author: JUSTICE TRAPP JUSTICE LONDRIGAN,

text:
    RICHARD L. SMALLING, Plaintiff-Appellant, v. LaSALLE NATIONAL BANK OF CHICAGO, Trustee, et al., Defendants-Appellees.
    Fourth District
    No. 17327
    Opinion filed March 16, 1982.
    Rosenberg, Rosenberg, Bickes, Johnson & Richardson, Chartered, of Decatur (David L. Johnson and Jay M. Watts, of counsel), for appellant.
    Craig J. Causeman, of Thomas, Mamer, Haughey & Miller, of Champaign, Phebus, Tummelson, Bryan & Knox, of Urbana, and Armstrong, Winters, Prince, Fetherstun & Johnson, of Decatur (Hurshal C. Tummelson, Robert D. Winters, and Daniel L. Gaumer, of counsel), for appellees.
   JUSTICE TRAPP

delivered the opinion of the court:

Plaintiff, Richard Smalling, appeals from an order of the circuit court of Champaign County granting the defendants’, LaSalle National Bank, Landau and Heyman, P.A. Bergner & Company, and Brown’s Sporting Goods, motions for summary judgment against plaintiff’s complaint alleging personal injuries from a fall on snow on defendants’ loading ramp.

On November 29, 1978, plaintiff filed a complaint for personal injuries against the defendants seeking recovery of medical expenses, lost wages, and other damages incurred as a result of a fall on a snow covered ramp at the Market Place Mall in Champaign, Illinois. An amended complaint, filed following defendants’ motion to dismiss, alleged that plaintiff had gone to the Market Place Mall to purchase a ping-pong table at defendants’ P.A. Bergner & Company or Brown’s Sporting Goods. Plaintiff alleged that the legal title to the premises in question was held by LaSalle National Bank, beneficial interest was held by Landau and Hey-man, and that all defendants were in joint control of the premises in question. Plaintiff stated that he had paid for the ping-pong table and was directed by an employee of P.A. Bergner or Brown’s Sporting Goods to drive to a loading dock at the rear of the store to pick up the table. Plaintiff went to the loading dock and was told that he could wait until another employee arrived to assist the clerk or he could help in loading the table. Plaintiff decided to assist the clerk, and as he was backing down the snow-covered ramp, estimated to be 50 feet long and 30 degrees, he fell in the snow sustaining injuries to his leg and knee. At a discovery deposition, plaintiff testified that at the time he went into the store it had begun to snow and that there was snow on the ground. Plaintiff also stated that while he was waiting for an ambulance to arrive after he fell, he heard an employee rebuke another employee for not clearing the snow from the ramp.

Plaintiff’s amended complaint alleged that defendants had breached one of the following duties owed to the plaintiff: (a) failed to remove or take steps to prevent the accumulation of ice and snow from said ramp or walkway, when they knew, or should have known, that customers would be using the same; (b) failed to warn plaintiff of the condition of said ramp or walkway when they knew, or should have known, of the dangers and unsafe conditions thereof; (c) permitted the said ramp or walkway to become covered with ice and snow when they knew, or should have known, it would be used by the public; (d) directed plaintiff to said ramp and requested him to use the same when they knew, or should have known, of its dangerous and unsafe conditions. Following the denial of defendants’, LaSalle National Bank and Landau and Heyman, motions to dismiss, all defendants filed a motion for summary judgment. On June 19, 1981, the trial court entered an order granting defendants’ motions for summary judgment, and it is from this order that plaintiff appeals.

Plaintiff argues that the trial court’s action in granting defendants’ motions for summary judgment was error, as material questions of fact existed regarding the condition of the ramp in question. Specifically, plaintiff contends that it was error to grant summary judgment because he was precluded from presenting evidence to show that the ramp had a defective condition or design which in combination with the snow resulted in the injuries. Despite these contentions, however, no allegation was made in plaintiff’s complaint that the ramp was unsafely designed or defective, and no affidavits or other evidence were introduced on this issue aside from plaintiff’s testimony that the ramp was 30 degrees in grade. If plaintiff had such evidence to present regarding the defective nature of the ramp, it was incumbent upon him to produce evidence of such defective design prior to the hearing on defendants’ motions for summary judgment to support his prima facie case. (Kimbrough v. Jewel Companies, Inc. (1981), 92 Ill. App. 3d 813, 819, 416 N.E.2d 328, 333.) Plaintiff’s contrary contention that other evidence would have been forthcoming is inconsistent with the summary purposes of a section 57 motion (Ill. Rev. Stat. 1979, ch. 110, par. 57) for summary judgment, and would, if allowed, result in a trial despite the fact that plaintiff’s theory of recovery and proof in support would be insufficient to sustain a jury verdict in his favor. Thus, eliminating this consideration from our review of whether summary judgment was proper, the question we must decide is whether, viewing the evidence contained in the pleadings and deposition in a light most favorable to plaintiff, no material question of fact exists and the defendants are entitled to a judgment as a matter of law. Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 407 N.E.2d 1031.

We first note that although several jurisdictions have imposed a more stringent duty on owners or occupiers of land with regard to the removal of natural accumulations of ice and snow (see Dawson v. Payless For Drugs (1967), 248 Or. 334, 433 P.2d 1019; Quinlivan v. Great Atlantic & Pacific Tea Co. (1975), 395 Mich. 244, 235 N.W.2d 732; Kremer v. Carr's Food Center, Inc. (Alas. 1969), 462 P.2d 747; King Soopers, Inc. v. Mitchell (1959), 140 Colo. 119, 342 P.2d 1006), the law in Illinois is well established that a landowner has no duty to remove or take other precautions against the dangers inherent in natural accumulations of snow and ice. See Riccitelli v. Sternfeld (1953), 1 Ill. 2d 133, 115 N.E.2d 288; Hankla v. Burger Chef Systems (1981), 93 Ill. App. 3d 909, 418 N.E.2d 35; Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142,407 N.E.2d 1031; McCann v. Bethesda Hospital (1979), 80 Ill. App. 3d 544, 400 N.E.2d 16; Bakeman v. Sears, Roebuck & Co. (1974), 16 Ill. App. 3d 1065, 307 N.E.2d 449; Greenwood v. Leu (1973), 14 Ill. App. 3d 11, 302 N.E.2d 359; Newcomm v. Jul (1971), 133 Ill. App. 2d 918, 273 N.E.2d 699; DeMario v. Sears Roebuck & Co. (1972), 6 Ill. App. 3d 46, 284 N.E.2d 330; Byrne v. Catholic Bishop of Chicago (1971), 131 Ill. App. 2d 356, 266 N.E.2d 708; Fitzsimons v. National Tea Co. (1961), 29 Ill. App. 2d 306, 173 N.E.2d 534.

Liability will be imposed, however, where the injury occurred as a result of snow and ice which is produced or accumulated by an artificial cause or in an unnatural way or by defendant’s own use of the area concerned and creation of the condition. (McCann v. Bethesda Hospital (1979), 80 Ill. App. 3d 544, 548, 400 N.E.2d 16, 19; Stroyeck v. A. E. Staley Manufacturing Co. (1960), 26 Ill. App. 2d 76, 83, 167 N.E.2d 689, 692; Fitzsimons v. National Tea Co. (1961), 29 Ill. App. 2d 306, 318, 173 N.E.2d 534, 540; McGourty v. Chiapetti (1962), 38 Ill. App. 2d 165, 186 N.E.2d 102.) In McCann, the plaintiff had fallen on a patch of ice in defendant’s lot which had been cleared the day before the accident. Plaintiff presented the affidavit of an architect which indicated that the slope of the parking lot had caused an unnatural accumulation of ice as a result of alternate days of thawing and freezing allowing water to drain and refreeze in the area where plaintiff fell. In considering whether summary judgment was properly entered for the defendant, the appellate court held that an issue of fact existed as to whether the slope of the parking lot was a dangerous condition creating an unnatural accumulation of ice and reversed the order allowing defendant’s motion for summary judgment. (Accord, Fitzsimons.) In Stroyeck, plaintiff was injured from a fall on an ice covered sidewalk having a 13.6-degree grade while walking to her place of employment in the predawn hours. On appeal from the judgment entered on the jury verdict for plaintiff, the court noted that the combination of the steep grade, inadequate lighting and the fact that defendant’s engineers had previously drawn up plans to remedy the slope on the sidewalk but had not done so, was sufficient evidence to uphold the implicit finding by the jury that the defendant was negligent. No natural accumulation was present in Stroyeck, however, since the evidence indicated that there was no ice and snow present in the neighborhood and the presence of the ice at the bottom of the ramp in question was a mystery. In McGourty, a business invitee was injured when he stepped upon a concrete block, which was covered with snow and ice falling from the overhead roof, used as a means of ingress and egress to defendant’s loading dock. On appeal from the judgment entered on the jury verdict against defendant in plaintiff’s suit for personal injuries, the court held that the evidence was sufficient to present a jury question and that the denial of defendant’s motion for a directed verdict and judgment notwithstanding the verdict was proper. The court stated:

“Where a condition exists which will be made dangerous by snow and ice and where it can be discovered prior to the existence of the snow and ice, the condition is a patent defect. * * * There is ample basis for the finding in the instant case that defendant could by reasonable inspection have discovered that during the winter the cement block would be a dangerous means of egress from the dock.” (38 Ill. App. 2d 165, 175, 186 N.E.2d 102, 106.)

Thus the duty of the defendant in McGourty to exercise reasonable care toward business invitees (see Geraghty v. Burr Oak Lanes, Inc. (1955), 5 Ill. 2d 153, 125 N.E.2d 47) to discover and remedy patent defects was breached by the defendant’s failure to substitute a safer means of ingress and egress from the business premises. Like Stroyeck, the McGourty holding is not inconsistent with the natural accumulation rule. In McGourty the proof went to the defective nature of the steps and not that the defective condition to be remedied was the presence of the snow and ice. The snow and ice on the step was an unnatural accumulation, aggravating the already defective step.

