text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gerald A. Spera, Defendant-Appellant.
    (No. 72-55;
    Second District
    March 6, 1973.

      Robert F. Casey and George E. Krippner, both of Geneva, for appellant.
    William R. Ketcham, State’s Attorney, of Elgin, (W. Ben Morgan, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

The defendant was charged with possession of a stolen motor vehicle and under a separate indictment was charged with theft of a motor boat and boat trailer. The two indictments were consolidated for trial and the jury found the defendant guilty of theft of the boat and trailer, and guilty of possession of a stolen motor vehicle. Defendant applied for and was granted probation for a period of three years. He was ordered to make restitution as a condition of his probation. Defendant appeals.

On appeal he contends that he was improperly denied a preliminary hearing; that the court should not have instructed the jury on the presumption arising from unexplained possession of recently stolen property; that the court instructed the jury on theft in terms at variance with the indictments; that the instruction on the Ill. Rev. Stat. 1969, ch. 95%, sec. 4 — 103(a), charge erroneously failed to allege any mental state; and that the court erroneously gave a lengthy hung jury instruction, Federal Instruction 7.07, as part of the original series of instructions.

Defendant was arrested at Pottawatomie Park, St. Charles, Illinois, where he was loading the boat on a boat trailer, in turn attached to the motor vehicle. Investigation disclosed that the 1970 green Chevrolet was stolen from Rrigance Chevrolet in Oak Park, on May 4, 1970. The license plates on the trailer were also stolen and another set of stolen license plates were found in the trunk of the automobile. The boat and trailer were stolen on June 10, 1971, in Rolling Meadows. Otto Katek, the owner of the boat (a distinctive Turbo jet bright red fibre glass) in question, observed his stolen boat being driven down the Fox river. He, in turn, contacted the St. Charles police which culminated in the aforesaid arrest of the defendant and the recovery of the stolen boat, boat trailer, and stolen motor vehicle. It further appears that one of the identifying numbers on the boat itself had been altered.

We consider first the indictment and conviction for the possession of the stolen motor vehicle under Ill. Rev. Stat. 1969, ch. 95%, sec. 4 — 103 (a):

“It is a violation of this Chapter for:
(a) A person not entitled to the possession of a motor vehicle or other vehicle to receive, possess, conceal, sell or dispose of it, knowing it to have been stolen or converted; * *

The defendant upon his apprehension made a statement that he had borrowed the stolen car from “Chuck” and that “Chuck” had his car. The defendant himself did not testify, but his wife testified as to the possession of the car in question. The facts indicate that the car was stolen from the Rrigance Chevrolet agency in May, 1970. The defendant’s wife testified they obtained possession of the car from “Chuck” who ran a Shell filling station at the corner of Harlem and North Avenues in Oak Park. She testified that she had driven the car about twelve times and that her husband used it on occasion. The State produced “Chuck” Barkoozis who testified that he had run tire Shell station at this location for seven years, that he had never loaned the defendant the car in question, that he had never borrowed the defendant’s car, that he knew the defendant, and that the defendant had been in his station with a car subsequently identified as the stolen vehicle. Upon re-direct examination, Mrs. Spera testified that there were two “Chucks.” It can thus be seen that the testimony offered for the unexplained possession of the stolen motor vehicle is tenuous. The jury was more than amply justified in finding that the defendant was guilty of the possession of this motor vehicle under the above cited statutory provision.

Turning then to the second indictment which in fact was a theft indictment under Ill. Rev. Stat. 1969, ch. 38, sec. 16 — 1(a), the State contended at the trial that the defendant was charged with the theft of the boat and trailer. Instructions to that effect were given and the jury found him guilty. The boat and trailer were found in the possession of the defendant nine days after they had been stolen. The defendant also stated to the police at the time of his apprehension that he bought the boat and trailer from a fellow named “Chuck.” This is apparently a purported second “Chuck.” In his statement, the defendant stated that he met the second “Chuck” at Belmont Harbor who said he was a representative of Maypole Motors in Chicago. Subsequently, the defendant produced an alleged bill of sale from Maypole Motors date June 7th, 1971, covering an alleged sale of a super jet boat and reflected a purchase price of $6820. It is to be noted that the boat and trailer in question were stolen two days later on June 9,1971. The State produced the manager of Maypole Motors who testified that this bill of sale was never issued by Maypole Motors, and the name thereon was not an employee of then-company. It is also to be noted that the identifying numbers on the boat itself had been altered. Defendant testified he entered into a deal with “Chuck” to pay him $1500 and give him a Snowmobile for the boat and trailer. No other evidence of this purported transaction was forthcoming. The law in Illinois has long been that exclusive, and unexplained possession of recently stolen property is evidence of theft. In People v. Hayes (1971), 133 Ill.App.2d 885, 272 N.E.2d 423, the court stated that they had held in People v. Hyde (1968), 97 Ill.App.2d 43, 239 N.E.2d 466, that evidence, of recent, exclusive and unexplained possession of stolen goods is evidence of theft, and was sufficient to convict. They re-affirmed that case and held that under the circumstances present in Hayes the evidence was sufficient to support the jury verdict of guilty. In People v. Litberg (1952), 413 Ill. 132, 108 N.E.2d 468, the Supreme Court held that the trial judge in weighing the evidence was warranted in finding that the explanation of possession of the stolen property was unsatisfactory. Likewise, in People v. Reynolds (1963), 27 Ill.2d 518, the court held that the recent, exclusive and unexplained possession of stolen property by an accused, raises the inference of guilt which may justify a finding of guilty where the explanation was not satisfactory as to the possession of stolen property.

Defendant next contends that Sec. 7, Art. I, of the Illinois Constitution provides that he shall be afforded a preliminary hearing prior to indictment by the grand jury. The pertinent part of the constitutional provision reads as follows:

“No person shall be held to answer for a crime punishable by death or by imprisonment in the penitentiary unless either the initial charge has been brought by indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause.”

It is to be noted that this constitutional provision is in the alternative using the word “or.” It must be given its common accepted usage, i.e., a defendant may be charged by indictment “or” given a prompt preliminary hearing. In the case before us, defendant was indicted one day before the date of the preliminary hearing.

Defendant made no motion for preliminary hearing and since the instant charges were initiated by two complaints on June 20, 1971, we are of the opinion that the new Constitution which came into effect on July 1, 1971, would have no effect on proceedings already in motion. However, the Supreme Court has now ruled on this. In People v. Kent (1972), Docket No. 44864, the court held that the 1970 Constitution, Sec. 7 of Art. I, does not bar subsequent indictment by the grand jury where no probable cause was found in the preliminary hearing. In interpreting this constitutional provision the court stated:

“As we read the provision before us, it appears to be designed to insure that the existence of probable cause will be determined promptly either by a grand jury or by a judge.”

Defendant next contends that the court should not have instructed the jury on the presumption arising from unexplained possession of recently stolen property. In so doing, counsel infers that the defendant was charged with receiving stolen property, viz., the boat and trailer. That is not the case. The defendant was charged with theft of these items and that instruction as to recently stolen property was a proper instruction on this issue.

Defendant further contends that the court erred in giving State’s instruction No. 15 which stated that a person committed the offense of possession of a stolen motor vehicle when he was not entitled to it and has possession of it, knowing that it had been stolen. Counsel insists that this instruction should include a statement that defendant intended to permanently deprive the owner of the use or benefit of such vehicle. We do not pass on this contention, as State’s Instruction No. 16 specifically included such an item as a necessary element of proof. While the two instructions are somewhat inconsistent, the jury was instructed as to the elements of proof imposed upon the State. People v. Haynes (1971), 132 Ill.App.2d 1031, 270 N.E.2d 63, has been cited by defendant in support of this contention. That case is not applicable as the charge there was theft and the indictment here with relation to the motor vehicle was possession of a stolen motor vehicle, knowing that it has been stolen. Under the prior law of Illinois pertaining to receiving stolen property, it was not a necessary element of proof that the defendant intended to permanently deprive the owner of possession, nor in the act in question here (Ill. Rev. Stat. 1969, ch. 95½, sec. 4 — 103) is the permanent deprivation of possession from the owner a necessary element. The fact that the court stated that it was not to the disadvantage of the defendant, but resulted in an additional element of proof required of the State.

Defendant likewise objects to State’s Instruction No. 9 which defined the crime of theft and says that this instruction "does not cure the error of and is in conflict with State’s Instruction No. 15.” There is no conflict between the two instructions. No. 15 is applicable to the indictment for possession of a stolen motor vehicle and so states. Instruction No. 9 is applicable to the indictment for theft of the motor boat and trailer. Instruction No. 9 reads as follows:

"A person commits the crime of theft who knowingly obtains or exerts unauthorized control over property of the owner, and
(1) intends to deprive the owner permanently of the use or benefit of the property; or
(2) knowingly uses, conceals, or abandons the property in such manner as to deprive the owner permanently of its use or benefit; or
(3) uses, conceals, or abandons the property knowing that the owner will thereby probably be permanently deprived of its use or benefit.”

We find such an instruction containing the alternative provisions is proper. A person by his one act may intend to deprive the owner permanently of the use of his property, may do so by knowingly using, concealing the property, and may use and conceal the property knowing the owner may probably be deprived of its use or benefit.

