author: MR. PRESIDING JUSTICE BURMAN

text:
    Trailer Leasing Co., an Illinois Corporation, Plaintiff-Appellant, v. Sam Scrappo, d/b/a S & T Motor Service, Defendant-Appellee.
    Gen. No. 51,606.
    First District, First Division.
    June 24, 1968.
    Rehearing denied September 17,1968.

      Jules S. Gershon, of Chicago (Philip Z. Levinson, of counsel), for appellant.
    Albert I. Zemel and Marshall Patner, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

In this action, plaintiff, Trailer Leasing Co. (Trailer Leasing), a corporation, as lessor, seeks to recover from defendant, Sam Scrappo, doing business as S & T Motor Service (S & T), lessee, the value of a trailer it leased to defendant which allegedly was never returned. A bench trial before a magistrate resulted in a judgment in favor of the defendant from which plaintiff appeals.

Mathew Alagna, the owner and operator of Trailer Leasing, a company which is engaged in the business of leasing tractors and trailers, testified that his company-leased a new trailer to S & T on May 3, 1962, and that it was never returned. He further testified that his company had “several locations,” including the business office, the repair garage, and two lots which were fenced in and locked where the trailers and tractors were stored. On redirect examination a defense objection to testimony concerning Trailer Leasing’s normal business operations with regard to the return of leased equipment was sustained.

Kenneth Krueger, a police officer for the City of Chicago, testified that he had occasion to go to the offices of Trailer Leasing in response to a report that a trailer had been stolen. He questioned Perry Obilil, who was employed by Trailer Leasing, and Obilil told him that the trailer which had been under lease to S & T, was a 1959 model and had been stolen from the company lot between midnight and 8:00 a. m. on July 6, 1962.

Perry Obilil testified that at the time he reported to the police that the trailer had been stolen he had no personal knowledge of the theft. He told the police that the trailer had been reported as being returned by S&T.

Sam Scrappo testified that he had been leasing equipment from Trailer Leasing for a long period of time at the time of the disputed incident. He further testified that the written lease for the trailer in question had been sent to him by mail, and that he had signed it and returned it by mail to Trailer Leasing. He stated that receipts were never given by Trailer Leasing at the time the trailer was returned, but rather they were sent out in the mail shortly thereafter. Scrappo was billed for trailers a few days after they were returned; however, in the case of the trailer that had been stolen, he never received a bill nor did he request one. Scrappo testified that prior to July 6, 1962, his company would, on occasion, return trailers during the weekend.

Orice Belvidere, an employee of S & T, testified that he had driven the particular trailer in question to the plaintiff’s repair garage on July 5,1962. In returning the trailer he drove it directly to the garage because it had two flat tires. When Belvidere arrived at the garage one of defendant’s employees, a man named Eddy, told him to take the trailer behind the garage. According to Belvidere, he took the trailer to the back of the garage building, unhooked it and left it. Belvidere further testified that he had returned trailers to plaintiff’s company many times and that he knew many of the garage employees on a first-name basis. He stated that on his past trips to Trailer Leasing he had, on occasion, received a receipt for the return of the trailer, but that on July 5th he did not receive one. He testified that he knew Trailer Leasing’s business offices were probably closed at the time he returned the trailer, but that he had in the past returned trailers as late as 9:00 p. m. on Friday nights.

The executed leasing contract is silent on any specific method for the return of the trailer. Every bailment contract contemplates the return of the bailed property and the parties do not dispute this. Plaintiff was not permitted at trial to offer testimony relating to his established business practice with regard to the return of leased trailers. He made an offer of proof which was refused.

In his offer of proof, plaintiff testified that he had six hundred vehicles under lease to various customers, and that he didn’t take back any leased equipment after 5:00 p. m. on Friday nights. He further testified that he never stored any of his equipment on the premises behind the garage. He stated that all customers received a receipt immediately upon return of the property, and that there was no exception to this procedure.

The authority of a bailee is limited by the terms of the contract whereby he obtains possession of the bailor’s property. ILP, Bailments, § 7. When a contract of bailment is silent on the subject of the redelivery of the bailed property, as it is in the instant case, the bailee’s obligation to redeliver is generally regulated by the custom and usage of business at the place where the bailment is made, and such custom and usage is considered as being part of the contract. 8 CJS, Bailments, § 37(b). We have concluded that the trial judge erred and committed prejudicial error in refusing to hear testimony as to plaintiff’s customary dealings in respect to the return of bailed property. Custom and usage formed an integral part of the contract under which defendant’s responsibilities for redelivery of the trailer were to be determined. This evidence was particularly important in view of the fact that there had been a long period of business dealings between the parties. The evidence was admissible (Greene v. Gust, 26 Ill App2d 2, 7, 167 NE2d 438), and should have been considered by the trial judge in construing the intention of the parties as manifested in the leasing agreement.

We have considered the cases cited by the defendant, but in view of our holding that it was error to deny plaintiff’s proof on custom and usage it becomes unnecessary to discuss them. The case of Mulhern v. Public Auto Parks, Inc., 296 Ill App 238, 16 NE2d 157, is inapplicable on the facts.

For the reasons stated the judgment of the First Municipal District of the Circuit Court is reversed and the cause is remanded for a new trial.

Reversed and remanded.

ADESKO and MURPHY, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Joseph Rimicci, Defendant-Appellant.
    Gen. No. 51,705.
    First District, First Division.
    June 24, 1968.

      Thomas M. Santora, of Chicago (Sidney Z. Karasik, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Maurice M. Dore, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Joseph Rimicci, appeals from a judgment order of the County Department, Family Court Division of the Circuit Court. The order appealed from recited, inter alia, that the court (a magistrate sitting without a jury), after holding a trial and considering the evidence offered, had found the defendant “guilty” of being the father of the child, Joseph Elkin, born out of wedlock on April 4, 1965, and that the defendant was to pay the sum of Ten Dollars ($10) a week to provide for the support and maintenance of the child. These paternity proceedings were commenced by a verified complaint filed on September 9, 1965, by Andrea Elkin, alleging that the defendant was the father of the aforementioned child.

The defendant contends on appeal: (1) that the judgment is contrary to the manifest weight of the evidence; (2) that it was reversible error for the Magistrate to allow his being called as an adverse witness under Section 60 of the Civil Practice Act; and (3) that the Magistrate erred in not declaring a mistrial and disqualifying herself from further hearings when she prematurely announced the defendant guilty at the close of plaintiff’s case, but prior to hearing testimony for the defense.

The relatrix, Andrea Elkin, who was nineteen at the time of the trial, testified that on April 4, 1965, she gave birth to a premature baby boy, Joseph John Elkin. She first met the defendant in 1962, and sexual relations were commenced between them in September of that year. They continued these relations occasionally during 1963 and 1964. The relatrix further testified that she and the defendant engaged in sexual intercourse in August, September, and October of 1964, and that she did not have intercourse with any other men during that period of time. Towards the end of September, 1964, a medical test revealed Miss Elkin to be pregnant. Two days later, she told the defendant about her pregnancy and he stated to her that they “ought to wait and then get married.” She and the defendant engaged in further acts of intercourse until approximately two weeks before the baby’s birth, and again five months after the baby was born, in September of 1965. The relatrix further testified that she and the defendant talked frequently about getting married after she had told him about her pregnancy.