Neither of these factors is present in the case at bar. Plaintiff made no allegation and offered no proof that the injury occurred as the result of a defect in the design or construction of the ramp and the record is clear that the snow on the ramp in question accumulated naturally, consistent with the general conditions prevalent in the neighborhood.

Likewise, in Greenwood and Davis v. City of Chicago (1972), 8 Ill. App. 3d 94, 289 N.E.2d 250, no liability was imposed on landowners for injuries sustained on inclined surfaces covered with natural accumulation of ice and snow. In Davis, plaintiff, a pedestrian, fell on a slanting icy sidewalk having an incline of 5.7 degrees. The trial court granted defendant’s motion for a directed verdict against the proof offered in support of plaintiff’s complaint seeking damages for personal injuries, and on appeal from this order, the court concluded:

“Considering the slight angle of incline, we believe the overwhelming weight of the evidence to have demonstrated that plaintiff’s fall was caused not by the slope of the sidewalk but rather by the snow and ice conditions for which the City was not responsible under the circumstances of this case.” (8 Ill. App. 3d 94, 97, 289 N.E.2d 250, 252.)

In Greenwood, plaintiff slipped on ice on a recessed sloping entrance to defendant’s grocery store. In considering whether summary judgment was properly entered against plaintiff’s suit for personal injuries, the court concluded that plaintiff’s failure to allege that the ice and snow accumulated unnaturally or that the defendant created an unnatural condition of snow and ice was fatal to plaintiff’s suit and affirmed the order granting defendant’s motion. The court also noted that since plaintiff failed to introduce evidence to establish that the inclined surface had anything to do with the fall, the incline of the entranceway did not present a question of fact to preclude summary judgment.

Considering the pleadings and the deposition of plaintiff, we conclude, as did the trial court, that there was no genuine issue of material fact and that the defendants were entitled to judgment as a matter of law (Ill. Rev. Stat. 1979, ch. 110, par. 57; McCann v. Bethesda Hospital (1979), 80 Ill. App. 3d 544, 547, 400 N.E.2d 16, 19). Our review of the decisional law leads us to conclude that injuries arising from falls on ice and snow covered inclined surfaces, which have natural accumulations of ice and snow, do not give rise to liability on the part of the landowner. In the case at bar, plaintiff made no allegation and offered no proof on the issue of the defective nature or design defect of the ramp in question. Further, it is uncontradicted that the snow in question was a natural accumulation on the ramp.

Accordingly, for the foregoing reasons, the judgment of the circuit court of Champaign County is affirmed.

Affirmed.

MILLS, J., concurs.

JUSTICE LONDRIGAN,

dissenting:

I have dissented from the opinion of the court because I believe it to be an erroneous perpetuation of an inapplicable rule of law which allows landowners complete immunity from liability resulting from injuries occurring on natural accumulations of snow and ice on business premises. An examination of the case law applicable to the circumstances at bar makes it apparent that the natural accumulation rule is not the proper standard to be applied relative to the duties of landowners toward business invitees.

One of the first cases in this State involving the liability of landowners for injuries arising from falls on accumulations of snow and ice was Graham v. City of Chicago (1931), 346 Ill. 638, 178 N.E. 911. In Graham, plaintiff, a pedestrian, had fallen on a patch of ice which had formed on a public sidewalk when an artificial ice rink, created by a public school, overflowed on a sidewalk and froze. Plaintiff brought suit against the city on a negligence theory and at trial recovered a jury verdict in her favor. On appeal to the Illinois Supreme Court, that court affirmed the jury verdict, finding the accumulation to have been an unnatural one which warranted the imposition of liability. In discussing the duties owed by the municipality toward pedestrians, the court stated:

“What, if any, duty devolves upon a city to remove ice from its sidewalks is a subject of a great variety of opinions, and because of this divergence of views a number of different and contradictory statements of the law have been laid down in various jurisdictions. However, there is one rule which is almost universal. That is, a city is not liable for injuries resulting from the general slipperiness of its streets and sidewalks due to the presence of ice and snow which have accumulated as a result of natural causes. (13 R. C. L. ‘Highways,’ 408; Spillane v. Fitchburg, 177 Mass. 87; Reedy v. St. Louis Brewing Ass'n, 161 Mo. 523, 53 L. R. A. 805.)” (346 Ill. 638, 641, 178 N.E. 911, 912.)

In further language indicating the premise upon which such a rule was founded, the court noted:

“It is grounded on the fact that it is unreasonable to compel a city to expend the money and perform the labor necessary to keep its walks reasonably free from ice and snow during winter months. Especially is it true in this latitude.” 346 Ill. 638, 643, 178 N.E. 911, 913.

Following Graham was the case of Cronin v. Brownlie (1952), 348 Ill. App. 448, 109 N.E.2d 352. In Cronin, the issue before the court was the liability of a landlord for injuries to a tenant sustained by the tenant on a slippery walk covered with a natural accumulation of snow and ice. Though the only authorities controlling were Graham and Strappelli v. City of Chicago (1939), 371 Ill. 72, 20 N.E.2d 43, a case also involving liability of a municipality for injuries due to natural accumulations of snow and ice, the court reversed the jury verdict in plaintiff’s favor and held that no liability would be imposed upon landowners for injuries arising from natural accumulations of snow and ice. Though significant factual differences existed between the basis for the natural accumulation rule for municipalities and landowners, the court stated:

“The rule denying liability of cities on grounds of unreasonableness and impracticability while not decisive of the issues here is in some measure pertinent.” (348 Ill. App. 448, 453, 109 N.E.2d 352, 355.)

Later, the court made the unwarranted extension from the controlling cases when it stated:

“In our northern climate where ice and snow come frequently and are accepted by all, it appears to us that the rule adopted by the majority of the States finding no liability against the landlord is more reasonable and persuasive than the minority view.” 348 Ill. App. 448, 456, 109 N.E.2d 352, 356.

Thus we find the opinion in Graham was carried over and applied in Cronin, and these cases were later relied upon in Riccitelli v. Sternfeld (1953), 1 Ill. 2d 133, 115 N.E.2d 288. Riccitelli was relied upon by Bakeman v. Sears, Roebuck & Co. (1974), 16 Ill. App. 3d 1065, 307 N.E.2d 449, which was cited as authority in Hankla v. Burger Chef Systems, Inc. (1981), 93 Ill. App. 3d 909, 418 N.E.2d 35, and McCann v. Bethesda Hospital (1979), 80 Ill. App. 3d 544, 400 N.E.2d 16. All of these cases were used by the majority to support the application of the natural accumulation rule to the case at bar.

It is admitted by the defendants that plaintiff was a business invitee, and I perceive no reason not to apply the standards of the Restatement (Second) of Torts §§343 and 343A (1965), adopted by the supreme court in Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465, and applied by this court in Sepesy v. Archer Daniels Midland Co. (1981), 97 Ill. App. 3d 868, 423 N.E.2d 942. The natural accumulation rule was originally applied only to the duties of municipalities to pedestrians and then later was extended to the quite different context of landowners and business invitees. In my view, this factual difference is so great as to not justify its extension. Moreover, the position taken herein represents a trend among other States which have rejected the application of the natural accumulation rule in the context we here consider it. In Quinlivan v. Great Atlantic & Pacific Tea Co. (1975), 395 Mich. 244, 235 N.W.2d 732, in considering the liability of a landowner to a business invitee for injuries sustained as a result of a fall on a natural accumulation of snow and ice, the Michigan Supreme Court stated:

“The line of cases noting the natural accumulation rule, however, uniformly fails to harmonize or reconcile this rule with the rigorous duty which the law recognizes as owed an invitee.
a e e
In the landmark case of Kremer v. Carr's Food Center, Inc., 462 P.2d 747 (Alas., 1969), the Alaska Supreme Court rejected application of the ‘natural accumulation’ rule in the invitor-invitee context. 0 e “ The Court [in Kremer] confined application of the natural accumulation rule to cases involving the duty owed by the municipalities to users of streets and sidewalks, viewing such users as licensees. * * *
In our view the Alaska Court has appropriately conceived the legal duty owed by the invitor to the invitee.” 395 Mich. 244, 256-60, 235 N.W.2d 732, 738-40.

Likewise, the duties the supreme court has dictated for business invitees should be the appropriate standard of care at bar, not the natural accumulation rule which under prior case law was originally applied with respect to the duties owed pedestrians by municipalities. It is understandable that from a policy standpoint such a rule would be the appropriate one for municipalities, but this policy, indicated in Graham and quoted above, is simply inapplicable to the invitor-invitee context. Moreover, the natural accumulation rule provides no clear framework of analysis and we find in cases such as McCann that liability is imposed against the landowner for water allowed to flow from shoveled snowpiles, and refreeze even though it would seem that the actions of the landowner were quite commendable. Under the natural accumulation rule as applied in McCann, had the landowner done nothing, no liability would have resulted; but because of his actions in removing it, he was held liable.

Cities pass ordinances making it a duty to clean snow from sidewalks. Public policy should encourage the removal of snow. Under the natural accumulation rule, one is exposed to liability for removing snow, but has a defense against a lawsuit for non-removal of snow. As to residential property, the Illinois legislature in 1979 enacted the snow and ice removal act (Ill. Rev. Stat. 1979, ch. 70, pars. 201 and 202), which states:

“It is declared to be the public policy of this State that owners and others residing in residential units be encouraged to clean the sidewalks abutting their residences of snow and ice. The General Assembly, therefore, determines that it is undesirable for any person to be found liable for damages due to his or her efforts in the removal of snow or ice from such sidewalks, except for acts which amount to clear wrongdoing, as described in Section 2 of this Act.” Ill. Rev. Stat. 1979, ch. 70, par. 201.
“Any owner, lessor, occupant or other person in charge of any residential property, or any agent of or other person engaged by any such party, who removes or attempts to remove snow or ice from sidewalks abutting the property shall not be liable for any personal injuries allegedly caused by the snowy or icy condition of the sidewalk resulting from his or her acts or omissions unless the alleged misconduct was willful or wanton.” Ill. Rev. Stat. 1979, ch. 70, par. 202.