Defendant’s last contention is that the trial court erred in giving Federal Instruction 7.07 commonly known as the “Allen” instruction, Allen v. United States (1896), 164 U.S. 492, 41 L.Ed. 528, 17 S.Ct. 154, as a part of the original instructions. This is commonly known as the hung jury instruction upon which there has been considerable discussion in both the federal and state courts. The Supreme Court of Illinois has recently ruled upon this instruction where it was given to a hung jury. People v. Prim (1972), 53 Ill.2d 62, 289 N.E.2d 601, has set forth guide lines for the giving of this identical instruction by the court as a part of the original instructions to the jury. In People v. Iverson (1973), 9 Ill.App.3d 706, 292 N.E.2d 908, we specifically held, where the evidence of defendant’s guilt was great, that the giving of this instruction as a part of the original series of instructions was not in error although we observed that it was not desirable. We adhere to that decision and find that in the instant case the evidence of defendant’s guilt was beyond a reasonable doubt, and that such instruction was not in fact prejudicial, under the circumstances of this case. We do not approve the giving of the instruction in any future case as part of the original charge or as a supplemental instruction except as directed in Prim. Cases tried after Prim will be governed by the directions of the Illinois Supreme Court to adhere to the American Bar Association’s Standard Relating to Trial By Jury, pages 145-156 (tentative draft May, 1968). The judgment of the trial court is affirmed.

Affirmed.

ABRAHAMSON and SEIDENFELD, JJ„ concur.


source: Caselaw Access Project

author: Mr. JUSTICE ALLOY

license: Public Domain

text:
    Mary Elizabeth Fisher, Admr. with Will Annexed of the Estate of Charles Fisher, Deceased, et al., Plaintiffs-Appellants, v. Robert Bogdanovic, Defendants-Appellees.
    (No. 71-157;
    Third District
    February 23, 1973.

      Knuppel, Grosboll, Becker & Tice, of Petersburg, (Eldon H. Becker, of counsel,) for appellants.
    Herbolsheimer & Lannon, of La Salle, and Giffin, Winning, Lindner, Newkirk & Cohen, of Springfield, (James Lannon, of counsel,) for appellees.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from a La Salle County judgment entered on a jury verdict in favor of defendants, Robert Bogdanovic and Wisconsin Wood Products, Inc., and against all plaintiffs, in an action for wrongful death of Charles Fisher and for personal injuries resulting to other plaintiffs from a car-truck collision.

The car-truck collision occurred shortly after 4:30 A.M. on July 11, 1966, on U.S. Route 51 at its intersection with Dimmick Road in La Salle County, Illinois. Defendant Robert Bogdanovic was the driver of a truck owned by co-defendant Wisconsin Wood Products, Inc. While the truck was being driven in a southerly direction upon Route 51, an electrical problem apparently occurred which caused failure of the truck’s headlights. The truck subsequently lost all power and became entirely inoperative. Bogdanovic and Jim Peterson (who rode in the truck with Bogdanovic and shared the driving duties), testified at the trial that as soon as the truck lights went out, they began looking for a place to pull off the road. When all power failed, the search for a safe place to pull off the road continued, but they stated they could not find a safe place to pull off the road and ultimately the truck coasted to a stop on the highway.

There was evidence from Bogdanovic and Peterson that after the truck was brought to a stop on the highway, reflectors and lighted flares were put out to warn oncoming traffic of the presence of the disabled vehicle on the highway. There is some conflict in the testimony regarding the flares, since investigating officer Yerly of the Illinois State Police testified that he did not see them when he arrived to aid the disabled vehicle. The officer said, however, that, after his arrival, flares were positioned on the highway. The officer’s car was parked near the disabled vehicle with his headlights on dim and his automatic flashers turned on with a rotating red light. The officer directed traffic with his flashlight. He noticed the automobile in which plaintiffs rode when it was approximately one-half mile from the disabled truck. Although he signaled the automobile, it did not decrease its speed and ultimately it collided with the rear of the truck.

The plaintiffs charged that the defendant Bogdanovic could have pulled the truck off the road but failed to do so. Plaintiffs, however, did not direct us to anything in the record which established the existence of a safe area on to which the truck could have been driven. Plaintiffs likewise argue in their brief that no flares had been placed at the scene of the accident. It is also contended that defendant Bogdanovic could have had the truck pulled off the road by farm machinery at a nearby farm. There is nothing in the record, however, to establish that this was possible. Plaintiffs also charged without any specific support in the record that the battery terminals on the truck were not properly maintained. Defendants, on the contrary, directed the court to testimony regarding a maintenance schedule to which the truck was subjected and which would tend to establish that all equipment on the truck was tested on a regular basis.

Plaintiffs first contend that a verdict should have been directed for the non-driving plaintiffs who were injured in the accident. This is based upon the principles set forth in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494. In that case the Supreme Court established the rule in Illinois that verdicts should be directed “only in those cases in which all the evidence when viewed in its aspects most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” On the basis of the evidence in the record, it is apparent that no verdict could be directed in favor of plaintiffs since the record clearly shows that there was a conflict of evidence as to whether defendants were negligent and the issue was clearly one for determination by the jury. As a consequence, we believe that the trial court correctly denied the motion for directed verdict.

Plaintiffs next assert that the jury was improperly instructed when it was told that defendants were sued as principal and agent and that if the jury found in favor of the agent it would be required to do the same for the principal. It is argued that independent negligence was shown on part of the principal. Independent negligence on the part of the principal was not, however, shown in the record. Instructions should conform to the theory of the case as shown by tire pleadings. In the pleadings, negligence was charged as to Bogdanovic in each instance. We, therefore, find no reversible error in the giving of the instruction in view of the pleadings and the record in this cause.

In a related contention, plaintiffs assert that the trial court was in error when it refused to allow plaintiffs to amend their complaint at the close of defendants’ case. Whether a pleading may be amended after commencement of a trial is within the sound discretion of the trial court and a reviewing court may not reverse the trial court’s decision ‘unless there has been a manifest abuse of discretion.” (Winnebago v. Cannell, 376 Ill. 277.) The case of Sidwell v. Sidwell, 75 Ill.App.2d 133, 220 N.E.2d 479, illustrates what may constitute an abuse of such discretion. In that case, plaintiff unsuccessfully sought to amend her complaint after the commencement of the trial. On appeal, the Appellate Court observed that the trial court, as a matter of discretion, may or may not permit amendment, and in the absence of a showing of abuse of discretion, the lower court’s ruling must not be disturbed. The reviewing court found in that case that the lower court had denied plaintiff’s motion on the ground that a separate maintenance and divorce could not be joined in the same lawsuit. That was clearly a misapprehension of law on the part of the trial court, and the Appellate Court consequently held that the trial court had abused its discretion in denying plaintiff’s motion to amend her complaint. There was no such misapprehension of law or abuse of discretion in the case at bar. The record shows no evidence of independent negligence on the part of the defendant-employer. The proposed amendment actually may have been considered repetitious by the trial court in view of other allegations in the complaint. Under the circumstances, we do not believe we would be justified in concluding that the trial court abused its discretion in denying plaintiffs’ request to amend at the close of the evidence. We find no reversible error in such procedure.

It is also contended that in the course of the trial, defendants’ attorney employed tactics which plaintiffs contend were so prejudicial that a reversal is required. In one instance during the opening statement by counsel, defendants’ counsel commented to the jury that Trooper Yerly had been dismissed out of the suit as a party defendant by the plaintiffs. Plaintiffs suggest that counsel thereby implied that the dismissal of the suit against Trooper Yerly was in return for favorable testimony. The statement may have been unnecessarily repetitious since plaintiffs’ counsel had previously told the jury that Trooper Yerly had been dismissed from the case. It can hardly be contended, however, that defendants’ counsel implied some sort of collusion between plaintiffs and the officer in question. There is nothing in the record which justifies such conclusion. Consequently, we find no reversible error in such comment.

Plaintiffs also contend that they were prejudiced when defendants’ counsel attempted to impeach Mr. Babington, one of the passengers in plaintiffs’ automobile, by referring to his pleading in a lawsuit arising out of the same facts as the instant case against the estate of Charles Fisher, the driver of the automobile. Mr. Babington alleged in that case that Mr. Fisher had driven in a willful and wanton manner. In the instant case he did not testify to any willful and wanton conduct but rather stated that he could remember nothing. The trial court sustained plaintiffs’ objection to the cross-examination regarding the pleadings in the other lawsuit and instructed the jury to disregard it. Since the objection of plaintiffs was sustained and the jury was instructed to disregard the defense efforts at impeachment, it is obvious that plaintiffs were not in any manner prejudiced but in fact may have been aided by the exclusion of that which may have been admissible for impeachment purposes.

The final contention is made by plaintiffs to the effect that defendants’ counsel improperly conducted himself when in his closing argument he mentioned to the jury that an apparently available witness had not been called by plaintiffs. It does not appear that either party tendered the pattern jury instruction advising the jurors of the circumstances under which they may infer that the testimony of an uncalled witness would be adverse to thé party charged with failing to call such witness (I.P.I.2d Instructions 5.01). Plaintiffs’ counsel could easily have brought out, during his argument to the jury, that the witness was equally available to his adversary, and, he could have required that the jury be specifically instructed on that point. Under the circumstances, therefore, we find no error which would justify reversal based on such contention relating to the reference to the uncalled witness.

Since we find no reversible error in the record, the judgment of the circuit court of La Salle County is affirmed.