On cross-examination the relatrix testified that when she was thirteen years of age she was arrested and confined on the charge of “runaway.” She first had sexual relations at the age of fourteen, and continued thereafter to engage in intercourse. Miss Elkin admitted that she had sexual relations with Frank La Marque in January of 1964, and that Mr. La Marque had visited her at her apartment during the time when the baby was conceived. She also testified to the fact that she had been intimate with a Mr. Russo after she had become pregnant, the act occurring in November of 1964.

The defendant was called as a witness by the State under section 60 of the Civil Practice Act to which procedure defendant’s counsel objected on the grounds that the defendant was being compelled to testify against himself in a criminal action. The Magistrate overruled the objection to the defendant taking the stand, stating, “The Court takes the position this is entirely of a civil nature.”

The defendant, under questioning by an Assistant State’s Attorney, admitted engaging in sexual relations with the relatrix prior to the months of August, September, and October of 1964. However, he denied that he had intercourse with her either during those months or thereafter. He said he first became aware that Miss Elkin was pregnant in late October, 1964, when he visited the relatrix at her apartment and she told him that she was expecting. He visited Miss Elkin during her confinement at St. Elizabeth’s hospital following the birth of her baby, and asked a nurse to point the baby out to him. He further testified that he next saw the relatrix when the latter arrived at his place of residence carrying her baby, one evening in July of 1965. Miss Elkin stayed about four hours. During this time his mother supplied milk for the baby. His sister offered to give the baby a crib and to supply clothes for him. The defendant’s mother went out and bought the baby some diapers. Two days later, the defendant drove Miss Elkin and her child to Michael Reese Hospital where he and the relatrix both conferred with a doctor as to the state of the baby’s health. About six weeks after the visit to Michael Reese Hospital, the defendant, who was slightly intoxicated at the time, wrote a note which he left on Miss Elkin’s car. The note was composed as if it had been written by the child to inform its mother of her maternal duties.

At the close of the State’s case, the attorney for the defendant moved for a finding for the defendant. After hearing argument on the motion the Magistrate stated, “The Court will enter a finding of guilty.” The Magistrate then denied defendant’s motion and also denied a subsequent motion by defendant for a mistrial.

Thomas Keegan and Tony Tufano, testifying on behalf of the defendant, both stated that they had intercourse with the relatrix during the period of time when the baby was conceived. They testified that these acts occurred in the apartment of the relatrix. However, their testimony was rebutted by the relatrix who testified that the alleged acts of intercourse had not taken place. Neither Keegan nor Tufano were able to remember or identify certain physical characteristics of Miss Elkin’s apartment when asked to do so on cross-examination.

The defendant contends that the finding of the Magistrate that he was guilty of being the father of the child born to the relatrix was clearly contrary to the manifest weight of the evidence in that the evidence did not preponderate in favor of the relatrix. He contends that, at best, the evidence for the prosecutrix was counterbalanced by equally credible evidence offered in his own behalf and that the plaintiff, who was not a credible witness, did not carry her burden of showing that only he could have been the father of her child.

With this contention in mind we have carefully examined the entire record. In order for a reviewing court to determine that a verdict is against the manifest weight of the evidence an opposite conclusion must be clearly evident; and it is our duty to affirm the findings of the trial court unless said findings are clearly and palpably erroneous. People ex rel. Dalman v. O’Malley, 43 Ill App2d 95, 192 NE2d 589. We have concluded that the Magistrate, the trier of fact, was fully warranted in finding the defendant guilty.

It was uncontradicted that prior to the alleged act of intercourse in which the infant was conceived a long period of intimate relations existed between the parties. According to the relatrix, these relations continued during her pregnancy and were resumed approximately five months after she gave birth. She testified that she and the defendant engaged in acts of sexual intercourse during the months of August, September, and October of 1964, and that she did not have intercourse with any other men during that period of time. Miss Elkin further testified that two days after she learned of her pregnancy she told the defendant about it and he informed her that they “ought to wait and then get married.” The relatrix stated that after he found out she was pregnant the defendant often talked to her about getting married. The defendant admitted visiting the relatrix during her confinement at St. Elizabeth’s Hospital. His family provided the complaining witness with a crib, clothes, and some diapers. The defendant drove the relatrix to Michael Reese Hospital, and conferred with the baby’s doctor as to his health. Furthermore, the defendant admitted leaving a note for the relatrix purporting to be from the baby, expressing concern as to his mother’s capacity to take care of him.

The foregoing evidence clearly demonstrates a number of acts of sexual intercourse between the parties and a continuing pattern of concern for the baby’s well-being expressed both by the defendant and his family. The evidence was conflicting as to whether the relatrix and the defendant engaged in sexual relations during the period of time when the baby was conceived. There were also conflicts in the evidence as to whether the relatrix had intercourse with other men during the period of conception. However, we will not interfere with the Magistrate’s resolution of these factual disputes in favor of the plaintiff for her findings in this regard were not clearly and palpably against the manifest weight of the evidence. LaLacker v. Stuckey, 40 Ill App2d 341, 189 NE 2d 676. The defendant argues that the relatrix was not a credible witness because of her admitted intimacies with other men. We cannot say as a matter of law that this fact made the complaining witness’s testimony unworthy of belief. In a paternity case questions of credibility and weight are for the trier of fact. People ex rel. Miceli v. Rembos, 26 Ill App2d 429, 168 NE2d 562.

The plaintiff, in the case at bar, was required to prove her case by a preponderance of the evidence. People ex rel. Cook v. Campbell, 201 Ill App 215. The relatrix has the burden of establishing the fact that the defendant is the father of her child. People ex rel. Bondy v. Morey, 315 Ill App 491, 43 NE2d 197. The defendant contends that the relatrix has not met this burden, and that the evidence does not preponderate in her favor. We cannot agree. The testimony of Miss Elkin, if believed, was sufficient to establish the fact that the defendant was the father of her child. Blackwell v. Welti, 46 Ill App2d 453,197 NE2d 126.

The defendant next contends that it was reversible error for the trial court to allow the State to call him to the stand as an adverse witness under section 60 of the Civil Practice Act. He argues that portions of the testimony elicited from him exposed him to possible prosecution for either fornication or adultery and thereby violated his constitutional right not to be compelled to incriminate himself. He further contends that although the courts have characterized paternity proceedings as being “civil” in nature, they have not hesitated to protect constitutional rights in other kinds of civil proceedings where these rights have been threatened.

At trial, counsel for defendant objected to his client being called as an adverse witness because, “He will have to give testimony against himself, which is prohibited in a criminal action.” At no time, however, during the questioning by the State’s Attorney did the defendant refuse to answer a question propounded to him on the ground that answering it might tend to incriminate him.