The duties of landowners toward business invitees as adopted by the supreme court are those described in section 343 of the Restatement (Second) of Torts, which provides:

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.” (Restatement (Second) of Torts §343 (1965).)

Also applicable is section 343A of the Restatement (Second) of Torts:

“(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land. whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. (2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.” Restatement (Second) of Torts §343A (1965).

Thus, in the normal case the duty of landowners to take precautions against natural conditions on the land would be abrogated due to the obviousness of the possibility of harm to invitees. However, as indicated in illustration 5 to comment f of section 343A, such a duty may still be present if the landowner should anticipate the harm despite such knowledge by the invitee. Illustration 5 to comment f provides:

“5. A owns an office building, in which he rents an office for business purposes to B. The only approach to the office is over a slippery waxed stairway, whose condition is visible and quite obvious. C, employed by B in the office, uses the stairway on her way to work, slips on it, and is injured. Her only alternative to taking the risk was to forgo her employment. A is subject to liability to C.” Restatement (Second) of Torts section 343A, comment /, illustration 5, at 221 (1965).

In the present case, even though the risk of harm to plaintiff was obvious, it is arguable that the defendants would have reason to expect that plaintiff would encounter this risk by taking possession of his purchased goods, despite the probability of harm arising from risks inherent in ice and snow, and that such action by plaintiff was entirely reasonable under the circumstances. If debris or other material had accumulated on the ramp, the provisions in the Restatement would have applied (Genaust; Sepesy); the same should apply here to the accumulation of ice and snow. Under the record consisting of the complaint and the deposition of plaintiff, a material question of fact still exists regarding whether defendant should have anticipated the harm that could be caused by snow and ice on its sloping ramp, despite its obviousness, and accordingly should have acted to remedy the condition, warn of its potential, or stop traffic on the ramp while the condition existed.

Accordingly, I would reverse the granting of the summary judgment against plaintiff’s complaint and remand to allow plaintiff the opportunity to present his proof before the trier of fact.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREEN

license: Public Domain

text:
    KATHRYN A. FLESNER, a/k/a Kathryn A. Houser, Petitioner-Appellant, v. NEAL M. HOUSER, Respondent-Appellee.
    Fourth District
    No. 17466
    Opinion filed March 16, 1982.
    Edward C. Eberspacher, III, of Dove & Dove, of Shelbyville, for appellant.
    Burger, Fombelle, Wheeler & Dvorak, P. C., of Decatur, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On October 14, 1980, the district court of the South Central Judicial District of North Dakota entered an amended decree in a dissolution of marriage proceeding between petitioner, Kathryn A. Flesner (formerly Houser), and respondent, Neal M. Houser. That decree dissolved the marriage of the parties and provided for the custody and visitation rights of the parties in connection with their only child, Michael Roy Houser, born November 17, 1975. On May 7, 1981, petitioner filed suit in the circuit court of Macon County against respondent under the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA) (Ill. Rev. Stat. 1979, ch. 40, par. 2101 et seq.) seeking modification of the custody and visitation provisions of the amended North Dakota decree. On August 25, 1981, after a hearing on respondent’s motion to dismiss, the circuit court dismissed the case. Petitioner has appealed. We affirm.

The basic custody provision of the North Dakota decree, as amended, stated petitioner was to have “custody” of the child during the school months and respondent was to have “custody” during the three summer months. Petitioner’s proposed modification was to permit respondent to have the child for only two weeks in the summer, and that he be required to keep the child in Illinois during that time. She also proposed that respondent have rights of visitation every other weekend. The record indicated that the petitioner resided in Illinois, and the respondent continued to reside in North Dakota. The respondent’s petition argued that the North Dakota court had exclusive jurisdiction. The circuit court order of dismissal states that it, the circuit court, did have jurisdiction but would decline to exercise it because the North Dakota court was “in a better position to determine the issues herein.”

As we deem the court’s determination not to exercise jurisdiction to have been within its discretion, we need not decide whether the court had jurisdiction to entertain the case had it chosen to do so.

The Uniform Child Custody Jurisdiction Act, as its name would imply, was adopted (1) to clarify the law with reference to determining the proper court to hear custody disputes which have incidence to more than one State, and (2) to require the proceeding to be brought in the court which would be the best place to make a proper decision. Section 8 of the UCCJA states that a court having jurisdiction of such a proceeding may, nevertheless, decline to hear the case if it is an “inconvenient forum,” and the court of another State is a more convenient one. The section then states:

“(c) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it make take into account the following factors, among others:
1. if another state is or recently was the child’s home state;
2. if another state has a closer connection with the child and his family or with the child and one or more of the contestants;
3. if substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state;
4. if the parties have agreed on another forum which is no less appropriate; and
5. if the exercise of jurisdiction by a court of this State would contravene any of the purposes stated in Section 2 of this Act.” Ill. Rev. Stat. 1979, ch. 40, par. 2108(c).

We conclude that the allegations of petitioner in seeking the modification and her statements in the affidavit later filed in support thereof, justified the trial court’s conclusion that the North Dakota court would be a more convenient forum. In her petition, she stated that for the child to be with the father for the entire summer would “endanger seriously [the child’s] physical, mental and emotional health.” In support of this her affidavit stated: (a) the minor was enrolled in a summer academic program unavailable in North Dakota; (b) the minor suffered from respiratory illness which would be aggravated by the altitude and air in North Dakota; (c) the respondent’s residence was inadequate; (d) respondent was ill equipped to provide for the child’s emotional needs because he had not corresponded with the child; (e) the father’s refusal to consult physicians would endanger the child; and (f) the lack of a peer group for the child and “the supervision of the child in a bar or saloon” would damage the child.

Although the respondent’s right to have the child with him was termed “custody” by the amended decree, in view of the dominant position of the petitioner, the right was more nearly that of visitation. Petitioner’s affidavit mentioned first the unavailability of a summer scholastic program for the child in North Dakota. However, the main thrust of the affidavit was directed to the situation in North Dakota and as to how respondent would provide for the child there. The trial court could have properly decided that “substantial evidence” on the matter was “more readily available” in North Dakota. It is important to realize that no issue existed as to the propriety of the mother’s custody throughout most of the year or the manner in which she was discharging her responsibilities in Illinois. This case differs from Siegel v. Siegel (1981), 84 Ill. 2d 212, 417 N.E.2d 1312, and In re Marriage of Wass (1981), 94 Ill. App. 3d 436, 419 N.E.2d 32, cited by petitioner, where section 8 of the UCCJA was not in issue, and no showings were made that the evidence on the points in question would be “most readily available” in the State of the original custody order.

Matters of record before the court also related to other criteria of section 8(c) of the UCCJA. By the terms of section 3.04 of the UCCJA (Ill. Rev. Stat. 1979, ch. 40, par. 2103.04) Illinois may have been the “home state” of the child because the petitioner stated the child had lived in Illinois with petitioner for more than six consecutive months immediately preceding the filing of the petition. However, petitioner could not deny that North Dakota “recently was the child’s home state.” The petition indicated that for more than six consecutive months preceding February 15, 1980, and for most of the child’s life, he had lived in North Dakota. Based on the length of time the child was stated to have spent in North Dakota, living in part with his father, the trial court could also have found that North Dakota had a closer connection with the child and one of the contestants, respondent, than did Illinois.

It is for the above reasons that we determined the trial court did not abuse its discretion in dismissing the case because of a “more convenient forum” and affirmed.

Affirmed.

MILLS and LONDRIGAN, JJ., concur.


author: JUSTICE VAN DEUSEN

text:
    COMMONWEALTH EDISON COMPANY, Petitioner-Appellee, v. HERMAN F. DANEKAS et al., Defendants-Appellants.
    Second District
    No. 81-436
    Original opinion filed February 11, 1982.
    Rehearing allowed February 23, 1982. — Revised opinion filed April 13,1982.

      Edward T. Graham, of Glen Ellyn, for appellants.
    Law Offices of John W. Countryman, of De Kalb, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

In this action by Commonwealth Edison Company under the Illinois Eminent Domain Act (Ill. Rev. Stat. 1979, ch. 47, par. 1 etseq.) to acquire perpetual easement rights in certain portions of a farm owned by Herman and Dora Danekas and to determine just compensation to be paid to defendants for such rights, a jury verdict was returned in the amount of $50,000 for the easement. A special verdict found no damage to the remainder. Defendant property owners appeal the judgment entered on this verdict.

On August 13, 1979, Commonwealth Edison Company (hereinafter Edison) filed a petition which in substance sought to condemn a perpetual easement in, on, over, along, across and through defendants’ property with rights of ingress and egress for the construction, operation and maintenance of a 345,000 volt (345 kv) electric transmission line together with any appurtenances and facilities necessary for the operation and maintenance thereof.

Edison had previously acquired a 150-foot-wide by 6,500-foot-long easement (hereinafter original easement) for a single electric transmission line, with five electric transmission towers, in 1972. The petition in the instant case was for the acquisition of an additional 100-foot width of easement adjoining the original easement along its northerly boundary. Edison’s exhibit B shows that the original easement and the additional easement at issue in the instant case comprise a 250-foot-wide band traversing part of a 681-acre farm owned by defendants Herman and Dora Danekas (hereinafter Danekas).

On September 26, 1979, Danekas filed a cross-petition alleging damage to the remainder of the property as a result of the taking and requesting assessment of damages to the remainder in the same proceedings.

Edison’s authority to acquire the easement was not contested in the proceedings; however, the issue of just compensation was contested. The jury award of $50,000 for the easement rights was very near the maximum estimate of damages offered at trial. These estimates ranged from Edison’s witnesses’ low estimate of $22,735 with no damage to the remainder to Danekas’ witnesses’ high estimate of $56,000 with damage to the remainder in the amount of $246,000.

