pendency of the application for insurance. Western and Southern Life Insurance Co. v. Tomasun, 358 Ill. 496; Stipcich v. Metropolitan Life Insurance Co., 277 U.S. 311, 72 L.Ed. 895."

In Stipcich v. Metropolitan Life Insurance Co. (1928), 277 U.S. 311, 72 L.Ed. 895, above cited by our Supreme Court, the United States Supreme Court had said, at pages 316-317, that:

# * [E]ven the most unsophisticated person must know that in answering the questionnaire and submitting it to the insurer he is furnishing the data on the basis of which the company will decide whether, by issuing a policy, it wishes to insure him. If, while the company deliberates, he discovers facts which make portions of his application no longer true, the most elementary spirit of fair dealing would seem to require him to make a full disclosure. If he fails to do so the company may, despite its acceptance of the application, decline to issue a policy, Canning v. Farquhar, 16 Q.B.D. 727; McKenzie v. Northwestern Mutual Life Insurance Co., 26 Ga. App. 225, or if a policy has been issued, it has a valid defense to a suit upon it. Equitable Life Assurance Society v. McElroy, 83 Fed. 631, 636, 637. Compare Traill v. Baring, 4 DeG. J. & S. 318; Allis-Chalmers Co. v. Fidelity & Deposit Co. of Maryland, 114 L.T. 433; compare Piedmont and Arlington Life Insurance Co. v. Ewing, 92 U.S. 377.”

See, also: Palmer v. Bull Dog Auto Ins. Ass’n, 294 Ill. 287, 128 N.E. 499; Western & Southern Life Ins. Co. v. Tomasun, 358 Ill. 496 at 503, 193 N.E. 451; Hansen v. Continental Casualty Co., 156 Wash. 691, 287 P. 894; Strangio v. Consolidated Indemnity Co., (9th Cir. 1933), 66 F.2d 330.

The defendants contend, however, that the above general rule requiring the disclosure of material changes during the pendency of the application does not apply in the case at bar for several reasons.

I

Their first main contention, which has three subdivisions, is that there was no “fraud” or “concealment” of the disastrous collision of August 19, 1968, in the case at bar—

(a) Because Moss, being unconscious and in intensive care throughout the pendency of the application, could not himself have notified anyone, let alone the plaintiff or its agent, Buschbach, of the accident. (This is doubtless sound and is conceded but does not in itself eliminate fraud or concealment through Kamberos as his agent.)

(b) Because, although Moss’ sister had reported the collision the next afternoon to Kamberos’ secretary, who advised him, shortly after he had mailed the application to Buschbach, that there had been an “occurrence”, he did not notify either Buschbach or Western Fire “because he did not have all the pertinent facts at his disposal”.

(c) Because, “even if Kamberos did know of the loss and willfully failed to communicate it to the plaintiff, this ‘concealment’ cannot be imputed to Moss” because Kamberos’ “authority was exhausted once he had mailed the application for the insurance.”

Dealing first with (b) above, the contention that Kamberos did not have to advise Buschbach or Western Fire of the collision because all that his secretary had told him was that Moss’ sister had advised her that there had been an “occurrence” falls of its own weight. He certainly should have inquired further or, at least passed what he knew on to Buschbach or Western Fire, which would have prevented the issuance of the policy. Even Kamberos admitted that had he heard of the “occurrence” before he mailed in the application, he would not have mailed it.

In Orient Insurance Co. v. Peiser (1900), 91 Ill.App. 278, Peiser requested his broker, Magill and Chamberlain, to secure fire insurance on certain personal property and Webster, the broker’s chief clerk, personally filed an application for such insurance with Loeb & Sons, agents of the Orient Insurance Company, which accepted it. Between 4:00 P.M. and 4:20 P.M. that day a fire was discovered by which the property was destroyed. Webster testified that the application was accepted by Loeb at three o’clock but Loeb testified that it was not until five o’clock. Webster admitted that he knew at 4:45 P.M. that there was a fire in the neighborhood where the property was situated, but testified that he did not then know that the building in which the property was then stored was on fire.

The defendant tendered the following instruction which was refused:

“IV. The court instructs the jury that in applying to the agents of the defendant, for insurance upon the property of the plaintiff, the plaintiff, or his agent, was bound to the utmost good faith in said application and to disclose the true condition of the property at the time of the consummation of the contract; if the jury believe from the evidence that any contract of insurance ever was consummated between said plaintiff and said defendant, and if the jury further believe from the evidence that the plaintiff, or his agent, concealed from the defendant, or its agents, any fact material to the risk, or which if disclosed to the agents of the defendant would have caused them to refuse to issue said policy, then said plaintiff was not acting in the utmost good faith with the agents of said defendant, and said policy is void, and the jury must find the issues for the defendant.”