Judgment affirmed.

STOUDER, P. J., and SCOTT, J., concur.


author: Mr. JUSTICE SMITH

text:
    James R. Fitzpatrick, Exr. of the Last Will and Testament of Florence C. Fitzpatrick, Deceased, Plaintiff-Appellant, v. The City of Springfield, Defendant-Appellee.
    (No. 11770;
    Fourth District
    March 7, 1973.

      Duane L. Traynor, of Traynor & Hendricks, of Springfield, for appellant.
    Robert C. Walbaum, of Springfield, for appellee.
   Mr. JUSTICE SMITH

delivered the opinion of the court:

The circuit court of Sangamon County held that the Administrative Review Act (Ill. Rev. Stat. 1969, ch. 110, par. 265, et seq.), was not available to review the refusal by the City of Springfield of plaintiff’s petition to grant conditional permitted uses to operate a Lincoln Era Wax Museum and Gift Shop in the Lincoln Home area and to waive all set-back, side-yard, rear-yard and off-street parking requirements. After appropriate hearings before the Zoning Hoard of Appeals and the Historical Sites Commission, the City Council followed the respective recommendations of such agencies and denied the petitions. Plaintiff filed a four-count suit. Counts II, III and IV seek relief by way of declaratory judgment. The city has answered and these three counts are at issue and reposing in the trial court. Count I sought relief by way of administrative review. In a carefully considered opinion, the trial court dismissed Count I on the motion of the city and entered judgment. Such dismissal was based on the conclusion that the action of the City Council was legislative and not administrative, and thus no appeal under the Administrative Review Act would lie. The court likewise found that no just reason existed for delaying the appeal and it was taken directly to the Supreme Court. That court transferred it to us for decision.

The narrow issue before us is whether the action of the City Council was administrative in law or in fact and thus reviewable under the Administrative Review Act, or whether it is legislative and not subject to such review under that Act. For the factual background of the litigation, reference is made to our opinions in Rebman v. City of Springfield, 111 Ill.App.2d 430, 250 N.E.2d 282, and M & N Enterprises, Inc. v. City of Springfield, 111 Ill.App.2d 444, 250 N.E.2d 289. On August 18, 1971, the 92nd Congress of the United States authorized the Secretary of the Interior to establish the Lincoln Home a national historic site. (Public Law 92-127.) And it has been so established.

In Count 1, the plaintiff charges that the statutory under-pinnings for the actions taken by the city (Ill. Rev. Stat. 1969, ch. 24, pars. 11 — 13—4 and 5), are unconstitutional in authorizing a city of less than 500,000 population to reserve to itself the right to pass on zoning variations, while in municipalities of over 500,000 population zoning variations are for a board of appeals whose actions are made final by the statute and subject to administrative review. Secondly, these paragraphs are unconstitutional because par. 11 — 13—5 permits municipalities of less than 500,000 population the right by its own legislative fiat to determine whether it will reserve to itself the right to determine variations and conditional uses, while another municipality in the same population category may, if it cares to do so, make zoning variations by action of the Board of Appeals final and thus make available to their citizens a review of such action under the Administrative Review Act. Lastly it is asserted that the act of the City Council in declaring their approval or disapproval of conditional uses and variances makes the City Council the final arbiter of the matter and converts this legislative body into an administrative body within the purview of the Administrative Review Act.

We turn our attention first to the last proposition. If we accept the conclusion that the action of the City Council is administrative rather than legislative, then the constitutional questions fade into insignificance.

The plaintiff relies heavily on Appeal of Clements, Court of Appeals of Ohio, 2 Ohio App.2d 201, 207 N.S.2d 573, where under basically similar situations the Ohio court held that the passage of an ordinance granting a variance was administrative rather than legislative and therefore was subject to judicial review. The principal thrust of that decision is the determination that where the City Council reserves to itself the final determination of whether a conditional use or variance should be allowed, it sets itself up as the final municipal arbiter as to whether such variance in the application of a zoning ordinance is or is not to be granted to a particular property; that the City Council is then not functioning as a legislative body, but as a “quasi-judicial body for that purpose, and is thereby performing strictly an administrative function”. The same position was taken in the special concurring opinion in Ward v. Village of Skokie, 26 Ill.2d 415, 186 N.E.2d 529. It was urged that the granting of a particular use or a variance as to a particular property is a single decision on a concrete set of facts affecting only the particular property and the particular party. Thus, it is riot an act legislating for everybody in the same class, but a special determination covering a one-time shot only, and thus administrative.

In his brief the plaintiff urges the adoption of the rule enunciated in the Ohio opinion and in the special concurring opinion in Ward. The plaintiff suggests that Illinois should now align itself with those States holding that the act of the City Council here is administrative rather than legislative. The difficulty is that plaintiff seeks total waiver of set-back and parking restrictions while the ordinance limits such reduction to 10%. A new ordinance is required and the views expressed in the special concurrence in Ward do not apply. In Artz v. Commercial National Bank of Peoria, 125 Ill.App.2d 86, 259 N.E.2d 813, our colleagues on the Third District squarely held that the Administrative Review Act is the wrong remedy to review the action of the City Council of Peoria, in passing an ordinance granting a special use. In that instance, the City Council did not follow the recommendations of the City Planning .and Zoning Commission of Peoria. It was observed in that opinion at p. 87: “The Administrative Review Act was created and designed to provide a means and a procedure for judicial review of administrative decisions of administrative agencies. The Act does not provide for judicial review of legislative acts of legislative bodies. While legislative acts can be reached in an appropriate case, e.g., through proceedings for declaratory judgment, such remedy and declaration was not sought in this case. Thus, it is neither for the trial court nor this court to pass on the merits of the allegations of the Plaintiffs-Appellants that might have been raised in a different proceeding”.. The constitutional questions here presented were not considered, in Artz.

We are not persuaded that the challenged sections of the statute and the Springfield zoning ordinances adopted thereunder violate Art. IV, sec. 2, of the Illinois Constitution of 1970 which prohibits class legislation nor is it a denial to the citizens of Springfield of either due process or equal protection of the law. As stated in City of Danville v. Industrial Com., 38 Ill.2d 479, 231 N.E.2d 404, the presumption prevails that the General Assembly acted conscientiously in the passage of a particular statute and the courts will not interfere with its judgment unless it can be seen that the classification is clearly unreasonable and palpably arbitrary and all reasonable doubts are.to .be resolved in favor of upholding the validity of the statute; (Latham v. Board of Education, 31 Ill.2d 178, 201 N.E.2d 111.) It surely requires no citation of authority to judicially notice that the statutory enactments are legion which are based upon classifications grounded upon population and such a statute is not per se a special or local law. They are founded on a rational difference of situation or condition existing in the persons or object upon which it rests and the purposes to be accomplished. (Du Bois v. Gibbons, 2 Ill.2d 392, 118 N.E.2d 295.) Nor is it per se unconstitutional to permit the governing body of a municipality to make a determination for itself whether certain statutes apply within the confines of that municipality. (City of Danville v. Industrial Com., 38 Ill.2d 479, 231 N.E.2d 404.) In that case, the Supreme Court held that an act permitting a city to determine by designating the police officers as officials and thus excluding them from the operation of the Workmen’s Compensation Act did not create an unreasonable classification by the division of policemen into two classes and did not violate Art. IV, sec. 22, of the 1870 Illinois Constitution. It flies into the face of reality to say that on the question of variations and special uses, the time required and the problems presented in the city of Chicago is time-wise, number-wise and otherwise no different from those that exist in smaller communities. There is therefore a sound basis for making the decision of a Zoning Board of Appeals final and subject to administrative review in the city of Chicago and to permit downstate cities to determine for themselves whether the action of the Zoning Board of Appeals is final and appealable under the Administrative Review Act or whether it is only a recommendation to the City Council. As noted in Artz, the recommendation of the Zoning Board of Appeals in Peoria was not followed and there was no administrative review. In Rebman, we noted that under the Springfield ordinance, the action of the Zoning Board of Appeals and the Historical Sites Commission was advisory. Indeed the power exercised by the City Council authorizing the preservation of historical and other special areas may in truth establish a basis for differentiation between the powers exercised under that Act and those under the general zoning statute. A careful reading of Ill. Rev. Stat. 1969, ch. 24, pars. 11 — 48.2—3 and 4 suggests that the city may create an administrative agency or may itself perform the powers conferred upon it by the statute. Paragraph 11 — 48.2—4 suggests that no action taken by the municipality may be without due notice and an opportunity to be heard at a public hearing and “if such action is taken by administrative decision as defined in Section 1 of the ‘Administrative Review Act’, * * * it shall be subject to judicial review * * This paragraph when read in connection with the preceding paragraph definitely implies that when the administration of the Act is conducted by the City Council there is no review under the Administrative Review Act, but it is only when the municipality transfers to some administrative agency the authority to administer the Act as to historical sites that there is an administrative review. There is sound basis for considering the historical site classification as a single entity and a reasonable classification and it is recognized both in the statute and in the Springfield ordinance. Section 49.9.24 of the Springfield ordinance states that “The Historical Sites Commission may recommend and the council may impose appropriate conditions and safeguards designed to assure that the use will be conducted in a manner compatible with the historic heritage of the area”. In addition, the Declaratory Judgment Act provides for judicial review and thus there is no denial either of equal protection of the law or of due process. The plaintiff will have his day in court under the three counts remaining in the circuit court and the judgment of the trial court in denying administrative review on Count I should be and it is hereby affirmed.