On July 12,1978, which was prior to Edison’s filing its condemnation petition in the instant case, the Illinois Commerce Commission had granted Edison a certificate of convenience and necessity for construction, operation and maintenance of a 345 kv electric transmission line and related facilities and repairs. Edison’s trial exhibits all show Edison’s plan to construct a single electric transmission line, with eight single-shafted pole structures located approximately 900 feet apart. No wires would be closer than 29 feet above ground level. Edison’s evaluation witnesses based their evaluations on the limited use of the easement for a single electric transmission line, and each of these witnesses concluded that the remainder of the Danekas property was not damaged by the taking on the basis that the easement was limited to a single electric transmission line. In his opening statement and in his closing argument to the jury, Edison’s trial counsel verbally assured the jury that the easement would be limited to a single electric transmission line with eight ground structures.

Thirty-eight photographs showing the land and the existing transmission line easement a few months before trial were introduced into evidence at trial, and a photo of the single-shaft structure was also admitted. Also Edison’s exhibits A and B, a large aerial photo and a large plat showing the original easement strip as well as the new 100-foot proposed easement strip adjacent to the old easement, were shown to the jury. All of these items were allowed in the jury room during deliberations.

At the close of its cáse, Edison was permitted to read to the jury a “Unilateral Stipulation” in which Edison agreed to remain within the boundaries of its easement at all times, to restore the easement area after disturbance by Edison and to pay for any present and future crop damage as a result of Edison’s activities upon the easement.

After instructions, the jury deliberated and returned its verdict in the amount of $50,000 compensation for the new easement strip and found no damage to the remainder. Additionally, the jury answered a special interrogatory on the issue of damages to the remainder, the land outside the strip. The special findings were consistent with the general verdict.

The trial court entered a final judgment order granting Edison a perpetual easement in, on, over, along, across, and through the tract of land in question along with the right of ingress and egress therefrom “for the construction, operation and maintenance of a 345 kv electrical transmission line together with such additions, extensions, repairs, renewals, or improvements to changes and such electrical transmission lines which are, or may become, reasonably necessary,” the right to assign Edison’s easement rights to other authorized public utilities where “required by public convenience and necessity” and the authority to enter on the easement and use the property in accordance with the easement rights set out in the condemnation petition and the judgment order.

On appeal, Danekas asserts that the issue of just compensation for damage to the remainder was not properly put before the jury. Defendants claim that Edison acquired very broad and extensive easement rights, while the evidence put to the jury and the relevant instructions all concerned a much narrower and more limited easement. Therefore, Danekas requests this court to reverse the judgment and remand the cause to the lower court on the issue of just compensation.

Danekas first alleges that the trial court erred in allowing Edison’s evidence at trial because that evidence was at variance with the easement rights set forth in the petition for condemnation. Specifically, they contend that Edison received broadly described easement rights which were not limited to a single electric transmission line, while Edison’s evidence led the jury to believe that the easement was limited to a single line. Clearly, as Danekas asserts, a landowner is entitled to recover all of his damages caused by the taking of land from him by condemnation as well as that which may arise on account of construction and future operation by the condemnor upon the land taken. (McReynolds v. City of West Frankfort (1954), 3 Ill. App. 2d 406, 409-10.) It is Danekas’ position that Edison’s use of the broad easement granted was not limited to the initial proposed use and that the compensation awarded was, therefore, insufficient.

After reviewing the trial record and reading Edison’s petition for condemnation as a whole, it is clear that the easement sought was for the construction, operation and maintenance of a single 345 kv electric transmission line. Edison’s trial counsel consistently stated that they sought this limited easement. Although not required to do so, especially in the absence of a request by the property holder, Edison did present plans covering the proposed structure(s) to be erected on the property sought to be taken. (Sanitary District v. Johnson (1931), 343 Ill. 11, 16.) The testimony of Edison’s witnesses under oath that these plans represented the use to be made constituted a binding limitation upon the easement taken. 343 Ill. 11, 16.

However, language contained in the decretal portion of the judgment order, to wit: “together with such additions, extensions, repairs, renewals and improvements to changes and such electrical transmission lines which are, or may become, reasonably necessary,” can be fairly construed to grant a broader easement than that sought by petitioner or put before the jury. To the extent that such language is overly broad, it must be modified so that the easement granted is clearly limited to that shown by the evidence.

Second, defendant landowners Danekas argue that the trial court erred in refusing to permit them to proceed first at all stages of the trial. Where a condemnee claims damage to the remainder, it is his burden to introduce competent evidence of a reduction in value and to persuade the jury that there has, in fact, been a reduction in value of the remainder. (City of Chicago v. Provus (1953), 415 Ill. 618, 623.) Because they had the burden of proof on this issue, Danekas claim that they had the right to open and close and that it was not within the discretion of the court to limit or deny that right. Liptak v. Security Benefit Association (1932), 350 Ill. 614, 618.

Edison correctly responds to this argument by stating that the condemnees’ right to proceed first in an eminent domain proceeding is not absolute and requires affirmative action on the condemnees’ part, which was not present in the instant case. The Illinois Supreme Court has said that a landowner who files a cross-petition for damages to the remainder and desires to proceed first at all stages of the trial may file a timely motion to this effect prior to trial, or the court, in exercise of sound judicial discretion, may order him to so proceed. (Department of Business & Economic Development v. Brummel (1972), 52 Ill. 2d 538, 543.) Brummel also notes the prejudice inherent in an unexpected switch in role which the party was required to play in that case.

In the instant case, Danekas filed no motion for leave to proceed first in opening and closing at all stages of the proceeding until the date of trial. The court denied the motion as untimely because it was made after the cut off date for pretrial motions and because it would be unfair at that time to permit Danekas to do so. Although appellant Danekas claims that Edison would not have been prejudiced by the condemnees’ proceeding first, that is not so. As Edison’s trial counsel states, they were prepared to proceed first and taken by surprise by Danekas’ motion and had the witnesses ready and available for this first day of trial. The trial court properly denied Danekas’ oral motion immediately prior to the commencement of voir dire as untimely.

Third, Danekas contends that the trial court erred in refusing to permit trial counsel to be on the bus which transported the jurors to the subject property. Illinois statutes provide for a jury view of the premises in a condemnation proceeding at the request of either party (Ill. Rev. Stat. 1979, ch. 47, par. 9), and such a view did take place in this case although it is not clear whether the view was at the request of one of the parties or on the court’s own motion. Neither counsel made any objection to either the route to be taken or the stops to be made when these matters were discussed by counsel for both sides and the trial judge. The court informed counsel that they could ride with the deputy and get out and point out boundaries and other factors when the bus stopped. Danekas’ counsel requested to also be present on the bus stating:

“MR. GRAHAM [defense counsel]: No, I don’t want to point or talk. I just want to be in their presence from the time they leave the building until the time they return.
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MR. GRAHAM: * e ” I’ve had too many occasions when bus drivers make comments about what they observe enroute and I’ve had too many occasions when it’s been reported back matrons and bailiffs made comments and I prefer to be present at all times with the jury when there are bailiffs, bus drivers and other people present.”

The court agreed to properly admonish the jury, the bus driver, bailiffs and matrons, and the trial court denied Danekas’ counsel’s request.

The cases cited by Danekas in support of the alleged right to be present on the bus do state that the jury view of the premises is in the nature of evidence in an eminent domain proceeding (Sanitary District v. Johnson (1931), 343 Ill. 11,17), but neither the cases cited nor the statutes require that counsel be present during traveling time. Also, Danekas has failed to show that any prejudice or error occurred as a result of the inability of counsel to be on the bus. The trial court properly refused Danekas’ request.

Fourth, defendant landowners argue that the trial court erred in excluding evidence of the unsightliness of the proposed electric towers and the expense of farming around the towers after the easement was taken.

According to Illinois law, unsightliness is an improper element of damages. (Illinois Power Co. v. Wieland (1927), 324 Ill. 411, 414-15; Illinois Power & Light Corp. v. Peterson (1926), 322 Ill. 342.) Though Board of Trade Telegraph Co. v. Darst (1901), 192 Ill. 47, 50, cited by Danekas, does stand for the proposition that unsightliness is a proper element of damage, this language is characterized as dicta and criticized as being out of harmony with both previous and subsequent decisions of the court in Illinois Power Co. v. Wieland (1927), 324 Ill. 411, 414-15. The other cases cited by Danekas in support of his position concern a limited exception to the general rule; this exception allows unsightliness as a proper element where there is evidence that the highest and best use of the remainder is for home sites. (Central Illinois Public Service Co. v. Westervelt (1977), 67 Ill. 2d 207, 211-12, cert, denied (1978), 434 U.S. 1070, 55 L. Ed. 2d 772, 98 S. Ct. 1252; Sanitary District v. Baumbach (1915), 270 Ill. 128, 133-34.) Because there is no evidence in the instant case that the highest and best use of the subject property was for residential purposes, this narrow exception is inapplicable. The court properly excluded evidence of unsightliness of the towers as an element of damage.

Danekas next contends that inconvenience in farming because of the obstruction caused by the existence of the towers on the ground is a proper element of damages. (Central Illinois Public Service Co. v. Lee (1951), 409 Ill. 19, 25; Illinois Iowa Power Co. v. Rhein (1938), 369 Ill. 584, 593-94; Illinois Power & Light Corp. v. Barnett (1930), 338 Ill. 499, 502; Illinois Power & Light Corp. v. Talbott (1926), 321 Ill. 538, 551.) It is Danekas’ theory that evidence of the expense of farming should have been admitted because it bears on the price that a willing buyer will pay for an operating grain farm. However, the issue at hand in these proceedings was whether or not the market value of the property was diminished by the imposition of the easement (Illinois Power & Light Corp. v. Talbott (1926), 321 Ill. 538, 544-45, 551), and the questions as posed by Danekas’ trial counsel related to the cost of farming rather than the depreciation or diminution in value of the remainder for farm purposes. When defendant Herman Danekas testified as an evaluation witness, he was allowed to state that the presence of the towers was taken into consideration in fixing a value on the depreciation of the property. The court correctly allowed consideration of the cost of farming in the presence of the proposed towers when that consideration was properly phrased as an element in diminution of value of the remainder and correctly excluded its consideration where testimony on that issue was not related to the question of depreciation of the land not taken.