In reversing a judgment for the applicant and remanding the case for another trial with directions to give said instruction, the court, at pages 279, 281, said:

“If there was a fire raging in the neighborhood of the building where said property was at the time said application was made, that was a very material fact which, if known to said Loeb & Son at the time, would no doubt have caused them to decline to accept said application. If said property had been destroyed at the time said application was accepted, then such contract of insurance would not become effective. If said Webster knew of said fire at the time he made such application and suppressed the fact, the contract for insurance then made can not be enforced because of fraud. * * *
* 4 4 If the application was not made until 5:00 P.M., and if said Webster knew of the fire at 4:45 P.M., then the rule stated in said instruction should have been before the jury, and should have guided them in arriving at their verdict. * *

The trial court did not adopt defendants’ said contention, that Kamberos was somehow excused from notifying Buschbach or Western Fire of the “occurrence” reported to him “because he did not have all the pertinent facts at his disposal”, and neither do we.

Passing then to contention (c) above, the defendants contend, in substance, that Kamberos’ concealment of the fatal collision from Buschbach and Western Fire cannot be imputed to Moss because Kamberos’ authority was exhausted once he had mailed the application. The trial court accepted this view, but we do not.

The only case cited in support of this contention is Holbrook v. Institutional Insurance Co. of America (7th Cir. 1966), 589 F.2d 236, which holds merely that where a broker has applied for and actually received delivery of an insurance policy ordered by his customer, he has no authority thereafter to cancel and surrender the policy because the insured was, for a time, behind in his payments to his broker.

In Illinois, by statute, an insurance broker, such as Kamberos, is the agent of the applicant, not of the insurer, in the procurement of a policy of insurance (Ill. Rev. Stat. 1971, ch. 73, par. 1065.37). This has always been the Illinois rule. As our Supreme Court said in France v. Citizens Casualty Co., 400 Ill. 55, 58, 79 N.E.2d 28,

“The rule is that an insurance broker, like any other broker, is the agent of the person who employs him. If an insurance broker is engaged to purchase insurance covering property of the one employing him, he becomes the agent of the insured and not the insurer. (Lycoming Fire Ins. Co. v. Rubin, 79 Ill. 402.)”

In 12 Appleman, Insurance Law and Practice, sec. 7272, he says:

“An ordinary broker, employed to procure insurance, is the agent of the person employing him, and his concealment from the insurer of any material fact, whether wilful or not, is the concealment of his principal. An insurer, issuing a ship repairer’s liability policy for a period antedating the issuance of the policies, has been held entitled to rely on the repairer and its broker, acting as the repairer’s agent in applying for the issurance, to make known the facts of any accident preceding the issuance of, but covered by the policies and all other facts material to the risk. * #

In vol. 16, sec. 8722, he says:

“An agent soliciting policies of automobile insurance not directed to place the policy with any particular company is the agent of the insured, not the insurer, * * (Footnote omitted.)

and sec. 8728, that:

# * An insured, is bound by his broker’s acts, even though fraudulent, and is charged with such broker’s knowledge, and cannot challenge the validity of the contract which the broker makes for him. Consequently, a misrepresentation or breach of warranty by such broker is, in law, the act of the insured, and he is chargeable with the consequences thereof.” (Footnotes omitted.)

In 7 Couch on Insurance, 2d, section 35:161, it is said:

“Sec. 35:161. Broker as insured’s agent.
Where the broker is regarded as the agent of tire insured, the latter is not excused from the effect of false statements made by the broker. * * *”

and, in 9 Couch on Insurance 2d, sec. 38:10, that:

“Sec. 38:10. Concealment by broker.
Where the broker is the agent of the insured to procure the policy, concealment by him of material facts voids the policy.
* * *” (Footnote omitted.)

We therefore hold that Kamberos’ agency for Moss was for the ultimate procurement of an insurance policy and was not exhausted or terminated by the mere mailing of the application on the morning of August 20, 1968.

We therefore conclude that the defendants’ first main contention — that there was no fraud or concealment of the disastrous collision of August 19, 1968 — is without merit and that the policy issued by the company, without any hint of said prior loss is void — -unless the defendants’ final main contention, hereinafter stated, changes all of this.

II.

This brings us to the defendants’ final contention — that the rules above enunciated do not apply to this case because here the application was for a predated policy and that this shifts the risk of material changes during the pendency of the application to the insurance company, which “need not issue the policy until it determines the facts on its own.”

Various texts and cases are cited and quoted, but the law in Illinois, is otherwise and follows the general rules previously enunciated.