Judgment affirmed.

TRAPP, P. J., and SIMKINS, J„ concur.


author: Mr. JUSTICE SIMKINS

text:
    Windsor Development Co., Inc., Plaintiff-Appellee, v. Mort A. Segal et al., Defendants-Appellants.
    (No. 11825;
    Fourth District
    March 7, 1973.

      Donald M. Tennant, of Champaign, for appellants.
    Robert N. Corley, of Urbana, for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

On July 16, 1971, Plaintiff-Appellee, Windsor Development Co. Inc., filed its Complaint and Confession on Judgment Note based upon a note payable to Bash and Lambert, Inc. The note was signed by Mort A. Segall, the appellant, and Nancy R. Segall who does not join in this appeal. On the same day judgment in the sum of $2,891.22 was entered by confession against appellant and against Nancy R. Segall. On September 22, 1971, the appellant filed a motion on behalf of himself only, to open the judgment and tendered an Answer to the Complaint. The only ground urged in the Motion was that the appellant was not indebted to the plaintiff and that the note upon which the judgment was based “shows on its face" that he was not so indebted. The tendered Answer denied that plaintiff owned the note in question, that the note was executed in Champaign County, or that a defendant resided in that County, or that real or personal property owned by a defendant was located in Champaign County. This initial Motion to Open was filed by appellant pro se and the pleading reveals that he is an attorney with an office address in Champaign, Illinois. It also appears that the note in question was secured by a second mortgage on premises owned by appellant and located in Champaign, Illinois.

On October 4, 1971, the plaintiff filed objections to appellant’s Motion to Open. It pointed out that defendant’s motion did not deny that he had executed and delivered the note in question nor that he owed the amount of $2,038.02 on principal and $467.64 in interest on the note, and in support of its allegation of ownership of the note stated it had acquired the note by assignment from the original payee. The affidavit also set forth that the assignment had been made on March 30, 1967, for full consideration and that appellant had been informed, on several occasions by means of statements and by other means, that the assignment had been made. The pleading also stated that appellant was in possession of this information at the time he filed his Motion to Open.

On November 23,1971, an entry of appearance of counsel for appellant was filed and on the following day, November 24, 1971, a second entry of appearance, by the same attorney, was filed. On the same day the court set the Motion to Open for hearing on November 29, 1971, at 9:30 A.M. On November 29, 1971, plaintiff’s counsel appeared, the appellant did not appear nor did his attorney. There is no contention that appellant and his counsel were unaware of the Court’s order setting the motion. The Court’s ruling, on November 29th, was * * this cause coming on for hearing on motion of Defendants for leave to open judgment and for leave to file answer to Complaint, and objections thereto, upon consideration thereof, said motion is by the Court denied.”

On December 2, 1971, appellant filed a Motion fdr Leave to File First Amended Motion to Open Judgment and For Leave to File Answer to Complaint and Third Party Complaint, to which motion was appended an answer and Third Party Complaint. It would unduly prolong this opinion to detail the “First Amended Motion to Open Judgment” and the pleadings attached. In essence appellant alleged that the original payee on the note in question, Bash and Lambert, Inc., had, in 1964, agreed to sell him a lot and, apparently, to complete construction of a residence thereon. He admitted execution and delivery of the note in question in payment of the balance of the purchase price but argues that the construction of the house was improperly done in many details and that as a result he sustained damages in excess of the amount due on the note in question. The Third-Party Complaint tendered was directed against Bash and Lambert, Inc., and sought damages allegedly resulting from the improper construction.

On December 6, 1971, the Court set this latter motion for hearing and on January 6, 1972, entered an order finding that the Motion was not diligently filed as required by Supreme Court Rule 276, found that the matters in the Amended Motion should have been presented in the original motion and further finding that the original motion is res judicata as to matters contained therein or which could have been so contained. The trial judge then denied the amended motion to open and noted that this ruling in no way affected appellant’s right to bring his suit against Bash and Lambert, Inc.

The order appealed from is the order entered January 6, 1972. No appeal is, or was, taken from the order of November 29, 1971, denying appellant’s original motion to open.

Appellee argues that the First Amended Motion to Open and the Answer and Third Party Complaint do not establish a defense to the note, but rather constitute set offs or counterclaims which can be pleaded only after the judgment is opened and in support of this contention cites Supreme Court Rule 276 and the historical and practice notes appended thereto in the Annotated Statutes. Both appellee and appellant argue the res judicata issue. We dispose of the case on another ground, urged by appellee, and therefore perceive no purpose in discussing these conten-' tions.

The trial judge found lack of diligence on the part of appellant, and with this we agree. The Rule requires, as a prerequisite to the opening of a judgment, that the defendant establish that “* * * he has been diligent in presenting his motion to open the judgment, * * The original Motion to Open is totally devoid of any showing of diligence. It was filed more than two months after the entry of judgment. There was no statement either in that motion nor in the supporting affidavit to the effect that appellant had only recently become aware of the judgment prior to filing the motion, no allegation that he had been lulled into sitting on his rights by any act of the plaintiff nor was there any appeal from the court’s order of November 29, 1971, nor any motion to vacate the order. The First Amended Motion was filed some four months after the judgment was entered and sought to “amend” a motion previously denied. As was true of the original motion and affidavit there is not one shred of evidence to support a finding of diligence on the part of appellant. In the absence of such an affirmative showing, the lapse of time in itself is indicative of lack of diligence and supports the judgment of the Corut. Wolfe v. Endres, 113 Ill.App.2d 96, 251 N.E.2d 740; Weitendorf v. Setina, 57 Ill.App.2d 253, 205 N.E.2d 806.

A motion to open up a judgment by confession is addressed to the sound discretion of the court and its order thereon will be reversed only for an abuse of such discretion. (First National Bank of Elgin v. Husted, 57 Ill.App.2d 227, 205 N.E.2d 780; Pirie v. Carroll, 28 Ill.App.2d 181, 171 N.E.2d 99.) We find no abuse of discretion in the refusal of the trial court to open the judgment on appellant’s First Amended Motion to Open and the judgment is therefore affirmed.

Judgment affirmed.

CRAVEN, P. J., and SMITH, J„ concur.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Truman Kinsley, Defendant-Appellant.
    (No. 72-25;
    Fifth District
    February 26, 1973.

      Kenneth L. Jones, of Defender Project, of Mt. Vernon, (Robert E. Farrell, and Michael A. Schmitt, Senior Law Student, of counsel,) for appellant.
    Roland W. Griffith, Jr., of Edwardsville, (James Jerz and Betty Campbell Wolf, both of Model District State’s Attorneys Office, of counsel,) for the People.
   PER CURIAM:

Appellant Truman Kinsley was indicted in Madison County for the attempted murder of his wife. He was found competent to stand trial and had counsel appointed to represent him. Appellant and his counsel appeared at arraignment, at which time appellant expressed his desire to plead guilty pursuant to a negotiated plea agreement. After a discussion between the judge and appellant which will be considered below, the judge accepted the plea and ordered a pre-sentence investigation. Pursuant to the plea agreement, appellant waived his right to apply for probation and his right to a hearing in aggravation and mitigation. The trial judge, after considering a lengthy pre-sentence report, sentenced appellant to one to fifteen years in prison, in accordance with the plea agreement. This appeal is based entirely on alleged noncompliance with the requirements of Supreme Court Rule 402.

Appellant first claims that the trial judge did not adequately determine that the guilty plea was made voluntarily and understandingly. Appellant cites several portions of the trial record which purport to show his confusion about the nature of the proceedings and a lack of certainty about his course of action. These passages, too numerous and lengthy to set out here, dealt with appellant’s understanding of the words “parole,” “probation,” and “mitigation and aggravation,” and appellant’s understanding of the range of sentences available to the judge. The judge stopped to explain each of these terms to appellant as well as carefully explaining to appellant his right to jury trial, confrontation of witnesses, presentation of evidence, his right to have State prove his guilt beyond a reasonable doubt, and the presumption of his innocence. The judge explained the minimum and maximum sentences for the offense and that he was not necessarily bound by the plea agreement. Repeated opportunities to withdraw his plea were offered to the appellant, and the judge offered to continue the case to give appellant more time to consider his course of action. It is clear from the record that appellant carefully considered the judge’s statements and the advice of his attorney. The purpose of Rule 402 is to provide a criminal defendant with adequate knowledge of his rights and options under the law before his plea is accepted. The appellant here received the full benefit of the rule and insisted on pleading guilty.

Appellant further contends that the plea was not voluntary because he was not adequately represented by counsel. The tr ial judge asked appellant if he felt he had been adequately represented and advised by counsel. Appellant answered “I don’t know” and stated that he thought his attorney had “done his best.” There was apparently some difference of opinion between appellant and his counsel over the advisability and likely success of a defense of insanity. Appellant claims that counsel misconceived the nature of the insanity defense and the distinctions between the requirements for competence to stand trial and sanity necessary to establish culpability for a criminal offense. However, the record does not bear out this claim. Counsel stated at the hearing that he had advised appellant not to plead insanity and that he had been found competent to stand trial. Nowhere is it stated, nor does appellant claim, that counsel’s advice was based solely on the results of the competency hearing. Rather, it seems that competent and seasoned counsel made recommendations to his client after having considered all the facts in the case and having employed his judgment and experience to weigh the alternatives. The burden of establishing incompetency of counsel is on the defendant and mere differences in trial tactics between attorneys do not establish incompetency. (People v. Caise, 38 Ill.2d 486, 231 N.E.2d 596; People v. Washington, 41 Ill.2d 16, 241 N.E.2d 425). Appellant’s other statements about his satisfaction with counsel reflect a general ignorance of the function and worth of defense attorneys and not a justifiable lack of faith in his appointed counsel. We conclude, therefore, no showing of incompetency of counsel has been made.