Danekas next argues that the trial court committed reversible error in denying defendant Herman Danekas the right to consult with his trial counsel during part of the trial. During the course of Herman Danekas’ direct testimony as a valuation witness, the court called a brief lunch recess and granted Edison’s request that Herman Danekas not discuss the testimony with his counsel over lunch. In the cases cited by Danekas, the right to consult with an attorney before and during the trial is an inherent part of the right to counsel and cannot be denied by the trial court in criminal trials. “[T]he right of a party to counsel in a civil case is quite divergent from the right of defendant in a criminal prosecution.” (Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1978), 61 Ill. App. 3d 636, 647.) The Stocker court is quick to point out “that the trial court [does not have] unlimited rights in this type of situation in a civil case [and that] [t]here may possibly be circumstances in civil cases in which extreme orders by a trial court regarding communication between lawyer and client would result in prejudicial error.” 61 Ill. App. 3d 636, 647.

Just as the Stocker court found no prejudice in that case, counsel for the appellant in the instant case has not shown any prejudice resulting from the court’s ruling. Danekas has not pointed out any instance in which the ruling of the court forbidding consultation between Herman Danekas and his attorney during the lunch recess in any way hampered counsel from fully discharging his duties toward his client. (Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1978), 61 Ill. App. 3d 636, 648.) Therefore, we find that the court’s imposition of a limitation on Herman Danekas’ right to consult with his attorney does not constitute reversible error.

Danekas next asserts that the trial court erred in refusing to allow evidence of the sale of similar property. The testimony of defendants’ evaluation witness, a farm auctioneer, was allowed insofar as it tended to establish the witnesses’ qualifications by showing that he had been the auctioneer at the sale. However, evidence as to price was not admitted. On appeal, Edison contends that Danekas failed to establish the proper foundation as to the properties’ similarities with the subject property. Regarding the subject of admission of this type of evidence, the Illinois Supreme Court has said:

“To aid in establishing ° * e value, this court has consistently held that evidence of voluntary sales of similar parcels occurring in the same vicinity at or about the time of filing are admissible unless such proof causes a confusion of issues which offsets the benefits to be derived therefrom. [Citations.] No general rule can be laid down regarding the degree of similarity which must exist between property sold and that condemned in order to make evidence of such sale proper. Since no two pieces of real estate are exactly alike and since economic influences are constantly changing, the admission of such proof rests largely in the discretion of the trial court, and its decision will be reversed only where such discretion has been clearly abused. [Citations.]” (City of Chicago v. Blanton (1958), 15 Ill. 2d 198, 202-03.)

The only information about the purportedly similar property was that it was within another county, that there were two 160-acre and one 80-acre parcels sold and that the whole 400 acres had been used as a grain farm at the time the auction was held. Defendant made no additional offer of proof to further establish similarity. On the basis of the information before the court at the time of the ruling in question, the court did not abuse its discretion in excluding the evidence.

Danekas’ next area of objection concerns the “Unilateral Stipulation” which Edison read to the jury during the trial. By the terms of that stipulation Edison agreed to restrict its entry on the property to easement purposes, to restore the easement area after disturbance and to pay for present and future crop damage. At the close of the trial, the court gave Illinois Pattern Jury Instructions, Civil, No. 300.52 (2d ed. 1971) (hereinafter cited as IPI Civil) over defendants’ objections:

“The stipulation made by the plaintiff and read to you is a binding obligation which Commonwealth Edison Company must perform. You are not to allow damages because of any possibility that the stipulation might not be performed.”

Defendants claim that the stipulation concerned damages which were not proper subject matter for jury consideration and served only to confuse the jury concerning the issue of damages. Additionally, they maintain, the court failed to cure this confusion by refusing to give defendants’ instruction No. 21, which informed the jury that the damages referred to in the “Unilateral Stipulation” did not include any damages to the remainder caused by the present or future use of the easement by Edison.

Edison is entitled to file a stipulation in open court in condemnation proceedings in which it agreed to do certain things which limit its use and reduce property damage, and it is bound by such stipulation. (Midwestern Gas Transmission Co. v. Mason (1964), 31 Ill. 2d 340, 343, appeal dismissed, cert, denied (1965), 380 U.S. 124, 13 L. Ed. 2d 792, 85 S. Ct. 806; East Peoria Sanitary District v. Toledo Peoria & Western R.R. (1933), 353 Ill. 296, 305.) The language of the stipulation itself is clear, and it lacks any potential to confuse the jury on the issue of damages. The issue of damages, both as to the property taken and to the remainder, were properly put before the jury. Danekas’ instruction No. 21, which the court refused, contains the same principles basically contained in other instructions given, and the instructions given correctly state the law so that the trial court properly refused the tendered instruction. City of Chicago v. Provus (1953), 415 Ill. 618, 625.

Danekas’ last objection also concerns jury instructions. The basis of his objection is that several instructions, given over defendants’ objection, instructed that the word “easement” as used by the court in the proceedings meant the right to use the Danekas property for a “particular purpose” (e.g., IPI Civil No. 300.87), that is, for a single electric transmission line. As discussed previously, defendants Danekas maintain that this limitation was contrary to the petition for condemnation and totally inconsistent with the final judgment order, which, defendant landowners maintain, called for and granted a much broader easement. We have determined that Edison sought to acquire no more than an easement for a 345 kv electric transmission line, and the judgment order as we propose to modify it will so limit the easement. Defendants’ assignment of error regarding instructions concerning the limited easement must therefore be rejected.

The jury in the instant case found the compensation for the easement strip actually taken to be near the maximum of the range offered by defendant landowners’ witnesses, while they agreed with Edison’s contention that no damage to the remainder resulted by imposing an additional easement abutting the existing easement. Discussing damage awards in condemnation cases, the Illinois Supreme Court has said:

“In our consideration of condemnation cases, we have held that where testimony as to values is conflicting and the jury, having viewed the premises, returns a verdict within the range of the testimony, the award will not be disturbed unless there is something in the record which shows that the verdict was a clear and palpable mistake or the result of passion and prejudice, or unless there was some erroneous ruling which might have misled the jury. [Citations.]” Union Electric Power Co. v. Sauget (1953), 1 Ill. 2d 125, 131. Accord, City of Chicago v. Provus (1953), 415 Ill. 618, 623.

The jury in this case awarded compensation for the construction, operation and maintenance of a 345 kv electric transmission line, and that award is supported by the record. As we have stated earlier in this opinion, the language of the decretal portion of the judgment order is overly broad and must, therefore, be clarified and made more restrictive. The decretal portion of the judgment order of the trial court entered December 31,1980, is, therefore, modified to read as follows:

IT IS THEREFORE ORDERED that upon payment by the Petitioner to the County Treasurer of Ogle County, pursuant to Ill. Rev. Stat. Ch. 47, Sec. 14 (1979), within sixty (60) days of the date of entry of this Judgment Order of the sum of Fifty Thousand and no/100 ($50,000.00) Dollars previously adjudged to be full just compensation for the imposition of the easement rights on the premises legally described as:
A strip of land 100 feet in width lying Northwesterly of and adjoining the Northwesterly line of the Commonwealth Edison Company right-of-way in the North half of Section 21, Township 42 North, Range 1 East of the Third Principal Meridian, Ogle County, Illinois, as said right-of-way is described in a certain grant dated July 20, 1967 and recorded August 3,1967 in the office of the Recorder of Ogle County, Illinois, as Document No. 385778.
ALSO
A strip of land 100 feet in width lying Northwesterly of and adjoining the Northwesterly line of the Commonwealth Edison Company right-of-way in the Southwest Quarter of Section 15 and the Northwest Quarter of Section 22, as said right-of-way is described in a certain grant dated July 25, 1968 in the Recorder’s Office of Ogle county, Illinois, as Document No. 392236, all in Township 42 North, Range 1 East of the Third Principal Meridian, Ogle County, Illinois,
the Petitioner, Commonwealth Edison Company, an Illinois corporation, shall thereupon be vested with a perpetual easement in, on, over, along, across and through the tract of land heretofore described as the easement strip in this Judgment Order with the right of ingress thereto and egress therefrom, free and clear of all liens, judgments and claims of every kind and character for the construction of a 345 kv electric transmission line and any appurtenances and facilities necessary for its operation and maintenance as shown by the proofs herein, together with the right to operate and maintain the same, and that said perpetual easement be assignable by the Petitioner to other authorized public utilities in such manner as may from time to time be required by public convenience and necessity and thereupon, said Petitioner, Commonwealth Edison Company, shall be authorized and empowered to enter upon the aforedescribed easement and to use said property in accordance with the easement rights granted herein.

As modified herein, the judgment order of the trial court entered December 31,1980, is affirmed.

Affirmed as modified.

SEIDENFELD, P. J., and LINDBERG, J„ concur.


author:
JUSTICE ALLOY
      JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY MARTIN WITANOWSKI, Defendant-Appellant.—THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ONE 1976 DODGE COLT 2-DOOR VIN. NO. 6M21K69109930 GREGORY MARTIN WITANOWSKI, Defendant-Appellant.
    Third District
    Nos. 81-434, 81-418 cons.
    Opinion filed March 11, 1982.