It is, as defendants contend, well established that parties to an insurance contract may validly agree on an effective date which is prior to the actual execution of the policy so as to cover a loss which may already have occurred, but there are somewhat varying statements as to the circumstances under which this may be accomplished.

Defendants quote the following from 9 Couch on Insurance, 2d, sec. 39:87, p. 493:

“Although insurance policies ordinarily are prospective in operation only, they may be made retroactive as to the time of attachment so as to provide for indemnity for a loss which occurred prior to the date of the policies, for there is no principle of law which denies the parties the right to assume obligations antedating the date of the contract if the parties, for a valuable consideration, so elect, provided, of course, there is no fraud or concealment or material misrepresentation.” (Emphasis added.)

but this does not really change the general rules previously discussed.

They also cite and quote at length from Burch v. Commonwealth County Mutual Insurance (Tex. Sup., 1970), 450 S.W.2d 838, but there the Supreme Court of Texas (at p. 841) said:

“Most courts that have considered the question hold that recovery may be had on a police antedated to include the time at which a loss occurred provided neither the applicant nor the insurer knew of the loss when the contract was made. Appleman, supra, § 2291; 43 Am. Jur. 2d Insurance § 328; Annotation, 132 A.L.R. 1325. See also United States v. Patryas, 303 U.S. 341, 58 S.Ct. 551, 82 L.Ed. 883. We approve and adopt this as a general rule, because in our opinion it is entirely sound as applied to the facts of this case. Aside from any question of protecting insurance companies against possible fraud on the part of their customers or agents, we can think of no reason for holding that the parties may not effectively contract for the insurer to assume the risk of a loss that may or may not have occurred when the contract is made. If that is then- intention, they are not mistaken in any material respect even though the insured property has, in fact, been damaged or destroyed. When neither of them knows of the loss, there is no basis for charging the insured with fraud and the company is not in the position of promising unconditionally to pay a substantial amount of money in exchange for a much smaller sum.” (Emphasis added.)

This is reflected in the more recent case of Robbins v. Maryland American General Ins. Co. (Tex. Civ. App.), 472 S.W.2d 203, where the same court, at page 208, says:

“It is now settled law in this State that a recovery may be had on a policy of insurance against a loss occurring prior to the issuance of the policy provided that neither the insured nor the insurer knew of the loss when the contract was made. Burch v. Commonwealth County Mutual Inc. Co., 450 S.W.2d 838 (Tex. Sup. 1970). * * *”

These cases do not change the general rules discussed above.

In their argument the defendants finally contend that:

“The mere fact that the company receives an antedated application is sufficient to place it on notice that it may be issuing a policy to insure a loss that has already occurred. If it fails to make an appropriate investigation, then it should be chargeable with the facts it could- have obtained. This is consistent with the principle that one who has failed to exercise ordinary care to discover the truth cannot claim fraud. * *

and that:

“In summary, and as so eloquently stated by Justice Schaefer, plaintiff’s contention ‘overlooks the crucial difference between the duty to notify of changed conditions under an ordinary application and the duty that exists when predated insurance is involved’.”

Defendants’ above quotation from Justice Schaefer’s comments in Carroll v. Preferred Risk (1966), 34 Ill.2d 310, 215 N.E.2d 801, ignores the fact that said language is taken from his dissent and therefore demonstrates precisely what is not the law in Illinois.

In said case, the applicant, at 5:00 P.M. on June 22, 1962, mailed to the insurance company an application for an automobile liability insurance policy to be effective at 12:01 A.M. that same day. At 10:00 P.M. that night, June 22, 1962, he was involved in an automobile accident resulting in the death of plaintiffs intestate. The application was received on June 25, 1962, and the policy was issued, effective at 12:01 A.M. on June 22, 1962, as requested. No disclosure was made of the accident until after the issuance of the policy.

In holding that the policy was not effective and that the applicant was therefore uninsured, the Supreme Court through Mr. Justice Solfisburg, at pages 312-315, said:

“Palmer v. Bull Dog Auto Insurance Ass’n, 294 Ill. 287, involved a similar problem. In Bull Dog the plaintiff applied for an automobile theft policy and sent the application and premium to the insurer. The loss occurred, as in the case at bar, after the application was mailed, but prior to acceptance by the insurer. The court held that the loss was not covered by the policy, stating at pages 291-292:
‘Where a loss occurring before the risk attaches is known only to the applicant and he obtains a policy without disclosing the fact of loss the policy is void, even though the contract be given a date prior to the loss.” (I Joyce on Insurance, 2d ed., sec. 107.) a # #
While Mimms executed the application for insurance on June 22, the day of the fatal accident, the application was not received by Adams until June 25. Pursuant to ordinary contract principles, the application did not become an offer until it was communicated to the offeree, Adams, more than two days after the undisclosed fatal accident. It is essential to the existence of an offer that the proposal by the offerer be made known to the offeree. (Restatement of Contracts, § 23; 17 C.J.S. Contracts, sec. 38.) On the application Mimms answered in the negative to the question, ‘Has the applicant or any other person been involved in an automobile accident while operating any private passenger type automobile resulting in any damage to any property, including his own, or in bodily injury or death, during the preceding 36 months?’ We feel that the answer to this particular question must be considered a continuing representation that there has been no intervening material change in the risk from the date of the application to the time the policy is issued. Strangio v. Consolidated Indemnity & Ins. Co. (9th cir.) 66 F.2d 330.
# # e
In the present case Iberra was the agent of Mimms and had neither apparent nor actual authority to bind the risk. The material increase in the risk due to the fatal collision was known to Mimms but unknown to the insurer prior to the issuance of the policy. We, therefore, conclude that the issuance of the policy without disclosure of the increased risk was not effective and Mimms was an uninsured motorist at the time of the collision with plaintiff’s intestate.”
This is in line with the law generally.
In 9 Couch on Insurance, 2d, it is said, in section 38:23:
“Sec. 38:23. Occurrence of accident.
Where the applicant for an automobile liability policy, to his knowledge, had been involved in an accident prior to the issue of the policy but subsequent to his application, it was his duty to disclose such accident to the insurer even though the policy according to its terms was to take effect as of a day prior to the accident. * * *.
A workmen’s compensation policy will be avoided ab initio where the insured concealed the fact that an accident had occurred shortly before the application, despite the fact that the policy .was antedated and covered the period of the accident. (Footnotes omitted.)

In 12 Appleman, Insurance Law and Practice, in section 7272, this author says:

“* * * An insurer, issuing a ship repairer’s liability policy for a period antedating the issuance of the policies, has been held entitled to rely on the repairer and its broker, acting as the repairer’s agent in applying for the insurance, to make known the facts of any accident preceding the issuance of, but covered by the policies and all other facts material to the risk. * ° *”

In 132 A.L.R. 1325 in an annotation entitled “Antedating policy of insurance as affecting liability for loss that had already occurred”, it is said:

“It is generally held that where at the time of an application for insurance there has been a loss but neither the applicant nor the insurer knew of this fact a recovery may be had on a policy subsequently issued, which was antedated so as to include the time at which the loss occurred * * *.
But where one applies for a policy of insurance knowing that a loss has already occurred and conceals this fact and procures a policy to be antedated so as to cover the period when the loss occurred, the policy is void because of such fraud or concealment and no recovery can be had thereon. Massachusetts Bonding & Ins. Co. v. Hoxie (1937) 129 Fla 332, 176 So 480; Merchants’ Ins. Co. v. Paige (1871) 60 Ill 448 (by implication); MATLOCK v. HOLLIS (Kan) (reported herewith) ante, 1316; Wales v. New York Bowery R. Ins. Co. (1887 ) 37 Minn 106, 33 NW 322; Nippolt v. Firemen’s Ins. Co. (1894 ) 57 Minn 275, 59 NW 191; Continental Casualty Co. v. Lanzisero (1935) 119 NJ Eq 166, 181 A 170; Henshaw v. Insurance Co. of N.Y. (1901) 36 Misc 405, 73 NYS 1.”

In Hansen v. Continental Casualty Co., 156 Wash. 691, 287 P. 894, in reversing a judgment on an accident policy, the Supreme Court of Washington, at pages 895, 896, said:

“Appellant’s contention, which we think must be sustained, is that respondent’s agent McNally, in procuring the predating of this policy so that on its face it covered a date on which an accident had already occurred, known to respondent’s agent, but entirely unknown to the appellant and its agent, was guilty of conduct that voided the policy as to any liability for such in- l juries.
# # #
The rule that there is no liability on a policy upon an application of the kind in the present case, for an injury occurring between the date of the application to which the policy was predated and the date on which the policy was actually issued, where such injuries were unknown to the insurer at the time of issuing and delivering the policy, goes hand in hand with another well-settled rule that changes in condition material to the risk which occur between the opening of negotiations for insurance and the issuance of the policy must be disclosed, as an elementary spirit of fair dealing * *

We therefore hold that the defendant’s final contention — that the general rules heretofore enunciated do not apply to this case because here the application was for a predated policy and that this shifts the risk of material changes during the pendency of the application to the insurance company — is not the law, certainly in Illinois and probably generally.

III.