A paternity proceeding in its nature has the appearance of a criminal prosecution, but in fact it is a civil proceeding, the main object of which is to .compel the putative father to contribute to the support of his illegitimate child to prevent the child from becoming a public charge. People ex rel. Dalman v. O’Malley, 43 Ill App2d 95, 192 NE2d 589.' It being a civil action it follows that it is governed by the Civil Practice Act. See Poindexter v. Willis, 87 Ill App2d 213, 231 NE2d 1. While we agree with the defendant that under certain circumstances a defendant may rely on the privilege against self-incrimination in a proceeding which is ostensibly civil in nature (City of Chicago v. Berg, 48 Ill App2d 251, 199 NE2d 49), we do not believe that the facts of the instant case present such a situation. The Fifth Amendment does not disallow the asking of potentially incriminating questions nor does it allow the person of whom the questions are asked to refuse to answer them without expressly asserting that his answer may tend to incriminate him. Communist Party of the United States v. Subversive Activities Control Board, 367 US 1. The privilege against self-incrimination is a personal one and if the witness answers without claiming it, the privilege is deemed to be waived. People v. Nachowicz, 340 Ill 480, 172 NE 812. In a civil case, the privilege against self-incrimination can only be raised after the witness has been sworn and can only be asserted in response to a potentially incriminatory question; in other words, the Fifth Amendment’s protection does not attach until the witness has taken the stand and has refused to answer a question propounded to him. Pennsylvania Tank Line v. Jordan, 341 Ill 94, 173 NE 181; 8 Wigmore, Evidence, § 2268 (McNaughton, Rev, 1961). See also, In re Groban, 99 Ohio App 512, 135 NE2d 477, affd, 164 Ohio St 26, 128 NE2d 106, affd 352 US 330; O’Connell v. United States, 40 F2d 201 (CA 2nd Cir). On the basis of the foregoing authority we have concluded that calling the defendant to the stand as an adverse witness under section 60 did not violate his privilege against self-incrimination; and, furthermore, that his failure to claim the privilege during his questioning by the State’s Attorney waived his right to assert it on appeal in regard to the questions asked of him at trial.

Finally, the defendant contends that a mistrial should have been declared because the Magistrate betrayed her prejudice when she made a premature finding of guilty after hearing a motion made by him to dismiss at the close of the State’s evidence. The Magistrate stated that she would enter a finding of guilty before the defendant had been given an opportunity to introduce any evidence. However, we must consider the fact that the trial took place without a jury, and the record is clear that the error was quickly corrected. The defendant was offered a full opportunity to present his case. It may be that because the defendant had already testified the Magistrate became confused and incorrectly assumed that the defendant was not going to offer any other evidence. In any event, the Magistrate considered all of the evidence offered and we have concluded that the defendant was not prejudiced by this premature finding. The case of Vander Veen v. Yellow Cab Co., 89 Ill App2d 91, 233 NE2d 68, is clearly distinguishable on the facts, and merits no discussion by us.

The judgment is, therefore, affirmed.

Affirmed.

ADESKO and MURPHY, JJ., concur.


author: MR. JUSTICE ADESKO

text:
    Donald L. Laughlin, Plaintiff-Appellee, v. Mary S. Laughlin, Now Known as Mary Tiedt, Defendant-Appellant.
    Gen. No. 51,728.
    First District, First Division.
    June 24, 1968.
    Rehearing denied July 22,1968.

      Master and Sands, of Chicago (Jay A. Canel and Erwin I. Katz, of counsel), for appellant.
    Sherman & Lewis, of Chicago (Maurice L. Lewis and Irving S. Abrams, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

This is an appeal from a post decree order modifying the custody provisions of a decree of divorce. The parties to this litigation were divorced on September 5, 1962. The decree of divorce found the mother to be a fit person to have the care, custody, control and education of the three minor children, two girls then aged 10 and 5 years, and a boy aged 8. On March 22, 1966, plaintiff, the father of the children, petitioned the court seeking a change of custody to himself. Plaintiff has remarried, currently earns $12,000 per year and lives in a Lake Shore Drive apartment. His wife, who is 22 years old, has indicated a desire to care for and rear her husband’s children. They have no children of their own.

Plaintiff alleged in his petition for post decree relief that since the divorce, defendant has been guilty of misconduct and is no longer a fit and proper person to have the care and custody of their minor children. He further alleged that she had given birth to a child out of wedlock; that she rented two homes posing as a wife of men to whom she was not married; that she is an habitual drunkard; that she consorted with various male persons and has been arrested for disorderly conduct and battery; that the children have been left alone and unattended; and that the children’s school record showed absence and tardiness.

The defendant in her answer denied all of plaintiff’s allegations and stated that on one occasion, when she asked her landlord to take care of the children, the landlord called the police complaining that the defendant had abandoned them. The defendant explained further in her answer that the school absences were caused by illness of the children and denied the tardiness.

The trial court, after hearing the evidence, eiitered a decree finding that the plaintiff had proven the material allegations of the petition and ordered the care, custody and control of the three children to be awarded to him.

Defendant claims that the order changing custody is contrary to law and against the manifest weight of the evidence in that the plaintiff failed to show that there were any changes in circumstances since the date of the decree, which adversely affected the welfare of the minor children.

The conduct of the defendant after the decree of divorce was not commendable. Many divorces create difficulties for the principals involved, but often far greater problems are created for their children who frequently are the innocent victims of the mistakes of their parents. This court is mindful of the difficulties faced by a divorced mother who, often with an inadequate income, has the burden of taking care of the children.

In a custodial contest, the paramount question for the court to decide is the welfare of the children. As stated in Hirth v. Hirth, 59 Ill App2d 240, 207 NE2d 114 (1965):

“The award of custody in the decree for divorce was predicated upon the plaintiff being a fit and proper person to have the custody of the children. In a hearing for modification, the court could not change the award provisions of the decree unless conditions had arisen to make it necessary for the welfare of the children that the custody be changed. In all matters concerning the custody of the child, the paramount issue is the welfare of the child. The fact of changed conditions is not sufficient to warrant modification of the custody provisions of the decree for divorce, unless such changed conditions affect the welfare of the child.” (Pp 243, 244.)

In Arden v. Arden, 25 Ill App2d 181, 166 NE2d 111 (1960), the court said:

“(S)ince the decree of divorce is res adjudicata as to the fitness of the plaintiff at the time of the decree, there must be convincing proof that the fitness of the plaintiff to have the custody of the child has so materially changed, as to affect the welfare of the child. We do not find such proof in the record. This court recognizes the well grounded principle of law that as to questions of fact, the decisions of the chancellor should not be overruled by a reviewing court, unless clearly and palpably erroneous, or whére the decision is against the manifest weight of the evidence. But in this case, assuming the decision of the trial court was correct on the factual question of misconduct, yet as a matter of law, there was not such evidence of changed conditions on the part of the plaintiff that affected the welfare of the child, to justify the change of custody.” (Citations omitted.)

There is evidence of past indiscretions by the mother, but these occurred before her remarriage and no claim was made by the father, during that period of time, that she was unfit to have custody of the children, although he had knowledge of the facts. The incidents complained of since her remarriage are palpably insufficient to prove that she is unfit to care for her children.