      Ronald E. Boyer, of Fleming, Boyer & Strough, of Watseka, for appellant.
    Tony L. Brasel, State’s Attorney, of Watseka (Gale C. Coil, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

The defendant, Gregory Witanowski, appeals from his convictions for aggravated battery and unlawful possession of cannabis. He also appeals from the judgment of forfeiture on his automobile, based upon his conviction of the unlawful possession of cannabis (Ill. Rev. Stat. 1979, ch. 56/2, par. 704(d)). Guilty verdicts on three counts of aggravated battery were returned by the jury, and the court entered a guilty verdict on the unlawful possession charge, the defendant having waived the jury on that charge. The defendant was then sentenced to two years’ probation, fined $1,825, and ordered to make restitution to the police officers for their medical expenses, being $259.45. The defendant’s automobile, found to have been knowingly used in the commission of the unlawful possession offense, was ordered forfeited. Three issues are raised on this appeal: (1) whether the court committed reversible error in giving Illinois Pattern Instructions, Criminal, No. 24.20 (1968) (hereinafter cited as IPI) over defendant’s objection; (2) whether the trial court erred in denying the motion to suppress the cannabis; and (3) whether the State sufficiently proved chain of custody so as to allow the cannabis into evidence. We affirm.

In pertinent part, the record reveals that on December 30, 1979, the defendant was traveling on Interstate 57 in Iroquois County. State Trooper Buhrmester began following the defendant’s auto, for the purpose of determining its speed. The trooper, who was in an unmarked auto, gauged the defendant’s speed at 65 miles per hour. Both autos then passed another unmarked police vehicle. In that second police auto was Trooper Muensterman, who with his radar gun clocked the defendant’s speed at 65 miles per hour. The police vehicles in pursuit then activated their red lights and attempted to stop the defendant’s auto, for the purpose of arresting him for speeding. He did not respond or slow down. Buhrmester then pulled his auto alongside the defendant’s and motioned for the defendant to stop. He did not. The trooper then again positioned his auto alongside the defendant’s and pointed his service revolver at the defendant. The trooper was in uniform. The defendant thereupon accelerated to a speed of approximately 95 miles per hour and a chase ensued. Two police vehicles attempted to stop the defendant in his auto but were unsuccessful. On two occasions they managed to stop the vehicle, whereupon they exited their autos and began to approach the defendant’s auto. Each time the defendant then maneuvered his auto around their stopped vehicles and pulled back onto the interstate at a high rate of speed. The chase continued after those unsuccessful attempts to stop the defendant and arrest him. It lasted for a number of miles along the interstate before the State troopers, through the use of a rolling roadblock, were able to finally stop the defendant’s auto. The auto was stopped in a driving lane of southbound 1-57. The police approached, in uniform, but the defendant refused to exit his locked auto. He unlocked the door only after the troopers approached with a crowbar for the purpose of prying open the door. The officers were attempting to remove the defendant from his auto when a struggle ensued. During the struggle both officers received bite wounds from the defendant, which later required emergency treatment. The defendant managed to break loose from the officers, and he ran across the median to approach a stopped auto. With the arrival of another squad car, the defendant permitted himself to be handcuffed. He was then placed in a police vehicle. Other officers had by that time arrived on the scene, and considerable bystanders had stopped to observe.

During the struggle, Officer Buhrmester was obliged to get into the auto of defendant to take it out of gear, for the auto was rolling backwards and was still in gear. The engine continued to run, and the auto remained in the lane of the interstate highway.

Buhrmester later returned to defendant’s auto, after the defendant had been subdued, for the purpose of looking for any weapons or dangerous items and for the purpose of discovering evidence which might explain the defendant’s bizarre and erratic behavior. He saw in plain view on the back floor a brown paper bag, open at the top, containing a clear plastic bag which contained a green, leafy material. Another officer, Trooper Luman, who had arrived at the scene, also observed from the outside of the vehicle a hand-rolled cigarette, partly burned, and a leafy material with seeds, in plain view within the auto. Buhrmester pointed out the brown bag to Luman who, after conferring with his supervisor, confiscated the hand-rolled cigarette and the brown bag from the defendant’s auto. It was later established that the brown bag contained cannabis. The seizure of the brown bag and the partly burned, hand-rolled cigarette was without a warrant and without the defendant’s consent. On the basis of the evidence, the court denied the defense motion to suppress the cannabis. In so finding, the court stressed that the defendant’s behavior prior to arrest was bizarre and erratic and that the officers were justified in entering the vehicle for the purpose of removing it from the driving lane of a busy interstate highway. The court further relied upon various exceptions to the warrant requirement, including the plain-view doctrine, to sustain its denial of the suppression motion.

At the trial, evidence of a similar nature was admitted concerning the circumstances of the arrest. Numerous other officers also testified concerning the chain of custody of the cannabis, after its seizure. We need not detail that testimony at this time.

We also note that the defendant testified at trial. His version and explanation of the circumstances of the events on that day was that he did not know, initially, that his pursuers were police officers. He stated he was fearful when one of the officers brandished a gun and that he accelerated to get away from them. Though admitting to having seen their uniforms, the defendant testified he refused the officer’s demands to exit his car until they provided proper identification. He also testified that the officers pulled him from his auto and began kicking him. He testified that he bit the officers in defense of his person, in response to the beating they administered. We would note that both the court, in its suppression denial order and opinion, and the jury, by its verdicts, adopted the officers’ version of what transpired on the highway that day. Those findings are supported amply by the evidence in the record and we take them as true for the purposes of this appeal.

Following presentation of the evidence, a jury instructions conference was held. The defense objected to People’s Instruction No. 10, which read:

“A person is not authorized to use force to resist an arrest which he knows is being made by a peace officer, even if he believes that the arrest is unlawful and the arrest in fact is unlawful.”

This is pattern instruction No. 24.20, from IPI Criminal Instructions. It was given over defense objection. A defense attempt to modify 24.20 so as to inform the jury that a person is justified in using force to the extent necessary to defend himself against excessive force by a police officer was rejected by the trial court. However, the aggravated battery instruction (IPI Criminal No. 11.09) was modified at defense request to include an element that the jury must find that the defendant did not reasonably believe the force he used was necessary to protect himself from unreasonable force in order to convict. The instruction, as modified, was given.

The jury returned guilty verdicts on three counts of aggravated battery and the court, hearing the unlawful-possession-of-cannabis charge without a jury, returned a guilty verdict on that charge. Thereafter, the auto used in the possession-of-cannabis case was ordered forfeited.

The first issue raised by the defendant is whether the court committed reversible error in instructing the jury with IPI Criminal No. 24.20, set forth above. The defense argues that the evidence in the case did not support giving the instruction and that the instruction was highly prejudicial to the defendant. The defendant correctly notes that a private person does have a right to defend himself against a police officer who uses excessive force (People v. Athey (1976), 43 Ill. App. 3d 261, 356 N.E.2d 1332). He then argues that the evidence in the case raised an issue of excessive force and that he was prejudiced in such defense by the use of IPI Criminal No. 24.20. We disagree. Of course, in addressing issues raised with respect to specific instructions, the reviewing courts are obliged to examine the instructions as a whole, to determine whether the jury was adequately and properly instructed. In the instant case, the evidence presented warranted the use of IPI Criminal No. 24.20, for there was evidence that the defendant resisted arrest at a time when he knew the arrest was being made by a peace officer. The defendant was charged with aggravated battery, as a result of his resistance to the arresting officers. Under similar facts and circumstances, the use of this instruction was upheld by the court in People v. Paez (1977), 45 Ill. App. 3d 349, 359 N.E.2d 1083. There, as here, the defendant’s resistance came while the officers were attempting to make an arrest, and there, as here, the defendant claimed that the arresting officers overreacted so as to justify the defendant in defending himself. The court, in concluding no prejudicial error was committed by the use of the instruction, stated:

“A necessary element of the crime of aggravated assault against a police officer who is in the course of effecting an arrest is that the defendant act without legal justification. [Citation.] In a trial which involves the offense of aggravated battery against a peace officer attempting to effect an arrest it is not prejudicial error to instruct on the lack of legal justification for using force to resist the arrest when the instruction is relevant based on the facts adduced at the trial. [Citation.]” (45 Ill. App. 3d 349, 351. See also People v. Taylor (1977), 53 Ill. App. 3d 810, 818-19, 368 N.E.2d 950.)

We find that the facts in the instant case warranted the use of instruction No. 24.20, and that there was no reversible error in its use. The defense reliance upon People v. McCauley (1972), 2 Ill. App. 3d 734, 277 N.E.2d 541, in which error was found in the giving of this instruction, is misplaced. In McCauley, as the court noted in Paez when distinguishing it, there was no evidence of resisting arrest so as to justify the giving of the instruction. 45 Ill. App. 3d 349, 351.

Nor do we think that the instruction deprived the defendant of his excessive force defense. The jury was apprised of the substance of that defense and the law thereon by way of the modification of the aggravated battery instruction. The issues instructions, as modified by the defense, informed the jury that in order to find the defendant guilty, it must find that the defendant did not reasonably believe the force he used was necessary to protect him from unreasonable force. The instruction was given to the jury, and the defense argued the defense to the jury. The jurors, on the instructions as a whole, were informed that the defendant was not to be found guilty if they found that he reasonably believed his conduct was necessary to protect himself from the officers’ unreasonable force, but that if the defendant’s actions stemmed from an intent to resist arrest, the defendant could be found guilty. The defendant was not deprived of his defense. While we may have chosen a different manner of instructing the jury on these issues, those given by the trial court, viewed as a whole, adequately and properly stated the law to be applied, and we find no reversible error in the giving of IPI Criminal No. 24.20.