We therefore conclude that Moss’ insurance broker, Kamberos, was his agent, not only for the mailing of the application, but also for the ultimate procurement of a liability policy on his boat and motor; that shortly after mailing said application and days before it was received or processed Kamberos learned from his secretary that there had been an “occurrence”, which he did not investigate or report to Western Fire or its agent Buschbach; that during the pendency of that application Kamberos, as Moss’ agent for the procurement of the policy, was under a continuing duty to advise Western Fire or its agent Buschbach that there had been an “occurrence” (actually a fatal accident), which certainly was a change materially affecting the risk, and that his lack of knowledge of the details of said "occurrence” does not excuse the failure which constitutes, in law, a concealment or a fraud upon the insurance company, which had no hint of the fatal collision when it issued the policy; that this concealment or fraud vitiates the policy and bar's any recovery as against the insurance company; and that, certainly, under Illinois law and probably generally, this is true, even though the policy was predated to be effective before the policy was actually issued.

As a result, the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

BURKE, P. J., and GOLDBERG, J., concur.


author: Mr. PRESIDING JUSTICE BURKE.

text:
    Southland Corporation et al., Plaintiffs-Appellants, v. The Village of Hoffman Estates et al., Defendants-Appellees.
    (No. 56226;
    First District (1st Division)
    May 7, 1973.
    Edward T. Graham, of Wheaton, (Sidney Z. Karasik, of counsel,) for appellants.
    Hofert and Samelson, of Des Plaines, (Edward C. Hofert and Harry G. Fins, of counsel,) for appellees.
   Opinion by

Mr. PRESIDING JUSTICE BURKE.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Warstine Reese et al., Defendants-Appellants.
    (Nos. 56359-56360 cons.;
    First District (1st Division)
    May 7, 1973.
    Thomas J. Grippando, of Legal Aid Society, of Chicago, for appellants.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and James R. Carlson, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

BURKE, P. J., took no part.


author: Mr. JUSTICE GOLDBERG

text:
    Harold Johnson, a Minor, by Eula Johnson, His Mother and Next Friend et al., Plaintiffs-Appellees, v. Chicago & Western Indiana Railroad Company et al., Defendants—(The Department of Public Aid, Intervenor-Appellant.)
    (No. 56911;
    First District (1st Division)
    May 7, 1973.

      William J. Scott, Attorney General, of Chicago, (Warren K. Smoot and John D. Whitenack, Assistant Attorneys General, of counsel,) for appellant.
    Richard G. Finn and Thomas R. Challos, Jr., both of Finn and LeSueur, of Chicago, for appellees.
    William P. Tuggle, of Chicago, amicus curiae.

   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Harold Johnson, a minor (plaintiff), acting by his mother, brought suit for personal injuries against Chicago & Western Indiana Railroad Company. The parties settled their claim for $74,000 which was in the process of distribution by order of the circuit court. The Illinois Department of Public Aid (petitioner), acting by the Attorney General of Illinois, served notice upon the parties of its claim to reimbursement for stuns advanced by it to Cook County Hospital in behalf of plaintiff. With leave of court, petitioner filed an intervening petition claiming $12,226.14 for advances to the hospital for services rendered to plaintiff from May 23, 1967 through August 12, 1971. In due course, the circuit court entered an order reducing the claim to $4,680. Petitioner appeals.

No testimony was taken or evidence received by the trial court. Examination of the record shows that pursuant to notice duly served upon counsel for petitioner, on June 23,1971, the trial court entered an order directing plaintiff to file his petition to adjudicate the liens herein within five days and directing all respondents to file their answer thereto within five days thereafter. Plaintiff filed his petition within the time designated and served written notice of the filing thereof upon all attorneys of record. The petition alleged that Cook County Hospital and the Illinois and Cook County Departments of Public Aid claimed total liens of $20,740.69 for hospital services rendered to the minor. The petition also stated that the charges were excessive and unreasonable and were calculated by an unfair method. The petition further alleged that a part of the treatment given to plaintiff was in the nature of medical experiments performed upon him. Plaintiff prayed that the court adjudicate and substantially reduce the charges made.

No answer to this pleading was filed by petitioner. On July 1, 1971, Cook County Hospital filed an answer thereto. On August 12, 1971, the court entered an order upon plaintiff’s motion. This order recited the previous order of June 23, 1971 directing plaintiff to file his petition to adjudicate the liens within five days and directing the filing of answers thereto within five days thereafter. The order also recited that plaintiffs pleading was timely filed; Cook County Hospital filed its answer on July 1, 1971, but, “* * * that to date no answers or responsive pleadings have been filed for and on behalf of the Illinois Department of Public Aid and the Cook County Department of Public Aid.” The court accordingly found that these respondents were in default. The court also found that the lien filed by Cook County Hospital was previously adjudicated and that the claim filed by petitioner was in the total sum of $12,226.14 but the fair and reasonable charge for the services rendered plaintiff was $4680. Accordingly, the court ordered that petitioner was adjudged in default for failure to plead to plaintiff’s petition for adjudication of liens and its claim was adjudicated and reduced to $4680.