Appellant also claims that the trial judge did not determine that a factual basis existed for the plea as required by Rule 402(c). When appellant was asked by the judge if he had in fact shot his wife, he answered “I must have * * * [pjeople said I did. I had the gun, and she said, ‘Oh my God, I am dying’.” Shortly after this, the judge stated that he would consider all the facts submitted to him in determining sentence. Included in the record are several police reports and statements of witnesses. There is a long and comprehensive pre-sentence report which includes a lengthy statement by the appellant which admits many of the facts of the offense. This court has held that the judge may use any portion of the record to find a factual basis for the plea (People v. Dugan, 4 Ill.App.3d 45, 280 N.E.2d 239), and the Appellate Court for the Second District has held that a factual basis may be found from facts brought out at the hearing in aggravation and mitigation although the plea has already been accepted. (People v. Warship, 6 Ill.App.3d 461, 285 N.E.2d 224.) The trial court’s determination that a factual basis existed for the guilty plea was made in substantial compliance with Rule 402(c).

It is clear that the requirements of Rule 402 were complied with and that the plea was properly accepted.

Affirmed.


author: Mr. PRESIDING JUSTICE EBERSPACHER Mr. JUSTICE GEORGE J. MORAN

text:
    James Flener, Plaintiff-Appellant, v. Brewster Motors, Inc. et al., Defendants-Appellees.
    (No. 70-52;
    Fifth District
    February 28, 1973.

      G. MORAN, J., dissenting.
    Harris & Lambert, of Marion, for appellant.
    August L. Fowler, of Fowler & Novick, for Marion, for appellees.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

Plaintiff appeals from an order of the trial court of Williamson County allowing defendant’s post-trial motion for judgment in favor of defendant after the jury to which the case has been submitted failed to agree. The case was tried on two counts of the complaint, both of which were based on ordinary negligence and both of which alleged that plaintiff was in the exercise of due care and caution for his own safety and that of his property.

Defendant’s decedent, who will hereafter be referred to as “defendant”, the driver of the car which struck the rear end of plaintiff’s car, died sometime after the collision, but not as a result of it, and before trial. Plaintiff was barred from testifying to anything prior to the death of defendant. .(Ill. Rev. Stat, ch. 51, par. 2.) Other than the plaintiff, the only witness to the actual incident was the owner of and passenger in the car driven by defendant.

Plaintiff called as his own witness the passenger-owner, who testified that she and defendant were driving in a southerly direction toward Herrin, Illinois. As they were driving along, defendant was looking down and listening for some noise in the back end of her car. As they were driving, they were talking, and she looked up and saw the tail lights of plaintiff’s car about a block in front of them. She thought the car was moving, but she did not know how fast. When she looked up again, she saw that plaintiff’s car was stopped, and she said, “Jimmy, look out. That car stopped.” Defendant, who was still looking down at that time, hit for the brake, but her car struck the rear of plaintiff’s car. They were traveling about thirty miles per hour and were two or three car lengths behind plaintiff’s car at this time. She then identified a photograph looking south on Park Street which showed three sets of railroad tracks with a railroad warning sign facing southbound traffic. The crossbuck sign read “Railroad Crossing”. Just beneath that sign appeared the words, “3 Tracks”. Just under that sign were two red flasher lights and under these lights appeared the language, “Stop On Red Signal”. She marked the third southernmost track as the place of the accident, but later said she was not sure whether the accident happened on the second or third set of tracks.

She further testified that there were no brake lights or signal lights on the plaintiff’s car when she first saw it, and there were no brake lights or stop lights exhibited at the time of the collision.

Defendant contends in response to the plaintiff’s appeal that plaintiff failed to prove that he exercised proper care for his own safety and therefore the trial court properly allowed defendant’s post-trial motion and entered judgment in favor of the defendant. We agree.

There is no showing of plaintiff having given any signal that he was going to stop; no showing of any reason why he stopped; no showing of precaution in looking in the rear view mirror, or that the car was so equipped; no showing that a traffic condition such as to justify a stop on the highway existed; and no showing of careful habit evidence on the part of plaintiff. In fact, we find no evidence tending to prove due care by the plaintiff.

As stated in Overman v. Illinois Central R.R. Co., 34 Ill.App.2d 30, 180 N.E.2d 213:

“A motion for directed verdict should be allowed if * * * there is a total failure to prove one or more essential elements of the case * * * here, the element of due care by the decedent. The same rule is applicable in passing upon a motion for judgment notwithstanding the verdict * * *. There must be some evidence tending to prove due care by the decedent. The burden is on the plaintiff. Due care cannot be presumed from the mere fact of the happening of an accident and a consideration of the human instinct of self-preservation. Liability cannot rest upon imagination, speculation or conjecture, nor upon a choice between two views, equally compatible with the evidence, but must be based upon facts established by evidence fairly tending to prove them. If the record is without evidence of due care by the decedent, the decedent was necessarily guilty of contributory negligence as a matter of law, and the court should instruct the jury to render a verdict for the defendant. [Citation.]”

Plaintiff cites numerous authorities to the effect that whether a plaintiff was guilty of contributory negligence which was a proximate cause, is a question for determination by the jury, and contends that plaintiff’s conduct as shown by the evidence presented was not so clearly and palpably negligent that all reasonable minds would agree that he did not exercise that degree of care and caution which reasonable, ordinary and prudent persons would exercise under the same circumstances. The question here however, is not whether all reasonable minds would conclude that plaintiff was guilty of contributory negligence, but whether there was a sufficient showing of due care on his part or a freedom from contributory negligence on his part. The burden of proof to so show was on plaintiff and it has not been met. Plaintiff contends that our holding in Smith v. Stopher, 125 Ill.App.2d 378, 261 N.E.2d 16, dictates a reversal of the case at bar. In that case the jury resolved the facts in favor of the ten-year-old plaintiff. Our disposition of the question of whether there was sufficient evidence of freedom from contributory negligence-of the plaintiff was disposed of in the next to last paragraph of the opinion (125 Ill.App.2d 387, 261 N.E.2d 20) and was obviously based on the age of the plaintiff. We do not consider our holding in Smith here applicable. Here there is no evidence from which it can be inferred that plaintiff was properly or justifiably stopped on railroad tracks in the proper lane of traffic.

It is further contended by the plaintiff that the court erred in striking certain testimony. We note that this issue was not raised in the plaintiff’s post-trial motion, and is accordingly precluded from urging it for the first time on appeal. Chap. 110, Sec. 68.1(2), Ill. Rev. Stat.; Johnson v. Princeville Comm. H. S. Dist. 206, 65 Ill.App.2d 487, 212 N.E.2d 755.

For the foregoing reasons the judgment of the Circuit. Court of Williamson County is affirmed.

Judgment affirmed.

CREES, J., concurs.

Mr. JUSTICE GEORGE J. MORAN

dissenting:

In my opinion the majority adopts an improper standard in upholding the trial court’s action in granting the defendants’ post-trial motion. Prior to the decision of our Supreme Court in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, the courts of review of this state had in various opinions stated what was then the general rule that when there is any evidence which taken with its reasonable inferences in its aspects most favorable to the plaintiff, tends to show use of due care, the question of due care is for a jury, but whether there is any such evidence is a question of law for the court. “Whether there be any evidence is a question for the judge. Whether sufficient evidence, is for the jury.” In a lengthy opinion, the court in Pedrick stated at 503:

“Even though we have not intended to establish two separate rules, the language accompanying the statement of the rules lends credence to a notion that one standard has been established whereby trial courts decide whether to direct verdicts and by which these decisions are reviewed, and another has been established whereby reviewing courts decide when negligence and contributory negligence become questions of law. This notion results from the fact that the any-evidence standard has always been stated in relation to the direction of verdicts, while, in contradiction to this, no case has been found since Briske v. Village of Burnham, 379 Ill. 193, in which we said that the reasonable-man test should be applied for this purpose (cf. Seeds), the latter standard having consistently been stated as determining the circumstances under which negligence or contributory negligence becomes a question of law. Logic demands that one rule govern both the direction of verdicts and determination of the presence or absence of negligence or contributory negligence as a matter of law, for in both situations the issue is whether a court or the jury should decide the negligence issue.” (Emphasis added.)

The court then went on to state that the rule in all cases in the future would be that verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence when viewed in its aspect most favorable to the opponent so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.