The next issue raised by the defendant is whether the court erred in denying his motion to suppress the cannabis confiscated from the automobile after his arrest on the highway. The defense contends that the warrantless search of his auto and the seizure of the bag of cannabis were violative of his fourth amendment rights. It is axiomatic in this tangled area of the law that each case must be decided upon its own facts and circumstances, and the present case amply demonstrates the wisdom of the rule. (People v. Kelly (1979), 76 Ill. App. 3d 80, 394 N.E.2d 739.) The question in determining the validity of a search is reasonableness, based upon circumstances facing the officers at the time. (People v. McKnight (1968), 39 Ill. 2d 577, 237 N.E.2d 488; People v. Ledwa (1980), 81 Ill. App. 3d 276, 401 N.E.2d 298.) The facts and circumstances in the case at bar show exigencies facing the officers immediately after the arrest of the defendant which render the subsequent warrantless search reasonable. The defendant had exhibited bizarre and unusually dangerous behavior prior to his arrest. He had led the officers on a high speed automobile chase over a number of miles of Interstate 57. On two occasions, after having been forced to stop by the officers, he had then evaded arrest by re-entering the highway after maneuvering around the police blockage. His resistance to arrest continued when he was finally stopped a third time, for he refused to exit his auto. Once the door was opened, upon threat of forcible entry, the defendant proceeded to struggle with the officers attempting to handcuff him and put him under arrest. Then he ran across the median of the highway and attempted to communicate with the occupants of autos stopped there. He was finally arrested and put in a squad car. His auto, however, remained running and stood in one of the southbound lanes of Interstate 57. Bystanders had stopped to observe the goings on, and traffic was moderate to heavy. Under all of the circumstances known to them at the time, the officers were justified in entering the defendant’s auto, for the purpose of removing it from the highway and for the purpose of looking for a weapon, other dangerous items, or evidence to explain the defendant’s actions. The defendant had exhibited behavior indicating something more serious than a mere speeding violation. His repeated attempts to flee and his resisting arrest could reasonably have raised a legitimate suspicion in the officers’ minds that more was involved than a traffic violation. The defendant had vigorously attempted to escape arrest and then had refused to leave his auto. Added to these facts is his action in running to persons who had stopped their autos across the highway median, for the purpose of communicating with them. On these facts and circumstances, the officers were justified in believing that the defendant had something to hide, whether it be contraband, a weapon or other item, and that it was contained in the auto. Furthermore, with his actions in running to other persons, the police may well have feared that he had friends or accomplices nearby. Given the circumstances, such beliefs would have been reasonable and justified. Also to be noted, in considering the exigencies presented to the officers, is the fact that the car was still in a lane of interstate traffic and there were a number of bystanders nearby. We find that the warrantless search was reasonable in an attempt to secure an explanation for the defendant’s behavior, in an attempt to preserve evidence, and in an attempt to locate weapons and thereby protect the public. Even assuming, arguendo, these grounds not to apply, the search and seizure was reasonable, because the evidence seized was in plain view on the floor behind the seat. (People v. Epperley (1975), 33 Ill. App. 3d 886, 888, 338 N.E.2d 581.) The officer was justified in entering the car to remove it from the highway and therein he could observe a bag, open at the top, containing a green leafy substance. Also observed, by another officer, from the outside of the auto, was a handrolled cigarette and a number of seeds. Given the testimony of the officer’s experience with cannabis and the evidence of the defendant’s bizarre highway antics, the officers were justified in believing that the green leafy substance in the bag was cannabis. The contraband was in plain view and thereby subject to seizure. We note, in this regard, that we are not confronted with a closed container in this case.

For the reasons above stated, we find that the warrantless search of the defendant’s auto on the highway and seizure of the bag of cannabis were reasonable and that the court did not err in denying the defense motion to suppress the evidence obtained from that search.

The final issue is whether the State adequately proved the chain of custody over the cannabis, so as to support its introduction into evidence as an exhibit against the defendant. We find that the State met its burden of showing a chain of custody. There is no dispute that the State has a burden of showing a continuous chain of possession over the contraband in order to establish the proper foundation for admitting it into evidence. (People v. Cain (1966), 35 Ill. 2d 184, 188, 220 N.E.2d 195.) In the instant case, the State presented all those persons who had possession or control over the contraband, from the officer conducting the search on the highway, to his superior, to the evidence officer at the station, to the delivery officer, and finally to the lab man. All of these witnesses testified that the exhibit produced at the trial was the same as that which they had under their control or in their possession. Several noted their identifying marks on the exhibit. There was no evidence of alteration, tampering or other improper activity with respect to the evidence. While there is some discrepancy in the testimony as to the date the evidence went into the evidence locker, and while there was a brief time others could have had access, the defense presented nothing to affirmatively indicate any tampering, alteration or substitution. It has been held that in showing a sufficient chain of custody the State is not required to exclude all possibility of tampering. It is sufficient, absent a tangible suggestion of tampering or substitution, to prove a reasonable probability that the evidence has not been changed in any important respect. (People v. Rhoades (1979), 74 Ill. App. 3d 247, 252, 392 N.E.2d 923.) As already noted, a number of officers testified that the evidence was the same as when they had possession and control over it. Also, as noted, no evidence of tampering or substitution was presented or suggested. Under circumstances presented, then, we find the State met its burden of showing a chain of custody. There was no error in admitting the evidence at trial. People v. Rhoades; People v. Spear (1975), 24 Ill. App. 3d 818, 321 N.E.2d 705; People v. Hines (1971), 131 Ill. App. 2d 638, 267 N.E.2d 696.

In summary, we find that there was no reversible error in the instructions and that the evidence, specifically the cannabis, was properly admitted at trial. Accordingly, the defendant’s convictions are affirmed, as is the forfeiture of his auto.

Affirmed.

HEIPLE, J., concurs.

JUSTICE STOUDER,

concurring in part and dissenting in part:

I agree with my colleagues in that portion of the opinion relating to the conviction of the defendant for the possession of marijuana, and I join with them in affirming such conviction. However, I believe the trial court erred in giving the instruction objected to by the defendant which ruling is approved by the majority, and consequently I believe the defendant is entitled to a new trial on the battery charges, and consistent with such remandment I would vacate all sentences and remand for further consideration depending on the outcome of the new trial.

For my purposes the facts are adequately stated in the majority opinion. The gist of the charges was the defendant committed batteries on peace officers knowing them to be peace officers in the execution of their duties. His defense in substance was that of self-defense, the use of force in opposing the unreasonable use of force by peace officers. The testimony of the peace officers and that of the defendant were in substantial agreement on many aspects of the occurrence and in substantial disagreement on others. It was this dispute which the jury was required to resolve, and if the jury was properly instructed, the parties tend to agree either guilt or acquittal would be proper verdicts depending on how the jury resolved the controverted issues of fact.

The instruction in dispute, IPI Criminal No. 24.20 (included in the 1981 revision without significant change), provides:

“A person is not authorized to use force to resist an arrest which he knows is being made by a peace officer, even if he believes that the arrest is unlawful and the arrest in fact is unlawful.”

This instruction is substantially a restatement of section 7 — 7(a) of the Criminal Code (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 7(a)). This subsection is one of numerous subsections under the general title of the article “Justifiable Use of Force; Exoneration.”

The right of a peace officer to use reasonable force in the arrest of an offender or the prevention of his escape is described in section 7 — 5(a) and (b) of the Criminal Code (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 5(a), (b)). Section 7 — 7(a), the section of the statute which as I have suggested earlier is the basis of the instruction in question, is described in the Committee Comments in Smith-Hurd Illinois Annotated Statutes as “* * * a corollary to the justification accorded to an officer or deputy in using force to make an arrest, even if the arrest, without his knowledge, is unlawful: the person arrested is not privileged to resist the arrest with force. This provision is a deterrent to the resort to force by such a person, upon his own conclusion that the arrest is unlawful, in preference to the use of the methods provided by law for obtaining his release and redress for the unlawful arrest. 0 6 *.” (Ill. Ann. Stat., ch. 38, par. 7 — 7(a), Committee Comments, at 422 (Smith-Hurd 1972).) This rule is of fairly recent origin. See, e.g., People v. Doody (1931), 343 Ill. 194, 175 N.E. 436, where the legality of the arrest is required to be shown in the case of a defendant charged with homicide of a peace officer attempting to arrest the defendant without a warrant.

By describing section 7 — 7(a) as a corollary to section 7 — 5, an observation which is confirmed by the language of the two sections, the interdependence of the sections is demonstrated. Under some circumstances section 7 — 7(a) may be regarded as a general rule modified in some respects by the provisions of section 7 — 5. For example, the authorization to use reasonable force to effect an arrest included in 7 — 5(a) also requires in subsection (b) that the peace officer believe the arrest to be lawful. No such limitation appears in section 7 — 7(a), and if the literal language of 7 — 7(a) were applied the belief of the peace officer would be immaterial. (See People v. Young (1968), 100 Ill. App. 2d 20, 241 N.E.2d 587.) Both the parties and the majority of the court agree no issue concerning probable cause for making a lawful arrest was raised at trial. Yet, the instruction No. 24.20 is justified by the majority in large measure because it supports that part of the charge that defendant’s conduct was without legal justification. Since no issue concerning the lack of probable cause for making the arrest was raised and since the use of some force by the peace officers was admitted as a part of their testimony, section 7 — 7(a) and the instruction based thereon were inapplicable to the facts. An instruction based on section 7 — 5 covering the right of the peace officers to use reasonable force not only would have been applicable to the facts but would have avoided interjecting into the case two other irrelevant issues, namely, the defendant committed the offense of resisting arrest, an offense for which he was not charged, and the ambiguity surrounding the prohibition against opposing an unlawful arrest. As a term of art, an unlawful arrest may.refer to the absence of legal cause for making the arrest, but it may also include the method of executing the arrest. By making no exception to the unlawfulness which the offender is prohibited from opposing, this instruction justifies both unlawful cause as well as means. I am very well aware of the rule that says instructions should be considered as a whole, and this is the rule which the majority has relied on to avoid the adverse consequences of the instruction having been given. By relying on the rule there is at least an implicit recognition the instruction in question is inadequate or objectionable in some respect, but other instructions are deemed to have controlled or obviated the unfavorable effect. As applied to the instruction in question, I do not see how the other instructions can have the curative effect claimed. The instruction purports to prohibit a defendant from opposing any arrest even if the arrest be unlawful without in any way suggesting that an arrest may be executed by unlawful means such as the unreasonable use of force which the defendant is not prohibited from opposing. Even though the issues instructions were modified to ameliorate the effect somewhat, the fact remains that this instruction was contrary to the issues instructions and in effect left the jury free to select and choose which rule it thought it ought to apply.