On September 10, 1971, petitioner filed a petition to vacate this default order. It alleged in substance that the reduction of its lien to approximately 38% thereof was an abuse of discretion; the claim was meritorious and the charges properly computed. Petitioner prayed vacation of the default and allowance of its claim in full.

Plaintiff responded by a motion to strike and dismiss. This pleading set out that no answer had been filed to plaintiff’s petition for adjudication and that the order of August 10, 1971 (actually entered as of August 12, 1971) was entered pursuant to written notice duly served upon petitioner by its counsel of record. The motion further averred that the petition to vacate the order set forth no excuse and no sufficient legal grounds but only conclusions.

On September 29, 1971, petitioner filed a lengthy memorandum in opposition to plaintiff’s motion to strike and dismiss. This document averred that there was no legal requirement that petitioner file an answer to the petition for adjudication of liens and that no answer was filed because an agreement between counsel had been reached adjudicating the lien of Cook County Hospital on the basis of 82% of the total claim and counsel for petitioner had “assumed” that its lien would be adjudicated upon the same basis. This document also pointed out the power of the court to vacate a default within 30 days and that plaintiff was in default for failing to answer the intervening petition for adjudication of lien originally filed by petitioner in accordance with an order of court requiring such answer within ten days.

On October 19, 1971, plaintiff filed a lengthy written memorandum in opposition to this memorandum. This document stressed the failure of petitioner to file its responsive pleading and the alleged lack of excuse for failure to do so. Plaintiff also urged that the court had power to require such an answer to be filed; no question of estoppel was presented by the record; no settlement was ever negotiated between plaintiff and the Attorney General of Illinois; the petition to vacate was defective because it failed to show diligence and that plaintiff was not in default. On October 19, 1971, the trial court entered a final order denying the petition to vacate and this appeal by petitioner followed.

In the briefs filed irt this court, petitioner contends that the trial court abused its discretion in denying the petition to vacate the order filed within 30 days and abused its discretion by the disparity in proportionate amounts between the claims of petitioner and that of the Cook County Hospital itself. It is further contended that the court had no constitutional right to reduce the claim of petitioner where funds were sufficient to make payment thereof. Plaintiff contends that the trial court acted properly in denying the petition to vacate because petitioner failed to show due diligence or the existence of a meritorious defense. Plaintiff further contends that the court had full authority under the Illinois Constitutions of 1870 and 1970 to adjudicate the claim of petitioner and to determine what portion thereof should be paid.

Under the view we take of the legal issues here presented, we need not pass upon most of the contentions raised. This motion to vacate the default order was made under the provisions of section 50(5) of the Civil Practice Act which is totally different from a similar motion made under section 72 of the same statute. (Ill. Rev. Stat. 1971, ch. 110, pars. 50(5) and 72.) In the case at bar, the filing of the petition within 30 days is sufficient evidence of diligence by petitioner. Also, within the 30 day period after entry of the order, the court had full power to vacate the default merely upon the showing of “good cause.” See McCleod v. McCleod, 133 Ill.App.2d 111, 272 N.E.2d 834, 836.

However, McCleod, and virtually all of the cases cited in the briefs of both parties on the question of vacating the default order, are concerned with situations in which a party fails to appear and the default judgment is entered ex parte. On the contrary, in the case at bar, the default order was entered because of the failure of petitioner to answer the petition of plaintiff for adjudication of the hospital hens within five days as directed by the previous order of the court entered June 23,1971. The court heard no evidence on the merits of the adjudication of the hens. The order entered August 12, 1971 defaulting petitioner and reducing the amount of its claimed hen recites only that the court heard arguments of counsel. In other words, petitioner was defaulted and deprived of a hearing on the factual and legal aspects of the case as a sanction or punishment because of its failure to comply with the order of court requiring the filing of an answer.