The testimony presented before the trial court shows that defendant is remarried and has established a home for her children. An impartial report of the Cook County Department of Public Aid shows that the children have a good relationship with her and her second husband. The older daughter expressed a preference to remain with her mother. While there is some conflict in the evidence, we feel that the proof was insufficient to sustain the conclusion that defendant was an unfit mother.

As was said in Nye v. Nye, 411 Ill 408, 105 NE2d 300 (1952):

“This judgment, however, is binding only in relation to the case here presented, and effects no prejudice to defendant’s right to question the propriety of the custody decree should grounds therefor arise hereafter.”

The judgment of the Circuit Court of Cook County is reversed.

Judgment reversed.

BURMAN, P. J. and MURPHY, J., concur.


author: SMITH, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Freddie White, Defendant-Appellant.
    Gen. No. 10,950.
    Fourth District.
    September 5,1968.
    Glenn 0. Fuller, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur (John D. Riddle, Assistant State’s Attorney, of counsel), for appellee.
   SMITH, P. J.

Defendant appeals from an order revoking probation and sentencing him to the penitentiary for a period of not less than 2 nor more than 5 years for forgery. A complaint charging a forgery committed subsequent to admission to probation was dismissed because not tried within 120 days. Evidence of the same forgery was received in evidence on the petition to revoke probation and that violation of the criminal law is the sole basis for the revocation of probation here reviewed. It is the defendant’s position that since he could not be tried for this forgery under the 120-day rule, it cannot now be used as a basis for probation revocation. It is conceded that the evidence produced on the revocation hearing is sufficient to warrant the revocation order. The only issue here presented is whether or not it is properly admissible in evidence for any purpose.

Defendant was admitted to probation on September 27, 1966, for a period of 5 years after a plea of guilty for forgery. The original plea was to a charge of forging a check for $47.74. The probation officer’s report, however, shows that he had forged seven other checks during the month of August, 1966, totaling $330.84. He was admitted to probation upon the specific condition that he would not “during the term of probation violate any criminal law of the State of Illinois.” Defendant was arrested on May 17, 1967, on a complaint charging forgery. On June 21, the petition for violation of probation was filed, and a warrant issued. On September 15, the defendant filed a motion to dismiss the complaint for forgery and to dismiss the petition to revoke probation. On October 10, the court allowed the motion to strike the complaint charging forgery and denied the motion to strike the complaint charging probation violation, released the defendant on his own recognizance and allotted the hearing on the probation violation for October 20. On that day, evidence was heard, probation revoked and the defendant sentenced.

The defendant urges that since he cannot be sent to the penitentiary for the crime charged in the May 17 complaint, he ought not wind up in the same place for a violation of probation based on the same crime. His basic argument is that since he is immune in the one instance, he is likewise immune in the other. The effect, as he sees it, should be exactly the same. In reaching this conclusion, he knocks down rather than jumps over a few hurdles to reach the finish line. The dismissal of the May 17 complaint did not find the defendant not guilty of the crime of forgery, but only that he could not be prosecuted for the crime because of the 120-day statute. It is not a finding that he did “not during the term of probation violate any criminal law of the State of Illinois.”

Recently in People v. Morgan, 55 Ill App2d 157, 204 NE2d 314, we discussed at length the nature and the differences between the two proceedings and stated that invoking punishment for violation of probation does not in any sense of the word undertake to punish the defendant for offenses committed subsequent to the granting of probation. The punishment imposed upon revocation of probation is punishment deferred for the earlier offense and deferred only to achieve rehabilitation outside a penal institution rather than inside.

The defendant cites no authority for his position other than People v. Heider, 225 Ill 347, 80 NE 291. In that case, the defendant was discharged from prosecution on a first indictment because not tried within 120 days and a new indictment was returned charging the same crime and he was tried and convicted. The Supreme Court, of course, held that the second indictment was barred. That situation is not parallel to or comparable to an indictment and a petition to revoke. People v. Kostaken, 16 Ill App2d 395, 148 NE2d 615. The discharge of the defendant under the 120-day rule does nothing so far as determining the truth of the facts in the May 17 complaint. In People v. Kuduk, 320 Ill App 610, 51 NE2d 997, the defendant was admitted to probation. A petition to revoke was filed charging that while on probation, the defendant was arrested and charged with the crime of driving an automobile while under the influence of intoxicating liquor and of reckless driving and that an indictment was returned against him by the Grand Jury. On a bench trial of that indictment, the defendant was found not guilty. The defendant took the position that this made the issue res judicata and that the evidence in that case was not admissible on a petition to revoke probation. The court held otherwise citing People v. Lewis, 376 Ill 509, 34 NE2d 712; Keats v. Board of Police Com’rs, 42 RI 240, 107 A 74; Kavanaugh v. Pauli, 55 RI 41, 177 A 352. We adhere to the views expressed by us in Morgan and hold that such evidence is admissible on the issue of a revocation of probation for the very simple reason that proof of facts justifying revocation of probation may be established only by the greater weight of the evidence whereas evidence sufficient to convict must be proved beyond a reasonable doubt. The insufficiency of the evidence to prove the latter does not establish the insufficiency of the evidence to prove the former. It is clear that under our Probation Act, the court exercises a supervisory control over the rehabilitation of the defendant. Evidence insufficient to warrant his conviction beyond a reasonable doubt of a violation of the criminal law may very well be evidence sufficient to establish that he had in fact violated the criminal law and to undermine, if not entirely explode, the thought that a continuation on probation will affect rehabilitation outside the penitentiary rather than in it. The court’s determination on a petition to revoke probation is the desirability of continuing probation and the likelihood of rehabilitation if he does. For these reasons, the judgment of the trial court is affirmed.

Affirmed.

TRAPP and CRAVEN, JJ., concur.


author: EBERSPACHER, P. J.

text:
    People of the State of Illinois, Appellee, v. Rodger Braun, Defendant-Appellant.
    Gen. No. 67-137.
    Fifth District.
    September 13, 1968.

      John J. Vassen, of East St. Louis, for appellant.
    William B. Starnes, State’s Attorney of Randolph County, of Chester, for appellee.
   EBERSPACHER, P. J.

This is an appeal brought by the defendant, Rodger Braun, following his conviction for the offenses of reckless homicide, driving while under the influence of intoxicating liquor and driving without a valid operator’s permit.

The defendant was tried before a jury in Randolph County, Illinois, which returned a verdict finding the defendant guilty of each of the three offenses. Judgment was entered on the verdict, and the court sentenced the defendant on each of the offenses with a further order that the sentences were to be consecutive. In his effort to reverse the judgment, the defendant alleges that the court erred in the admission of certain statements made by the defendant, and impropriety of the consecutive sentences.

From the record it appears that an automobile collision occurred on May 13,1967, which resulted in the death of one individual, and the hospitalization of the defendant. Three days later, on May 16, 1967, four Illinois State Troopers visited the defendant in the hospital. The troopers entered the room and talked with the defendant in pairs. During the troopers’ “interview” with the defendant, the defendant made statements, some inculpatory and some exculpatory, which were introduced into evidence at the trial over the objection of the defendant.