Viewed in its aspect most favorable to the plaintiff, the evidence discloses that on the night in question plaintiff had been stopped for some time in his own lane of traffic, with his lights on, at a railroad crossing, when he was struck in the rear by a car driven by the defendant. The jury, in my opinion, could reasonably infer that plaintiff was stopped where one might reasonably expect people to stop to either let a train go by or to look for a train that might be coming. The jury might have also inferred that plaintiff was being extra cautious in stopping at this time and place even if he did not see the light of a train or hear the blow of a whistle. Many drivers who are extra cautious stop at all railroad crossings, especially at night. Some commercial vehicles such as buses are ordered to stop at all railroad crossings regardless of flasher lights or any other warnings. In my opinion, when all the evidence is viewed in its aspect most favorable to the plaintiff on the issue of his contributory negligence, the evidence does not so overwhelmingly favor defendant that no contrary verdict based on that evidence could ever stand.

In Blumb v. Getz, 366 Ill. 273, our Supreme Court said at 277:

“* * * The question of contributory negligence is one which is preeminently a fact for the consideration of a jury. It can not be defined in exact terms and unless it can be said that the action of a person is clearly and palpably negligent, it is not within the province of the court to substitute its judgment for that of a jury which is provided for the purpose of deciding this as well as the other questions in the case.’’

However, assuming that appellant’s unexplained stopping of his car at the time and place in question was a negligent act, it is still a question of fact whether this act was the proximate cause of his own injuries. “Questions of negligence, due care and proximate cause are ordinarily questions of fact for a jury to decide.” Ney v. Yellow Cab Co., 2 Ill.2d 74, 84. See also Buehler v. White, 337 Ill.App. 18, and cases cited therein.

Section 463 of Restatement of The Law of Torts, p. 506, states that:

“Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause, cooperating with the negligence of the defendant in bringing about the plaintiff’s harm.” Quoted in Zoloth v. Wacker-Wabash Corp., 328 Ill.App. 564.

Section 465 of Restatement of The Law of Torts, 2d; p. 510, states:

“(1) The plaintiff’s negligence is a legally contributing cause of his harm if, but only if, it is a substantial factor in bringing about his harm and there is no rule restricting his responsibility for it.”

The rules which determine whether the plaintiff is guilty of contributory negligence which will bar his recovery against a negligence defendant “are the same as those which determine whether the conduct of the actor as defendant is sufficient to make him responsible, and therefor, liable for a harm to another.” Quoted in Schmidt v. Anderson, 301 Ill.App.28, 45.

In Briske v. Village of Burnham, 379 Ill. 193, the plaintiff was riding as a guest passenger in a car which struck a barricade across a vacated street in the Village of Rurnham and sued the Village for negligently maintaining the barricade. The trial court denied defendant’s motion for a directed verdict. The Supreme Court said at page 199 that its inquiry was limited to a determination of the proximate cause of the accident and analyzed the question in this manner:

“If a negligent act or omission does nothing more than furnish a condition making an injury possible, and such condition, by the subsequent independent act of a third person, causes an injury, the two acts are not concurrent and the existence of the condition is not the proximate cause of the injury. [Cases cited.] An intervening efficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury and itself becomes a direct and immediate cause of the injury. [Cases cited.] The cause of an injury is that which actually produced it while the occasion is that which provides an opportunity for the causal agencies to act. [Cases cited.]”

The court concluded:

“Manifestly, neither the fact that the vacated street was open to public travel nor the existence of the barricade did anything more than furnish a condition and if either constituted negligence on the part of the respective defendants they were not acts concurrent with the negligence of the driver of the automobile in which plaintiff was a guest. In short, the intervening efficient cause of plaintiffs injuries was (the drivers) negligence.”

The court clarified this on page 200:

“* # * According to [the driver’s] own testimony, his lights were functioning properly and it follows, necessarily, that it was his inattention which constituted the negligence occasioning injuries to his guest. The conclusion is inescapable, under these circumstances, that [the driver] could and would have stopped his car had he used his powers of observation.”

The Supreme Court said that when it considered the evidence in its aspect most favorable to the plaintiff, the evidence demonstrates that the proximate cause of plaintiff s injuries was the negligence of the driver of the car, and not the presence of the barricade.

In the present case there is no question but that the defendant was negligent because his passenger saw the car for a long time before the car was struck. There was no question but that there were lights on the plaintiffs car and the defendant could have seen them if he were looking. The uncontroverted evidence is that he was not looking. Under the rationale of Briske, the plaintiffs negligence, if any, in having his car parked at the time and place in question could not be a proximate cause of his own injuries, or at the very least it was a question of fact for the jury to decide.

I would remand for another reason. As one of its reasons for holding that plaintiff was contributorily negligent as a matter of law, the majority states that plaintiff failed to prove careful habits. Plaintiff states in his brief that he did not introduce careful habit testimony because there was an eyewitness to the accident. Defendant contends that under the facts of this case plaintiff could have proved that he was a driver of careful habits and that had he done so, this evidence would have been sufficient to make his due care a question of fact for the jury. If the defendant is correct as the majority opinion indicates in its holding, we are asked to affirm the judgment of the trial court granting defendant’s post-trial motion after the jury had failed to agree, even though the plaintiff would probably be able to get his case to the jury by proof of careful habits on retrial.

Where a material question is in controversy on a material issue and the record discloses that all the evidence on that issue has not been produced, a court of review has the power to review the judgment and remand the cause for the taking of further evidence upon that issue. (American Smelting Co. v. Industrial Com., 353 Ill. 324; Kitzer v. Kitzer, 1 Ill.App.3d 1016. See also Henry’s Drive-In, Inc. v. Anderson, 37 Ill.App. 2d 113, and People v. McGrath, 85 Ill.App.2d 388.) Every court should undertake as nearly as possible to see that cases are disposed of on their true merits.

Under the foregoing facts, the rationale of Lamont v. Thompson, 303 S.W.2d 589, seems particularly appropriate. The court there said at page 595:

“* * * We think the failure to submit the issue of failure to warn was due to the misadventure of overlooking or failing to appreciate the significance of the evidence tending to support the issue. In the exercise of discretion, we give effect to the general principle that, in the furtherance of justice, a case should not be reversed without remand unless the appellate court is convinced that the facts are such that a recovery cannot be had,' that is, if plaintiff has shown a state of facts which might entitle him to recover if his case were submitted on a proper theory. [Cases cited.]”

I would remand this case to the trial court for a trial on the merits.


author:
Mr. JUSTICE JONES
      Mr. JUSTICE GEORGE J. MORAN

text:
    Hardware Wholesalers, Inc., Plaintiff-Appellant, v. Richard J. Heath et al., Defendants-Appellees.
    (No. 71-209;
    Fifth District
    February 28, 1973.

      G. MORAN, J., dissenting.
    Cox, Phillips & Weber, of Robinson, (Frank J. Weber, of counsel,) for appellant.
    Robert L. Douglas, of Robinson, for appellees.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Plaintiff appeals the dismissal of Count I of its complaint which sought a judgment against defendant Richard J. Heath on the basis of an alleged agreement of guaranty. Count II of the complaint was lodged against Crawford County Cash & Carry, Inc., successor to Reese Building & Industrial Supply, Inc. and is not involved in this appeal. The dismissing of Count I was in response to the motion of defendant Heath, was final, and contained the requisite finding provided in Supreme Court Rule 304. Ill. Rev. Stat., ch. 110A, sec. 304.

The essential allegations of Count I are that during the early part of 1963 Reese Building & Industrial Supply, Inc., now Crawford County Cash & Carry, Inc., and Richard J. Heath, individually, requested that plaintiff supply Reese with hardware, lumber and building materials on credit; that in consideration for the furnishing of such merchandise to Reese on credit plaintiff required the assurance of some responsible person that the cost of said merchandise would be paid; that the defendant Heath, individually, as an inducement to the credit sales, undertook, agreed and promised to answer to plaintiff personally for the debts of Reese and that such undertaking was evidenced by a promise in writing addressed to the assistant secretary and treasurer of plaintiff. A copy of the memorandum was attached and incorporated in the complaint. Count I further alleged that in reliance upon the agreement of defendant Heath the plaintiff made credit sales to Reese, that there is now an outstanding balance which has not been paid despite demand made upon Reese, its successor, and Richard J. Heath, individually. Count I concludes with a prayer for a judgment against Heath individually.

The memorandum referred to in the complaint was in the form of a letter, typed on stationery with the imprinted letterhead: “L. S. Heath & Sons, Inc., America’s Finest Candy Bar,” and follows in its entirety:

“March 29, 1963
Mr. Welty Bauer
P.O. Box 868
Fort Wayne, Indiana
Dear Mr. Bauer:
In regard to our telephone conversation, I would like to give you a little background about the Reese Building and Industrial Supply, Inc. This Corporation was formed on February 15, 1963 with the principal stockholders being the Reeses who own 60% of the stock and Mr. W. J. Chamblin and myself owning 40%. Frank G. Reese, Jr., who is the President, ran this yard for Mr. D. L. Kirtland of Oblong, Illinois for five years and is very experienced in the lumber business.
I am the Treasurer of the Reese Company besides being the Vice President and Treasurer of L. S. Heath & Sons, Inc. I will personally guarantee the Reese Company and I believe the finest reference I could give you would be Mr. James Lentz, Vice President of the Indiana National Bank of Indianapolis. Mr. Art Lodge, President of the Second National Bank in Robinson, Illinois would be another. Dun and Bradstreet can be used also.
We will make a fine company for you and if there are any other questions, please feel free to contact me. I am sending a box of our Heath chips as my reference.
Very sincerely yours,
(signed) Richard J. Heath Vice President-Treasurer”

In response to defendant’s motion the court below dismissed Count I of the complaint on the grounds (1) that the letter was addressed to someone other than plaintiff, (2) the letter was not a direct promise to pay but a mere recommendation of the Reese company and (3) although in his letter Heath says he will personally guarantee the Reese company he does not say he will guarantee payment. The issue presented by this appeal is whether under the facts alleged defendant’s liability is a question of law that may be determined by the court upon the pleadings aloné or a question of fact for determination by a jury.