The matter of the type of sanctions to be imposed by trial courts is most commonly considered in connection with the Supreme Court rules pertaining to discovery. (See Supreme Court Rule 219, 50 Ill.2d R. 219.) Perhaps the most frequently cited case in a situation of this type is Gillespie v. Norfolk & W. Ry. Co., 103 Ill.App.2d 449, 243 N.E.2d 27. Note the citation of this authority in the recent case of Bower v. Chicago Transit Authority, 4 Ill.App.3d 1021, 283 N.E.2d 250. The following language from Gillespie seems decisive of the situation presented by the record at bar (103 Ill.App.2d at 456):

“Judgments by default are not encouraged. Such judgments are based on a technique of procedure and should be subject to careful scrutiny. Lichter v. Scher, 11 Ill.App.2d 441, 138 N.E.2d 66; Westmoreland v. West, 19 Ill.App.2d 161,153 N.E.2d 275. The court has other powers which are ample in most instances and make unnecessary the drastic action of judgment in bar. The entry of default should be employed as a last resort when necessary to enforce a just demand, but it should be set aside when it will not cause a hardship upon the parties to go to trial upon the merits. Widucus v. Southwestern Elec., 26 Ill.App.2d 102, 167 N.E.2d 799; Ryan v. Monson, 47 Ill.App.2d 220, 197 N.E.2d 265. The many sanctions suggested in Rule 219 emphasize a variety of flexible methods by which courts may insure both discovery and trial on the merits.”

In later cases, both of which cite Gillespie, this court has used even stronger language. In Schwartz v. Moats, 3 Ill.App.3d 596, 599, 277 N.E. 2d 529, and Bergin v. Ashford, 130 Ill.App.2d 835, 838, 264 N.E.2d 266, this court cited other authorities which support the statement that dismissal of a cause of action, a defense or counterclaim is “drastic punishment” to be imposed upon a litigant and should not be done except in cases of deliberate, unwarranted or contumacious disregard of the court’s authority. See also Bishop v. Canal-Randolph Corp., 10 Ill.App.3d 997, 295 N.E.2d 587.

These principles apply to the case at bar. As appears from the briefs of both parties, important factual and legal issues, even perhaps an issue concerning the constitutionality of a statute, were involved in the hearing before the trial court. Agencies of the State of IHinois and a minor child were interested parties. Under these circumstances, the trial court should not have invoiced the extreme sanction of default but should have used other methods for obtaining the filing of an answer by the Attorney General. This would have enabled all of the parties to have their day in court and to present such factual matters as they thought necessary, together with arguments of law. The trial court should not have proceeded to decide issues such as those here involved without the pleadings of both parties before it.

Because of the lack of proper pleadings and proceedings in the circuit court, we must refrain from deciding any of the remaining issues presented by this record. The order appealed from entered August 12, 1971, is accordingly reversed and the cause is remanded to the trial court with directions that all parties be required to file adequate pleadings and that the court then proceed to hear evidence and legal arguments, as required, in connection with adjudication of the lien claimed by petitioner.

Reversed and remanded with directions.

BURKE, P. J., and EGAN, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harold Brisker, Defendant-Appellant.
    (No. 55915;
    First District (2nd Division)
    May 8, 1973.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE STAMOS.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Robinson (Impleaded), Defendant-Appellant.
    (No. 56287;
    First District (2nd Division)
    May 8, 1973.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Opinion by

Mr. PRESIDING JUSTICE STAMOS.


text:
    Leeland Peake, Plaintiff-Appellee, v. The Village of Rosemont et al., Defendants-Appellants.
    (No. 57290;
    First District (2nd Division)
    May 8, 1973.
    Ancel, Glink, Diamond & Murphy, of Chicago, (Marvin J. Clink and Ronald S. Cope, of counsel,) for appellants.
    Leroy A. Carr, of Chicago, (Sidney Z. Karasik, of counsel,) for appellee.
   PER CURIAM.


text:
    Eastman Dillon Union Securities & Co., Inc., Plaintiff-Appellant, v. Herbert Shayman, Defendant-Appellee.
    (No. 58244;
    First District (2nd Division)
    May 8, 1973.
    Brazen & Norwell, of Chicago, (Lionel I. Brazen and Manuel Rosenstein, of counsel,) for appellant.
    David B. Carlson, of Chicago, for appellee.
   PER CURIAM.


text:
    William H. Loehde, Plaintiff-Appellee, v. Loyola University et al., Defendants-Appellants.
    (No. 57799;
    First District (3rd Division)
    May 3, 1973.

      Modified on denial of rehearing June 28,1973.

    James B. O’Shaughnessy and Elwood T. Olsen, both of Schiff, Hardin & Waite, of Chicago, for appellants.
    Lee M. Howard, of Howard, Howard, France & Mitchell, of Chicago, (Theodore S. Fins, of counsel,) for appellee.
   PER CURIAM.


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Emmett Perkins, Jr., Defendant-Appellant.
    (No. 56998;
    First District (4th Division)
    May 9, 1973.
    G. Michael Cooper, III, R. Eugene Pincham, and Charles B. Evins, all of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and James R. Carlson, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The defendant, Emmett Perkins, Jr., was indicted in two counts for aggravated battery. Following a bench trial in the circuit court of Cook County, the defendant was found guilty and sentenced to a term of not less than one nor more than three years in the Illinois State Penitentiary.