One of the troopers in the first pair advised defendant that he had a right to remain silent, that anything he might say might be used against him in open court, and “he had a right for an attorney if he so desires.” The conversation took place before presenting defendant with a citation for violation of the Uniform Act Regulating Traffic on Highways, but after defendant had been told that the troopers had a ticket for him. One of the troopers of the second pair advised defendant that he did not have to make a statement, that it could be used against him, and that he had “the right to an attorney.”

There is no question that the investigation had focused on defendant, and the defendant alleges, and the State candidly admits, that the statements of the defendant were the culmination of custodial interrogation within the meaning of Miranda v. State of Arizona, 384 US 436, 16 L Ed2d 694, 86 S Ct 1602. The United States Supreme Court in Miranda stated that:

“By custodial interrogation we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. State of Arizona, 384 US 436, at 444.

The fact that the defendant was interrogated in the hospital rather than the police station is of little relevance when it is clear that the defendant’s injuries require his hospitalization.

The defendant was not specifically informed that prior to any questioning he had the right to the presence of an attorney, and that if he could not afford an attorney, one would be appointed for him prior to any questioning, in accordance with Miranda, 384 US 436, at 479.

In answer to the defendant’s argument, the State argues that there has been substantial compliance in the giving of the Miranda warning by the troopers, and that there was no indication that the defendant was indigent at the time of the interrogation. The State cites as authority a recent case of the Massachusetts Supreme Court, Commonwealth v. Wilbur, 231 NE2d 919, in which the warning complied with the requirements of Miranda in every detail, except the arresting officer’s failure to inform the suspect that he had the right to appointed counsel if unable to retain his own. There the Massachusetts Court held that “it is the spirit more than the form that counts” as far as Miranda warnings apply.

In Miranda we find unequivocal language:

“. . . an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation. ...” Miranda, 384 US 436 at 471, 16 L Ed2d 694, 86 S Ct 1602, at 1626.

and at 384 US 436, at 473, 16 L Ed2d 694, 86 S Ct 1602, at 1627:

“In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent — the person most often subjected to interrogation — the knowledge that he too has a right to have counsel present. As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it.” (Emphasis added.)

In the Massachusetts case the defendant was a natural resource officer who could exercise all of the authority of police officers except for the service of civil process; from this the Court concluded that the defendant could not be regarded as being ignorant of his constitutional rights. The officers who arrested Wilbur knew him, knew he owned property and was a public officer, and the Court could rely on Miranda footnote #43 which states that it is not necessary to warn the suspect who is known to have an attorney or is known to have ample funds to secure one. There too, the Court pointed out that the police officers, in a matter that arose before Miranda, acted in good faith and could not anticipate such decision, and noted the limitations of its decision. (See footnote 8, Commonwealth v. Wilbur, supra.)

The State here has suggested that there is no indication that Braun was indigent at the time of making the statements and advised the officers at that time that he had altered his driver’s license so that he could cash payroll checks and advised the court that he could not hire an attorney “now” indicating he was laid off because of an arm injury and obviously because he was in jail. In the Miranda footnote 43, the Supreme Court pointed out “the expedient of giving a warning is too simple and the rights involved too important to engage in ex post facto inquiries into financial ability when there is any doubt at all on that score.”

By the same token it is not the duty of the accused to demonstrate his indigency before his is entitled to be told of his right to appointed counsel. Perhaps if there is an affirmative showing that the accused is not indigent, the failure to give the warning would not be fatal. United States v. Messina, 388 F2d 393 (2nd Cir 1968). However, there was no such showing in the present case. The reasoning of the Wilbur case, on the facts here present, is not persuasive.

The fact there may have been sufficient evidence independent of the incriminatory statements of defendant to convict him does not remedy the violation of his constitutional rights and is not a basis upon which to affirm his conviction, because we cannot determine what evidence convinced the jury of defendant’s guilt beyond a reasonable doubt. In Miranda, the Court pointed out:

“No distinction can be drawn between statements which are direct confessions and statements which amount to admissions of part or all of an offense.

“. . . No distinction may be drawn between inculpatory statements and statements alleged to be merely exculpatory .... Statements merely intended to be exculpatory by the defendant are often used to . . . demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication.” Miranda, 384 US 436 at 476-477, 86 S Ct 1602, at 1629.

Concluding that there was not sufficient compliance with Miranda, we find it unnecessary to pass upon the second assignment of error by defendant.

We have particularly noted the high quality of the briefs of both appellant and appellee and express our particular appreciation of the work of appointed counsel in this cause. The cause is reversed and remanded to the Circuit Court of Randolph County for a new trial.

Reversed and remanded.

GOLDENHERSH and MORAN, JJ., concur.

       Chapter 95%, § 98 et seq., Ill Rev Stats 1965.

       Escobedo v. Illinois, 378 US 478, at 492.


author: MR. JUSTICE MORAN

text:
    The People of the State of Illinois on the Relation of Republican-Reporter Corp., Tilton Publications, Inc., Danny C. Terry, d/b/a Tri-County Press, and Associated Publishers, Inc., Plaintiff-Appellee, v. Claude E. Holmes, Ex Officio County Treasurer, Ogle County, Illinois, and Claude E. Holmes, Supervisor of Assessments, Ogle County, Illinois, Defendant-Appellant.
    Gen. No. 67-151.
    Second District.
    August 29,1968.

      James L. Moore, State’s Attorney, of Oregon, for appellant.
    Fearer & Nye, of Oregon, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

Plaintiffs herein, being publishers of all the newspapers in Ogle County, filed a complaint for mandamus against the defendant as Ex Officio County Treasurer and Supervisor of Assessments. The complaint alleged that the published legal descriptions of parcels of real estate, in connection with the quadrennial assessment for the year 1967, was inadequate because of failure to comply with sections 103 and 105 of the Revenue Act of 1939. (Ill Rev Stats 1967, c 120, §§ 584 and 586.) The proof was primarily concerned with the published description of realty found in the rural or unincorporated areas of the county; that is, areas where subdivisions were not present. The trial court held in favor of the plaintiffs and issued a writ of mandamus. The defendant appeals, praying that the order be reversed and the writ discharged.

The sole question presented is whether the statutory provisions require a more sufficient legal description of the property being assessed than that furnished by the defendant to the plaintiffs.