Plaintiff urges that the statement in the letter, “I will personally guarantee the Reese Company,” indicates that something more than a mere recommendation was intended and that evidence should be admitted to clear up the ambiguity. Plaintiff also argues that evidence is admissible to show that the individual addressee received the letter, as was intended by Mr. Heath, in his capacity as an officer of the plaintiff company, and that although the letter from Heath is signed by defendant as Vice President and Treasurer of L. S. Heath & Sons evidence is nevertheless admissible to show that Heath signed the letter in his personal capacity. Defendant counters that the trial court was correct in its dismissal for the reasons it stated and in addition that since Heath signed the letter as Vice President-Treasurer on L. S. Heath & Sons, Inc. stationery it is demonstrated that Heath did not personally guarantee the debts of the Reese company but that if there was any guaranty of the debts of the Reese company it was that of L. S. Heath & Sons, Inc. In essence, then, the issue here turns on whether the alleged letter of guaranty is the complete integration of the understanding and agreement of the parties or, on the other hand, is ambiguous and susceptible of differing interpretations so as to require the admission of evidence in order to ascertain the true agreement of the parties. We think that to state the issue thus is to beg the conclusion that the letter is ambiguous and that the trial court was in error in dismissing Count I of plaintiff’s complaint.

At the outset note must be made that by filing a motion to dismiss defendant admitted as true the well pleaded facts of the complaint. We have for determination the question of whether or not as a matter of law Count I of the complaint states a cause of action. That question cannot be resolved in the mix of disputed questions of fact. To make that determination the facts must be assumed to be as they are alleged in the complaint. The position taken by defendant in his argument here is based on an assumption that the admittedly true facts alleged in the complaint do not obtain, that other facts must be recognized and the complaint be then found insufficient. Defendant’s position is inconsistent and his argument thus ineffectual. The necessary elements for plaintiff’s cause of action are present in Count I, and with the admissions flowing from the motion to dismiss, it is sufficient.

But notwithstanding the admissions of fact implicit in defendant’s motion to dismiss, can it be said, as a matter of law, that the letter in question could never be shown to be in fact a letter of guaranty from defendant Heath individually? An affirmative answer, and affirmance for defendant, can be obtained only from an interpretation of the alleged letter of agreement. The rules of construction applicable to contracts generally apply to contracts of guaranty. (Schreffler v. Nadelhoffer, 133 Ill. 536, 25 N.E. 630; United States Gypsum Co. v. Bernstein, 169 Ill.App. 474; Restatement of the Law, Surety, sec. 88.) The rules governing construction of contracts have been stated many times and are typified in Martindell v. Lake Shore Nat. Bank, 15 Ill.2d 272, 154 N.E.2d 683:

“The primary object of the construction of a contract is to give effect to the intention of the parties, greater regard being given to such intent, when clearly revealed, than to any particular words used in expression thereof. [Citations.] In general, the intention of the parties is to be determined from the final agreement executed by them, rather than from preliminary negotiations and agreements, [citation] but previous agreements, negotiations and circumstances may be considered in determining the meaning of specific words and clauses. [Citations.] s * * extrinsic evidence is admissible to show the meaning of words used in a contract where there is an ambiguity, or when the language is susceptible of more than one meaning. [Citations.]” (Emphasis supplied.)

In a case involving construction of a contract of guaranty, the court in Claude Southern Corp. v. Henry’s Drive-In, Inc., 51 Ill.App.2d 289, 201 N.E.2d 127, has this to say:

“* # # where * * * the express terms of the contracts are ambiguous, or there is a question regarding the intention of the parties, the rule of strict construction is not brought into play until the intention is determined from the declarations and conduct of the parties or from the surrounding circumstances. [Citations.] Letters of guaranty generally drawn by businessmen without the aid of legal counsel often lack the evidence of deliberation which characterize some of the forms of suretyship. Such commercial instruments should not be construed with a strict technical nicety but rather according to what is fairly to be presumed to have been the understanding of the parties.”

When the letter in its entirety is considered in the light of the foregoing we think it apparent that an ambiguity does exist and that the language used is easily susceptible of more than one meaning. Its first paragraph is solely concerned with an explanation of the Reese company and the composition of its stockholders and officers. The writer identifies himself as a stockholder. The second paragraph is devoted to the identity of the writer of the letter and certain references (presumably for financial responsibility). It is written in the first person. This paragraph contains the language “I will personally guarantee” followed by “the finest reference I could give you * * If not conclusive on the matter this language is at the least capable of being interpreted to mean that the writer is personally guaranteeing the Reese company and then gives as his own personal references those persons and agencies enumerated in the letter. When thus viewed it cannot be said that the letter is a mere "reference” for the Reese company. When assigned its usual and customary meaning the word “guarantee” means something more than “reference.” The final paragraph of the letter states that “we” will make a fine company for you, etc. Does this refer to the Heath Company or the Reese company? It is ambiguous in this regard. However, nowhere in the letter does the writer attempt to enhance the Heath company. If this were his objective then why dwell upon the Reese company in the letter?

It should also be borne in mind that the “agreement” was prepared by Heath and any ambiguity must be resolved against him. (City of Chicago v. Carpenter, 95 Ill.App.2d 81, 238 N.E.2d 70.) And the fact that the alleged personal undertaking of defendant Heath is contained upon a corporate letterhead and is ostensibly signed by him as a corporate officer is not conclusive on the question of his personal undertaking. (Inland Rubber Corp. v. Eskimo Kooler Corp., 337 Ill.App. 292, 85 N.E.2d 859, (published in abstract).) The corporate trappings surrounding the signature of the individual, in the setting here, constitute no more than evidence of the true intention of the writer of the letter. They are not controlling but only one factor to be considered.

We think it plain from the text of the entire letter and in view of tire particular elements we have noted that the letter is not conclusively a contract of guaranty on the one hand or a mere recommendation on the other. Its true nature may be determined only in the factual setting in which it was written. The factual setting can only be cast from the evidence bearing upon the matter. Accordingly the Mal court was in error in granting defendant’s motion to dismiss Count I of the complaint.

Reversed and remanded.

ERERSPACHER, J., concurs.

Mr. JUSTICE GEORGE J. MORAN

dissenting:

In construing a written instrument, it should be read and considered as a whole. The intention of the parties is not to be gathered from detached portions of the contract or from any one clause or provision standing by itself, but each part of the instrument should be viewed in the light of the other parts. (Martindell v. Lake Shore National Bank, 15 Ill.2d 272.) One clause of the instrument may be modified or limited by another clause, and no word should be changed if, by considering the entire instrument, all parts of it may be interpreted to create one consistent plan. Metcalfe v. First Nat. Bank of Pittsfield, 312 Ill.App. 385.

The context in which an ambiguous word is used often determines its meaning. (Saunders v. Fox, 178 Ill.App. 309.) The use of the word “guarantee” does not necessarily import a guaranty contract. Kurth v. Forreston State Bank, 348 Ill.App. 581.

“Frequently nuances of meaning of words in a contract are sharply revealed by their association with other words. The ancient maxim of noscitur a sociis’ summarized the rule that the meaning of words may be indicated or controlled by those words with which they are associated. Words are known by the company they keep. * # * Where any particular word is obscure or of doubtful meaning when taken by itself, the obscurity or doubt may be removed by reference to associated words.” 17A C.J.S. 149.

A careful examination of the letter in question discloses nothing to suggest that this writing constitutes a contract of guarantee. The word “guarantee” is present, but it is surrounded by language indicating that the letter was meant merely as an introduction, or recommendation, or reference. When the author of the letter in question wrote, “I will personally guarantee the Reese Company,” he completed the meaning by continuing the rest of the sentence without even the interruption of a comma, “and I believe the finest reference I could give you would be Mr. James Lentz, Vice President of the Indiana National Rank of Indianapolis.” In the completed sentence we have a completely unambiguous communication. Its author is emphasizing personal recommendation and supporting it with one obtainable from another apparently prestigious individual. There are not two separate, different thoughts or ideas in this sentence, which would necessarily be the case if plaintiff’s contentions are accepted. Rather it is clear that defendant was repeating in the part of the sentence following the conjunctive “and” the same meaning that preceded it, that is a recommendation or source of reference. “The word ‘and’ in its common meaning expresses a relation, an addition, and whether used to connect words, phrases or sentences, it must be accepted as binding together and as relating the one to the other.” (Hailey v. County Board of School Trustees, 21 Ill.App.2d 105, 112.) This type of inference is customary, and I believe reasonable people under the circumstances would so understand and evaluate it. The next two sentences in the paragraph further clarify the meaning of the sentence in question as one of recommendation or reference. They state that Art Lodge and Dun and Bradstreet are references in addition to the James Lentz mentioned in the previous sentence. Therefore, the consistency and single purpose of this paragraph is established as a recommendation. The first sentence indicates that he is an individual of substance and a person whose recommendation should have great weight. In the next three sentences he furnishes three other business references for consideration of the recipient of the letter.