The issues presented for review are: (1) whether the defendant was proven guilty beyond a reasonable doubt; (2) whether the trial court abused its discretion in denying the defendant’s application for probation; and (3) whether the sentence imposed by the trial court was excessive.

On April 9, 1971, at approximately 9:30 P.M., the defendant, Emmett Perkins, Jr., and a friend entered a tavern known as Jimmy Mansfield’s Liquors at 6438 South Cottage Grove Avenue, Chicago. While in the tavern, the defendant telephoned his wife, Ruth, and asked her to join l him there. Mrs. Perkins arrived soon thereafter and took a seat at the bar next to the defendant.

Robert Lamb, who had been drinking at another tavern, entered Jimmy Mansfield’s Liquors at approximately 10:00 P.M. Lamb was acquainted with the defendant and his wife and joined them at the bar next to the defendant.

Robert Lamb, who had been drinking at another tavern, entered I Jimmy Mansfield’s Liquors at approximately 10:00 P.M. Lamb was I acquainted with the defendant and his wife and joined them at the bar when they bought him a drink. After joining the defendant and his wife, Lamb took a seat next to Mrs. Perkins on her left, as opposed to the defendant who was standing on her right.

A short while thereafter, the bartender, William Martin, testified he heard a disturbance at the end of the bar where the Perkinses and Lamb were sitting. As he approached the spot where the disturbance was taking place, he heard the defendant raise his voice and then observed the defendant shoot Robert Lamb in the chest.

Both the defendant and his wife testified that Lamb had made certain improper advances toward Mrs. Perkins while he was seated next to her. When the defendant asked Lamb to desist, an argument arose culminating in Lamb pulling a knife and lunging at the defendant, whereupon the defendant drew a pistol and shot Lamb in the chest.

Robert Lamb testified the defendant became angry and shot him solely for the reason that Lamb had his arm around Mrs. Perkins’ bar stool. In further testimony, Lamb admitted having a knife in his possession at the time of the incident; however, he denied pulling it on the defendant. The bartender, William Martin, also testified that he did not observe a knife in Lamb’s hand as he approached the spot where the incident occurred; however, he did state the defendant told him immediately after the occurrence that Lamb had pulled a knife on him.

On the day subsequent to the incident, the defendant turned himself in at the Chicago Police Department. Thereafter, he was indicted in two counts of aggravated battery. Following a bench trial in the Circuit Court of Cook County, the defendant was found guilty and sentenced to a term of not less than one nor more than three years in the Illinois State Penitentiary, from which sentence he appeals.

The first issue presented for review is whether the defendant was proven guilty beyond a reasonable doubt. The defendant contends there was sufficient evidence of self-defense submitted during the course of the trial to leave a reasonable doubt of his guilt in the mind of the trial court. In support of this contention the defendant refers to not only his testimony but also the testimony of his wife, wherein they each stated the defendant did not draw his gun and shoot Robert Lamb until after Lamb pulled a knife and lunged at the defendant. The defendant also refers to the direct testimony of the complaining witness, Lamb, wherein he admitted having a knife in his possession on the evening of the shooting but denied any attempt to use it. Finally, the defendant refers to a comment by the trial judge in his summation of the case, wherein he apparently expressed doubt as to the element of the complaining witness’ knife when he stated: “There is one thing in this case that bothers me. A complaining witness admitted on direct examination that he does own and on the evening in question did carry a knife.”

The law in Illinois is well settled that the burden of proof never shifts to the defendant. Moreover, where a defendant pleads self-defense, it is sufficient to acquit him if his evidence on self-defense, when taken with all the other evidence in the case, creates a reasonable doubt of his guilt. (People v. Williams, 56 Ill.App.2d 159 (1965).) In the instant case, the defendant raised the issue of self-defense when both he and his wife testified he drew his gun and shot Robert Lamb only because he reasonably believed such action was necessary to defend himself against Lamb’s knife. In view of this testimony, when considered in light of Robert Lamb’s testimony wherein he admitted having a knife in his possession at the time of the incident but denied attempting to use it, we find it necessary to agree with the defendant’s contention that the testimony as to his self-defense created, or should have created, a reasonable doubt of his guilt in the mind of the trial court. Since there was no positive testimony to the contrary, it appears the reasonable doubt as to the defendant’s guilt remains in existence. We, therefore, reverse the judgment of the trial court finding the defendant guilty of aggravated battery.

Since the first issue discussed herein is dispositive of this entire appeal, we find no reason to discuss the other issues raised.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is reversed.

Reversed.

BURMAN, P. J., and ADESKO, J., concur.