The uncontradicted testimony and exhibits admitted into evidence disclose the following as a representative example of the publication list for Maryland Township furnished by the defendant to the plaintiffs;

“Sec 16-25-9
“Chester Bauer, 40. A. 4500
“John D. Newcomer, 100. A.
1800 9600
“John J. Borgmann, 40. A. 3200
“John T. Templin, 80. A.
1000 7400
“Clarence E. Bolen, 120. A.
4200 15000
“Clarence E. Bolen, 20. A.
600 2400
“Larry L. Hegberg, 9.75 A. 800
“City Nat’l Bank, 60.25 A.
1800 6600
“Lowell R Kahly, 30. A.
1700 3500
“Chester A. Bauer, 15. A. 1500
“Jack Bull, 125. A.
3700 14200”

The statutory enactments with which we are concerned are found in sections 30, 103 and 105 of the Revenue Act of 1939, as amended (Ill Rev Stats 1967, c 120, §§ 511, 584 and 586). The pertinent part of section 30 is as follows:

“All real property subject to taxation under this Act, including real estate becoming taxable for the first time, shall be listed by the proper legal description in the name of the owner thereof by such owners, or persons required by law, or their agents, or the officers provided by law, and assessed at the times and in the manner as provided in Section 43, . . . Such assessment, as modified or equalized or changed as provided by law, shall be the assessment upon which taxes shall be levied and extended during the quadrennial period for which the same is made, . . . No assessment of real property shall be considered as illegal by reason of the same not being listed or assessed in the name of the owner or owners thereof.” (Emphasis added.)

and a portion of section 103 reads:

“In counties containing less than 500,000 inhabitants, as soon as the county assessor, supervisor of assessments or board of assessors, as the case may be, has completed the assessment in the county or in the assessment district he or it shall, in each year of a quadrennial assessment of real property, publish for such county or assessment district a full and complete list of the assessment of real and personal property, by townships if the county be so organized. . . . Such publication shall be made on or before July 10, of that year in counties with less than 150,000 inhabitants and on or before August 10, of that year in counties with 150,000 or more but less than 500,-000 inhabitants, and shall be printed in some public newspaper or newspapers published in said county; . . .” (Emphasis added.)

and section 105 states:

“In all counties the publication of the assessments on real estate shall include the name of the owner or of the person who last paid the taxes on each tract, lot of land or piece of real estate, and the amount of its assessment and how much thereof, if any, is for the improvements thereon. Wherever any real estate, tract or lot of land so assessed is susceptible of description or identification by street name and street or house number, then the publication of such street name and street or house number, together with the dimensions of such tract or lot of land or piece of real estate, shall constitute a sufficient description of such tract or lot of land or piece of real estate for the purposes of publication required by this Act.”

It is the defendant’s position first, that a proper construction of the cited statutes does not require any legal description of the real estate assessed and, second, if the statute did require a legal description of the realty assessed, the description published was adequate.

As to the first contention, the defendant argues that it has long been the rule of statutory construction that where there are two provisions, one of which is general and designed to apply to cases generally, and the other is particular and relating to one subject, the particular provisions must prevail and be treated as an exception to the general provision. People v. Kipley, 171 Ill 44, 84, 49 NE 229 (1898). He then concludes that sections 30 and 103 are both general sections covering assessments, whereas section 105 is specific, covering information to be included in the publication of assessments and nothing else. Therefore, with regard to rural property, only the name, the amount of the assessment for improvements, if any, and the total assessment is necessary to be published, without more.

We disagree. The legislative intent must be gathered from the entire act rather than from one clause, sentence or section thereof, and courts may not confine their attention to the one part or section to be construed. Illinois Bell Tel. Co. v. Ames, 364 Ill 362, 365-366, 4 NE2d 494 (1936). All of the sections involved pertain to the assessment of realty as determined by the appropriate officer. Such acts, be they general or special, which relate to the same subject or object, are in pari materia although they were enacted at different times. It is a primary rule of statutory construction that not only should the intention of the legislature be deduced from a view of the whole statute and from its every material part, but statutes in pari materia should be construed together. People ex rel. Bell v. New York Cent. R. Co., 10 Ill2d 612, 621, 141 NE2d 38 (1957); Southmoor Bank & Trust Co. v. Willis, 15 Ill2d 388, 394, 155 NE2d 308 (1958).

It will be noted that the three sections of the statute which are involved all have a common denominator, that is, the “assessment” of realty. Section 30 creates a duty to establish a list of all real estate subject to taxation for assessment “by the proper legal description.” Section 103 furthers the duty to “publish ... a full and complete list of the assessment of real . . . property” within a certain date in some newspaper and section 105 extends, for publication purposes, not only what has been called for by the preceding sections, namely a full and complete list of assessments of realty by proper legal description, but also the name of the owner or person who last paid taxes, the amount attributable to improvements and the total amount of the assessment. To interpret section 105 differently would be to hold that a legal description, for publication purposes, would only be necessary “wherever any real estate ... is susceptible of description or identification by street name and street or house number . . . , together with the dimensions . . .” of such realty. This we feel, was not the purpose or intent of the legislature.

The defendant cites various cases for the proposition that the description of real estate for the purposes of taxation is less stringent than needed in a grant or conveyance intended to pass title. However, all of the cases cited dealt with a legal description which reduced the particular section into quarters.

Publication of the assessment roll is clearly not designed for the guidance of officers or the maintenance of order, system and dispatch in proceedings. It is to provide the taxpayer first, with notice of value of his property for tax purposes as determined by the proper authority and, second, information and opportunity to ascertain whether the assessment is excessive or disproportionate. People v. Jennings, 3 Ill2d 125,128,119 NE2d 781 (1954).

By implication, therefore, in order for a taxpayer to determine if his assessment is disproportionate or excessive, he must be able to compare his assessment with other taxpayers. This then, brings forth the remaining contention of the defendant, that publication of the section, township and range (the three numbers across the top of the example) along with the number of acres, is a sufficient legal description for comparison purposes. The defendant argues that every landowner knows how many acres he owns, but not many could describe his land in terms of a complete legal description as requested by the plaintiffs in their complaint. With this we agree; however, section 30 requires a “proper” legal description and not a “complete" legal description.

The defendant’s argument that there was sufficient description given in the publication is based upon the premise that there “can be no doubt that the neighbors know how many acres the adjacent landowners have and of the type of soil and buildings that are on the farm” is not substantiated by any factual matters found in the record in this case nor is such argument persuasive.

As already noted, one of the basic requirements of the publication notice is to allow taxpayers to compare their assessments with others in like circumstances. It therefore follows that the publication should contain a more specific description than given in the instant case, which would thereby allow a person to locate and to ascertain his assessment as compared to others in the area, which does not necessarily mean adjacent thereto.

We are of the opinion that the term “proper legal description” as used in section 30 (or the term “a sufficient description of the property,” as used by the trial court in its order) to be included in the publication notice provided by section 105, as decided hereinbefore, means a description which would at least specify in what quarter section of the section the property may be found in order that the taxpayer may effectuate his right to compare his assessment with other taxpayers.

We therefore affirm the judgment.

Judgment affirmed.

DAVIS and SEIDENFELD, JJ., concur.


author: ALLOY, P. J.

text:
    N. H. Engle & Sons, Inc., a Corporation, the First National Bank of Lake Forest, a National Banking Association, as Trustee Under Trust Agreement Dated January 20, 1953, and Known as Trust No. 989, Martin Hood and Victorine Hood, Plaintiffs-Appellees, v. Jindrich Laurich and Blaza Laurich, Defendants-Appellants.
    Gen. No. 67-152.
    Second District.
    September 10,1968.

      Robert J. Heilgeist, of Lake Villa, and Sidney Z. Karasik, of Chicago, for appellants.
    Hall, Meyer, Fisher, Holmberg, Snook and May, of Waukegan, for appellees.
   ALLOY, P. J.