I believe the foregoing observations amply support the further comment by the drafters of the Criminal Code when, as a further comment to section 7 — 7(a) in Smith-Hurd Annotated Statutes, they observe that section 7 — 7(a)

“* ° 0 does not apply to the situation in which the officer uses excessive force: whether the arrest is lawful or unlawful, the officer’s use of excessive force invokes the right of self-defense in Section 7 — 1.” Ill. Ann. Stat., ch. 38, par. 7 — 7(a), Committee Comments, at 422-23 (Smith-Hurd 1972).

This brings me to a consideration of the two cases which have previously considered this instruction, People v. McCauley (1972), 2 Ill. App. 3d 734, 277 N.E.2d 541, holding the instruction erroneous, and People v. Paez (1977), 45 Ill. App. 3d 349, 351, 359 N.E.2d 1083, approving the instruction. In declining to follow the result in McCauley the court in Paez relied on differences in facts which it believes justifies a difference in result. Even in its own terms it is difficult to understand why a distinction should exist. In Paez the court observed, “It is, of course, error to interject irrelevant issues into jury deliberations and to instruct as to crimes not charged. (People v. McCauley, 2 Ill. App. 3d 734, 736 (1972).)” Notwithstanding this declaration, the court in Paez approved the instruction which it believed did refer to a crime not charged, and it did so without any special limitation on the principle which it initially announced and approved. What Paez does say is that perhaps there is a difference in whether the instruction should be given depending on the stage of the arrest, distinguishing between the stage of the arrest where the offender is being transported and where he is being initially apprehended. In terms of using force to oppose an arrest I see no difference. In terms of resisting an arrest as an offense no cases are cited which support the court’s distinctions. The two cases cited by the Paez case, People v. Gnatz (1972), 8 Ill. App. 3d 396, 290 N.E.2d 392, and People v. Brown (1974), 18 Ill. App. 3d 1049, 310 N.E.2d 498, are of little support for the result reached. Even though neither the Paez nor McCauley case address the essential problem created by this instruction as applied to the use of force to resist unreasonable force, I think the McCauley result is the more appropriate one, and I am not persuaded by Paez that a contrary result is warranted.

In summary, I believe the instruction was improperly given because it was inapplicable to any theory supported by the facts and further that it prejudicially deprived defendant of a fair trial.


author: JUSTICE HOPE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN J. McDONNELL, Defendant-Appellee.
    Second District
    No. 81-269
    Opinion filed January 22, 1982.
    Rehearing denied April 20, 1982. — Revised opinion filed April 20, 1982.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and William L. Browers, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Patrick A. Tuite, Ltd., and Cornelia Honchar Tuite, both of Chicago, for appellee.
   JUSTICE HOPE

delivered the opinion of the court:

Defendant John J. McDonnell was charged with one misdemeanor and four traffic offenses on March 12, 1980. He subsequently filed a motion to bar the testimony of the arresting officers, alleging their testimony was rendered incompetent because they were compensated on a basis other than that of time in contravention of statute (Ill. Rev. Stat. 1979, ch. 111, par. 2701). The circuit court of Lake County granted defendant’s motion to bar testimony, and the State appeals from that order.

Defendant was charged with obstructing a police officer, disobeying a police officer, improper lane usage, driving under the influence of intoxicating liquor and violation of a minimum speed regulation. Soon after he was arrested he filed a motion to suppress the testimony of the two arresting officers. This motion stated that during preparation for trial the defendant learned that District Fifteen of the Illinois State Police has a written policy which states in pertinent part: “that for every 10 DWI arrests made by an officer, he/she will receive one 510 day from the D-15 commander.” A “510 day” is a day off with full pay. Defendant’s motion argues that this policy was violative of a relatively obscure statute that rendered the policeman’s testimony inadmissible. The circuit court granted defendant’s motion to suppress and bar testimony on the basis of this statute and due process considerations.

The statute in issue states in its entirety:

“An Act in relation to the employment of detectives or investigators by public officials. 0 * °
§1. No State, county or municipal officer, whose duty it is to investigate the commission of any crime or to prosecute persons accused of crime, shall employ any detective or investigator on a compensation basis other than that of time, and in no event shall compensation to such persons be contingent on the success of the investigation or prosecution. Evidence obtained in violation of this Act shall be inadmissible in any court in this State for any purpose and any person employed in violation of this Act shall be incompetent to testify in any such court as to any information or evidence acquired by him in such employment.” Ill. Rev. Stat. 1979, ch. Ill, par. 2701.

The trial court specifically found that section 1 of “An Act in relation to the employment of detectives or investigators by public officials” (Ill. Rev. Stat. 1979, ch. 111, par. 2701) (hereinafter section 1) applies to Illinois State troopers, and that a trooper receiving one day off for every 10 arrests for driving under the influence is being “compensated” within the meaning of the statute. The policy of District Fifteen of allowing one day off with full pay for every 10 DWI arrests was found by the court to be violative of section 1, and the court granted defendant’s motion to suppress the testimony of the State troopers and disallowed any evidence obtained as a result of that arrest.

Section 1 has a history of being closely linked with “An Act to provide for Licensing and Regulating Detectives ° * *” (Ill. Rev. Stat. 1979, ch. Ill, par. 2601 etseq.). For example, section 1, along with the provisions of “An Act to provide for Licensing and Regulating Detectives * * (Ill. Rev. Stat. 1965, ch. 38, par. 201 — 1 et seq.), used to be a part of the supplementary provisions of chapter 38 of the Illinois Revised Statutes (Ill. Rev. Stat. 1965, ch. 38, par. 201 — 51).

At present, section 2 of “An Act to provide for Licensing and Regulating Detectives # * *” (Ill. Rev. Stat. 1979, ch. Ill, par. 2602) specifically states that “[t]he provisions of this Act shall not apply to any detective or officer belonging to the police force of the state # We think that exemption for police officers is applicable to section 1 as well.

The State urges that section 1 of “An Act to provide for Licensing and Regulating Detectives # * *” (Ill. Rev. Stat. 1979, ch. Ill, par. 2601), also in the Professions and Occupations chapter, is indicative of the scope of section 1. This section begins with the phrase “The private detective business ° and the State urges that this is an indication that it was not intended to include State police officers. We agree. We are of the opinion that the legislature intended that this section not apply to police officers. The language of the statute prohibits public officials from employing “detectives or investigators” on a compensation basis other than that of time, and we do not think police officers were contemplated as being included.

In one of the few cases interpreting section 1, it was held that an informer was not intended to be classified as a “detective or investigator” under this statute. (People v. Jones (1966), 75 Ill. App. 2d 332, 221 N.E.2d 29.) In Jones a paid informer provided information to the police. Defendant made the argument that any testimony concerning the information provided by the informer was rendered inadmissible by the statute. The appellate court saw no merit in that contention. The same conclusion is made here.

The defendant makes the argument that the “510 policy,” given in addition to the regular compensation received by the officers, could interfere with the decisions that an officer makes in the course of his/her duties and is therefore unconstitutional. He urges that because an officer is rewarded for making such an arrest the arrest could be made to obtain the reward rather than because the officer had probable cause. Therefore, defendant contends, his right of due process was violated. We disagree.

The defendant contends that his situation is similar to that which arose in Connally v. Georgia (1977), 429 U.S. 245, 50 L. Ed. 2d 444, 97 S. Ct. 546. In Connally a judge was given a fee for each warrant that he issued. This was seen as violative of due process. We are of the opinion that Connally is inapposite to the defendant’s situation.

Defendant’s argument requires that we make no distinction between the function of a police officer and that of a judge. This we cannot do. The relationship of a police officer to a criminal defendant is by its nature adversarial. The same is true of the relationship between a State’s Attorney and such a defendant. On the other hand, a judge is to be impartial rather than adversarial.

In Connally, the defendant’s right to due process was tainted by the fact that the judge could have been influenced by having been paid a fee. Police officers simply do not occupy the same neutral and detached positions that judges do. Similarly, Ward v. Village of Monroeville (1972), 409 U.S. 57, 34 L. Ed. 2d 267, 93 S. Ct. 80, where the mayor was apting as a judge, is inapposite to the case before us.

We fail to see how the subject of the fourth amendment’s requirement for warrants issued by neutral magistrates arises in this case. Questions of judicial neutrality are not applicable to a policeman’s decision of whether or not an arrest should be made.

The question of whether there is probable cause is a judicial determination, and may be of constitutional dimension. However, this is separate and apart from ancillary motives for the commencement of prosecution. In the absence of a claim that the charge selected was based upon an unjustifiable standard such as race, religion or other arbitrary classification, what charges to file rest in the discretion of the prosecutor. (People v. Ruiz (1979), 78 Ill. App. 3d 326, 396 N.E.2d 1314.) In the case of People v. Rotramel (1972), 5 Ill. App. 3d 196, 198-99, 282 N.E.2d 484, it was stated: (See also People v. Henry (1974), 20 Ill. App. 3d 73, 312 N.E.2d 719; People v. Baron (1970), 130 Ill. App. 2d 588, 264 N.E.2d 423.) Here, though the ticket was issued by a police officer, he is also a member of the executive branch of government, and the same principles would be applicable. For us to otherwise explore this motivation would be an invasion of that branch of government. This motivation may have a bearing on the question of the weight or credibility of evidence.

“By statute the State’s Attorney is charged with the commencement and prosecution of criminal cases within the county. (Ill. Rev. Stat. 1969, ch. 14, par. 5.) In the exercise of his public duty, he is granted certain discretionary powers, one of which is to determine the offense which can and should properly be charged. Article III of the Illinois constitution divides the powers of government among the legislative, executive and judicial departments and provides that none of these shall exercise powers belonging to the others. The State’s Attorney’s office is a part of the executive branch. It is clear that the judicial department may not take as its own discretionary powers vested in an executive officer.”

However, we can say that defendant suffered no deprivation of due process as a result of the “510 policy.” Although we find there was no violation of due process, our opinion should not be read as an endorsement of this policy.

For the above stated reasons the judgment of the trial court of Lake County is reversed and this cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

LINDBERG and REINHARD, JJ., concur.