Obviously, this letter could have but one meaning. It is a letter of reference. The first paragraph tells who the officers of the Reese Corporation are. The second contains references, and the last paragraph is another reference: “We will make a fine company for you and if there are any other questions, please feel free to contact me. I am sending a box of our Heath chips as my reference.” The only possible ambiguity is a patent one — the use of the words “personally guarantee”. However, when read in the context of the entire letter, the purpose of the writing is so overwhelmingly clear that any reasonable doubts are quickly dispelled and there is no ambiguity. One of the meanings of the word “guarantee” is “to vouch for”. A reasonable person, and in particular a business person, would see only a letter of reference emerge from the present writing.

Plaintiff has, throughout the course of litigation, as evidence by his own complaint, contended that his case rests on a written contract guarantee. Since the writing which constitutes the alleged contract unambiguously presents itself, upon a common-sense examination, as a letter of reference, the order of the trial court dismissing the complaint as to Heath is correct and should be affirmed.


author: Mr. JUSTICE CREBS

text:
    Lebanon Trust and Savings Bank, Plaintiff-Appellee, v. Obert W. Ray, d/b/a Base Auto Sales, Defendant—(Gloria Mathis, Defendant-Appellant.)
    (No. 72-91;
    Fifth District
    February 28, 1973.

      Bock & Stenger, of Belleville, (Ralph T. Stenger, of counsel,) for appellant.
    Phillip A. Montalvo, of McRoberts, Sheppard, McRoberts & Wimmer, P.C., of East St. Louis, for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

The Circuit Court of St. Clair County entered a default judgment against appellant in a replevin action wherein plaintiff replevied an automobile which was in appellant’s possession. Seven months after that order was entered appellant filed a petition for relief from judgment, which petition was denied whereupon appellant initiated this appeal. On appeal appellant claims that the trial court never obtained jurisdiction over her and that the default judgment should therefore be vacated.

The facts in this case are somewhat bizarre. On March 12, 1970 plaintiff filed a complaint in replevin against Obert W. Ray, d/b/a Base Auto Sales. The replevin bond and the writ issued by the Clerk named Ray as the sole defendant. Under color of the writ the sheriff took possession of the automobile in question which was then in appeHant’s sole possession and control. At the time of the replevin of the car appellant had not been named as a party defendant in either the complaint, bond or writ, except for a handwritten notation on the writ adding her name under the previously designated defendant. The return on the writ does not reflect that it was served upon anyone, as required by section 14 of the Replevin Act, and merely recites that the sheriff took possession of the automobile. On April 9, 1970 the appellant made a special and limited appearance and moved to quash the writ of replevin and the service of the writ on the grounds that appellant was never a party to the action and that the court therefore had no jurisdiction over her nor the property taken from her, said writ being, as to her, null and void. On the following day the court entered an ex parte nunc pro tunc order aHowing the complaint, affidavit for replevin and writ of replevin to be amended by interlineation thereby adding appellant as a party defendant in the case and as a party to whom the writ was directed. On April 20, 1970 appellant again made a special and limited appearance and filed a motion to expunge the nunc pro tunc order from the record alleging that the order was made ex parte after her motion to quash was already of record and that said order was an invalid attempt to cure the original defects in the complaint and writ. The motion to quash and the motion to expunge were heard and denied on September 24, 1970, and on February 8, 1971, the court entered a default judgment for plaintiff, there having been no general appearance or responsive pleading made by either the original defendant or the appellant. On September 8, 1970, exactly seven months after the default judgment, ostensibly pursuant to section 72 of the Civil Practice Act, wherein she asserted that the default judgment theretofore entered was null and void by virtue of lack of jurisdiction over the person of the petitioner and that same should therefore be vacated and set aside. On December 14, 1971, the court denied appellant’s petition and as grounds therefore found that the petition was not supported by affidavit and was filed too late. It is from this latter order that appellant now appeals.

It is a fundamental principle that a void order or judgment may be attacked at any time. (Ill. Rev. Stat. 1969, ch. 110, sec. 72(7); Culver v. Allerton, 132 Ill.App.2d 137, 269 N.E.2d 507; Weiner v. Checker Taxi Co., 124 Ill.App.2d 401, 260 N.E.2d 439; Antczak v. Antczak, 61 Ill.App. 2d 404, 410, 209 N.E.2d 838.) In view of this clearly defined legal principle, we find absolutely no merit to the trial court finding that appellant filed her petition for relief from judgment too late to secure the relief for which she prayed. The sole basis for her petition is her claim that the judgment is yoid for lack of jurisdiction over her person and property, a claim which she has consistently and persistently advanced throughout the course of this litigation. Such an attack has no time limit and the decision of the trial court was clearly erroneous.

It is likewise clear that the trial court erred in ruling that she was not entitled to the relief sought by her petition because no affidavit was filed pursuant to the provisions of section 72 of the Civil Practice Act. Her petition was based upon facts contained solely and completely in the record before the court and an affidavit could only have been a reiteration of the matters already an official part of the court file. Plaintiff argues that the appellant has failed to follow the procedural steps required by said section 72, which argument totally ignores the clear provision of subsection 7 thereof, wherein it is provided that nothing contained in any other portion of that section shall affect any existing right to relief from a void order, judgment or decree. (Ill. Rev. Stat. 1969, ch. 110, sec. 72(7).) The matter has been properly brought before this court and the sole issue to be determined is whether or not the judgment is in fact' void as-claimed.

The law is also clearly defined and established that jurisdiction is of two kinds, jurisdiction of the person and jurisdiction of the subject matter, both of which must concur or the judgment will be void in any case in which the court has assumed to act. (Lewis v. Blumenthal, 395 Ill. 588, 594, 71 N.E.2d 36.) It is therefore fundamental that the question of the jurisdiction of a court as to subject matter or as to parties can be raised at any time either directly or collaterally. (Bratkovich v. Bratkovich, 34 Ill.App.2d 122, 180 N.E.2d 716.) The Illinois Replevin Act clearly provides that the actions shall be commenced by filing a verified complaint naming a defendant who unlawfully detains the property (Ill. Rev. Stat. 1969, ch. 119, sec. 4) and that thereafter a writ of replevin shall be issued by the clerk at the request of plaintiff which writ shall direct the sheriff or other officer to take the specified property from the named defendant. (Ill. Rev. Stat. 1969, ch. 119, sec. 7.) As a further prerequisite for the issuance of the writ, the plaintiff must secure a bond with sufficient security in double the value of the property conditioned that he will, amongst other things, return the property to the named defendant if so ordered and further conditioned on payment of all costs and damages incurred as a result of a wrongful taking. (Ill. Rev. Stat. 1969, ch. 119, sec. 10.) The act also provides that the named defendant can, when served with the writ, execute a forthcoming bond in double the value of the property whereupon defendant may retain the property until an adjudication of the respective rights of the parties is made. (Ill. Rev. Stat. 1969, ch. 119, sec. 14). Here, neither the complaint, the writ of replevin nor the replevin bond named appellant as a defendant when they were filed with the court. In the case of the writ of replevin, however, the sheriff by hand penned in appeHant’s name and then proceeded to serve the amended writ. It is again basic law that the court does not obtain jurisdiction by having service made upon a party not named in the suit. A sherifFs sole function is to serve persons named in the summons or writ, and his return can in no way broaden the scope of the pleadings or add a party not theretofore made a defendant. (Lewis v. West Side Trust & Savings Bank, 377 Ill. 384, 36 N.E.2d 573.) It is thus immediately apparent that the court had no jurisdiction over the person of appeHant nor of her property inasmuch as the sheriff”s return could not serve to correct the failure to name her as defendant as was required by the Repelvin Act. AppeHant, recognizing this jurisdictional faffing, quite properly filed a motion to quash the writ of replevin and service thereof whereupon plaintiff, obviously then aware of its mistake, sought and obtained a nunc pro tunc order wherein the court allowed the complaint and writ of replevin to be amended by interlineation, adding appeHant as a party defendant and as a party to whom the writ was directed. The jurisdiction of the court clearly rests solely on the validity of that nunc pro tunc order and if same is invalid, appellant is obviously entitled to the relief sought. In our view, the order was patently in excess of the power of the trial court and therefore void.

The purpose of a nunc pro tunc order is to presently show that which was previously done and it takes effect from such prior time. It is solely a device for supplying omissions and to enter of record something actuaHy done. It may not, however, supply omitted judicial action nor correct judicial errors. (Chapman, Mazza, Aiello, Inc. v. Ace Lumber & Construction Co., Inc., 83 Ill.App.2d 320, 227 N.E.2d 562.) Here, as in the Chaparían case, the omission was not one of form and the nunc pro tunc order was obviously intended to substantially change what was done. The action taken was all the more erroneous by virtue of the fact that the court eliminated the only safeguards available to a person whose property is being replevied, by faffing to amend, nunc pro tunc, the replevin bond. The appeHant was not named defendant at the time the property was taken and thus, under the provisions of the Replevin Act, she had no right to file a forthcoming bond in order to retain the property and she was also not named on the bond, thus depriving her of that security. Because of the court’s lack of jurisdiction over appeHant we reverse the decision of the trial court and remand this cause with directions to vacate the default judgment and for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded, with directions.

.EBERSPACHER, P. J., and JONES, J., concur.