This cause was instituted as an action to enforce certain restrictive covenants in a deed which provided that the property involved shall be “used, improved and occupied for residence purposes only.” Plaintiff, N. H. Engle & Sons, Inc., a corporation, was the grantor-developer, Martin Hood and Victorine Hood were neighbors who owned a home in the area and The First National Bank of Lake Forest was the Trustee of the property under a Land Trust. Defendant Jindrich Laurich is a physician and Biaza Laurich is his wife. Following a trial before the judge without intervention of a jury, a permanent injunction was decreed in the trial court restraining defendant Jindrich Laurich from maintaining a medical office in his home.

A number of years ago, one Edna Siebel laid out 28 lots along Sand Lake and named it Lindenhurst Estates Subdivision. In 1953, N. H. Engle & Sons, Inc. purchased the subdivision together with approximately 550 acres surrounding the subdivision (the purchase being made in the form of a land trust with First National Bank of Lake Forest as Trustee). This deed to the Engle company contained no restrictions. The bulk of the acreage was zoned for farming or for residences. Shortly after the purchase by the Engle company, an attempt was made to have the tract rezoned to allow the development of some businesses. This effort was unsuccessful, and the denial of such proposed zoning change was affirmed in the Supreme Court of this State (First Nat. Bank of Lake Forest v. County of Lake, 7 Ill2d 213,130 NE2d 267).

Following such denial of zoning change, the Village of Lindenhurst was then incorporated with N. H. Engle as the main landowner in such village. Portions of the village were thereafter zoned for business, and businesses were developed on such property. Sixteen of the 23 lots in Lindenhurst Subdivision were outside the village limits, including the particular lot in question in the instant case. The Engle company subdivided and conveyed a number of lots in the 550-acre tract. Many of the lots were sold for residences and contained a restriction that they could be used for residence purposes only. The properties sold for businesses did not contain any such restrictions. All the lots sold in Lindenhurst Subdivision contained restrictions which specifically provided that the real estate could be used for “residence purposes only.” It prohibited alteration or construction on said real estate of other than one single-family residence building designed and built for occupancy by a single family. Plans and specifications for such buildings and material and construction thereof were required to be submitted to and approved by grantor before construction could be undertaken. A street called Grand Avenue physically separates Lindenhurst Estates Subdivision (containing 23 lots) from the other property purchased by the Engle company, and such lots in the subdivision were described as premium lots in the area, since the lots fronted on Sand Lake.

In 1960, the defendant, Dr. Laurich sought to set up a practice of his own in a new community which had no doctors. He met Morton Engle, a principal in the plaintiff’s firm, and inquired if a doctor’s office was available in a certain shopping plaza then being constructed by Engle on the north side of Grand Avenue in the Village of Lindenhurst. Engle rented him an apartment in a four-apartment building which was zoned for business and he told the doctor he could have a temporary office in the building. A lease was undertaken between the Engle company and Dr. Laurich for one of the apartments in the farmhouse-apartment building. The doctor resided in and engaged in his medical practice from the apartment in that building, on an understanding which Engle described as a “temporary expedient.” In March of 1961, Dr. Laurich purchased Lot 5 of Lindenhurst Subdivision from the Engle company under a contract. The doctor testified that Engle advised him that the defendant-doctor could put a house on the lot and include his office in the house. Engle denied ever saying anything of this nature, but instead stated that he reminded the doctor of the restrictions which appeared in the contract and later in the deed to the doctor. In conjunction with the delivery of the deed, a covering letter was addressed to the Launches which contained the following language:

“Your attention is particularly directed to the restrictions contained in the deed. These restrictions are part of a general subdivision plan and must be strictly complied with. “We are informed that Dr. Laurich intends to erect a building upon these premises which he will use and occupy as, and in which he will maintain and operate his permanent and principal doctor’s office for the regular practice of medicine. Such use and occupation thereof would constitute a violation of the restrictions.

“The acceptance by you of the deed forwarded with this letter constitutes the representation to us and to the Grantor Trustee that you will strictly comply with said restriction. Violation by you of the restriction will compel us to institute proceedings for an injunction to restrain such use and occupation . . . .”

After the doctor had purchased the lot and prior to the time he commenced construction of his home with a built-in office, Engle and its representatives tried to persuade the doctor to take space for an office in a professional building being constructed by the Engle company. The doctor refused and the doctor and the Engles were thereafter not on friendly terms.

The doctor then caused plans to be prepared for his home which included several rooms designated for his medical practice such as an x-ray room. When the contractor informed him that it was unlikely that Engle would approve such a plan, the doctor changed his plans to show the medical area as a “family room.” The plans were presented and approved and were thereafter changed before construction to provide partitions for the medical rooms. The home was completed with the medical facilities and with a parking lot for eight automobiles. The doctor thereafter began his medical practice in this home and had as many as 14 cars at one time parked outside his home. The Engle company and the bank as grantors, and the Hoods as homeowners in the Lindenhurst Subdivision, thereafter brought suit to enjoin the defendant Dr. Launch from carrying on his medical practice in his home.

There was testimony by a representative of Engle that the medical practice was detrimental to the surrounding area as it would reduce property values and destroy the image of the property. A real estate dealer also testified as to the negative effect of the medical practice on the surrounding area from a value standpoint and there was contrary evidence that the medical office was a benefit to the area. It was shown in the record that the Hoods could not see the doctor’s home from the house owned by Hoods because of shrubbery and other houses. It was also shown in the record that the defendant’s home was 1,200 feet from the Engle real estate office, 1,500 feet from the village hall, and 2,000 feet from the nursing home. The village hall and nursing home were on land zoned for business and the deeds to such property contained no restrictive covenant as to use. It was also shown that the real estate office was a temporary occupancy until the lots in the area were sold. A real estate appraiser testified that the general area in and around Lindenhurst was “residential with commercial use and occupancy and residences.” There was also testimony that the shopping center, professional building, new church and a civic center addition to the village hall were the only changes of a business character in the area around Lindenhurst since 1961, when Engle sold Lot 5 to defendant doctor.

On appeal in this Court, defendant contends (1) that the practice of medicine in a home owned and occupied by a physician and his family does not violate covenants limiting the use of property for residential purposes only; (2) that the restrictions in the deed received by defendant were released by implication and abandoned or waived in the circumstances disclosed by the record; (3) that the grantor bank and the Engle company and the Hoods as owners of a lot were not entitled to enforce the restrictive covenants and to obtain equitable relief in support thereof; and (4) that the findings of the Chancellor were against the manifest weight of the evidence.

Restrictions contained in the deed limiting the use of the property for residential purposes have been held to be valid and enforceable under the laws of the State of Illinois (Housing Authority of Gallatin County v. Church of God, 401 Ill 100, 81 NE2d 500). In the case just cited, where a restriction read “to be used for residential purposes and not otherwise,” the court determined that the construction of the church building was prohibited by such provision. It was pointed out in that case that an owner of real estate has a right to convey it subject to any condition or restriction which he deems fit to impose, provided the conditions or restrictions are not against public policy and do not materially impair the beneficial enjoyment of the estate. With respect to the particular problem which confronted the trial court and which is now before this Court, no Illinois case has been directed to our attention nor have we discovered any precedent in this State which specifically determines the question of whether the use by a physician for his medical practice of a portion of his home is violative of a restrictive covenant as to the use of property “for residence purposes only.” The parties to this cause have cited cases from other jurisdictions some of which have emphasized the distinction between a professional and a commercial enterprise (Briggs v. Hendricks (Tex), 197 SW2d 511 (1946)). In determining the issue before the court, however, we do not believe that such distinction is appropriate or valid. The cases which have emphasized the physical effect on the surrounding area and which do not base the determination on whether a business-type enterprise is being carried on within the home seem to be more consistent with the type of covenant which we have under consideration. The mere physical appearance of the outside of the home should not, however, be the sole criterion for allowing or denying an occupation or a profession from being carried on within the residence. We feel that the activity conducted within the home is the fundamental factor to be considered in making a determination as to whether there is a violation of the restrictive covenant.

A persuasive case from New York, Stewart v. Barber, 182 Misc 91, 43 NYS2d 560, at page 563, summarizes a rule which has been adopted in some states in which the court stated:

“It is not enough that the house is essentially residential in character in view of the words in the covenants ‘exclusively for residential purposes.’ It is immaterial that the portion of the premises used for the practice of dentistry is but a small portion of the whole, and hence the building is essentially a residence in view of the inhibition of its use for anything except residential purposes.

“In spite of holdings seemingly to the contrary, I think where a physician or dentist sees his patients, or a lawyer meets his clients at his house in a room which would normally be called his office, he thereby destroys the character of his house as a private dwelling and it is no longer employed exclusively for residential purposes.....”

We feel that this is a valid conclusion. When a professional man pursues an occupation in his home in which it is necessary that patients, clients or patrons call at his home for the purpose of obtaining treatment, or similar activity, it then becomes a nonresidential use, and is contrary to a restrictive covenant of the type which was contained in the deed in the instant case. The purpose of the covenant was to eliminate traffic, noise and confusion in the neighborhood so it remains a residential neighborhood. The use by a doctor of his home for such purposes is clearly one type of use which was designed to be prohibited by the clause. It is understandable, that not all uses of a home for nonresidential purposes would be violative of the covenant referred to. An illustration of a use which apparently would not be a violation of the covenant, would be the use by an author of a portion of his home for the business of the author in the process of writing, etc. It is when the business or profession requires marked changes or activity outside of the residence itself in the form of noise, or displays, or patients entering and leaving in substantial numbers, that the use becomes a violation of the covenant.

The single-family use restrictions were part of a general subdivision plan for Lindenhurst Estates. As such they are enforceable by the owner as against the grantee and by any grantee as against other grantees (Henrieks v. Bowles, 20 Ill App2d 148, 155 NE2d 664). Plaintiffs as grantor and homeowner in the area around the doctor’s property were proper parties to bring the action involved in the instant case (Dolan v. Brown, 338 Ill 412, 170 NE 425; Brandenburg v. Country Club Bldg. Corp., 332 Ill 136, 163 NE 440). We note that all the contracts executed for the sale of lots in the Lindenhurst Estates contained identical restrictions. No lot in the subdivision other than the lot occupied by defendant has been used for any purpose other than as a residence.

A further question arises as to whether the grantors or others who acquire title from grantors in the Lindenhurst area changed the character and environment of the neighborhood around defendant’s lot and thus abandoned the restrictions in the deed by implication or otherwise justified the use thereof by the defendant doctor. The rule applicable in such cases has been referred to in Cuneo v. Chicago Title & Trust Co., 337 Ill 589, at page 595, 169 NE 760. The court in such case refers to the fact that restrictions upon the use of the property such as were created by deeds of the character which we have before us and which are imposed as part of a general plan for the benefit of all the lots affected, give to the purchasers of the lots a right in the nature of an easement, which will be enforced in equity and, upon equitable principles against owners of other lots so affected. The court pointed out that where the intention was clearly shown by the restriction, and the enforcement of the restriction is necessary for the protection of substantial rights, they will be enforced. The court, however, stated in that case:

“The rule in this State likewise is, that equity will not enforce a restriction where, by the acts of the grantor who imposed it or of those who derived title under him, the property and that in the vicinage has so changed in its character and environment and in the uses to which it may be put as to make it unfit or unprofitable for use if the restriction be enforced, or where to grant an injunction against violation of such restriction would be a great hardship on the owner and of no benefit to the complainant, or where the complainant has waived or abandoned the restriction.”

That rule of law has been applied in the courts of this State for a number of years (Kneip v. Schroeder, 255 Ill 621, 99 NE 617; Ewertsen v. Gerstenberg, 186 Ill 344, 57 NE 1051). On the basis of the record in this cause, however, we do not believe that rule can be applied to permit the defendant doctor to maintain the medical practice in his home. The area under consideration we feel should be only the 23 lots in the Lindenhurst Estates Subdivision. All of the lots sold in the area by the plaintiff Engle company contained restrictions similar to those found in the deed to the doctor. The Lindenhurst Estates Subdivision was separated physically from the balance of the area by Grand Avenue on the north and by Sand Lake on the south. Because it is a separate area of the character involved, in applying the rule referred to in the Cuneo case, only the Lindenhurst Estates Subdivision should reasonably be considered. This particular consideration was noted in O’Neill v. Wolf, 338 Ill 508, 170 NE 669, where the court found that changes on certain streets in the subdivision did not affect the character or environment of lots on another street in the same subdivision. The court in that case quoted from Morrow v. Hasselman, 69 NJ Eq 612, 61 A 369 (O’Neill v. Wolf, 338 Ill 508, at 523-524,170 NE 669):

“As to alleged violations on other streets and avenues, my view is that, even if proved, they are not material in this case, as the restrictions in each avenue, in a general plan of this kind, must be considered as adopted with special reference to each avenue and its improvement, and the rights of purchasers on one avenue who have in good faith bought and built according to its restrictions are not impaired or affected by acts of the vendor or other purchasers relating to the then existing restrictions on other avenues.”

If we consider only the Lindenhurst Estates Subdivision with its 23 lots, the record discloses no change of any character or environment in this area which would operate to permit the defendant doctor to feel that the restrictions were abandoned or waived, since nothing new had been constructed since the doctor purchased his lot. The only use similar to a business in the subdivision was the real estate office of Engle which was shown to be only a temporary location until all the lots were sold. Even if we view the entire area of several miles surrounding the lot purchased by the doctor, it is difficult to justify a change of character or condition in the territory sufficient to allow the defendant doctor in the particular subdivision to have a restrictive covenant nullified. The record discloses that since the doctor purchased his lot the only business type improvements in the area consisted of a church in a residential area and an addition to the civic center. There is no evidence that these small changes in any way materially affected the character of the area which was still primarily residential. The changes which were made prior to the purchase of Lot 5 and other areas certainly should not affect the use of Lot 5 since a specific provision was incorporated in the contract and the deed restricting the use to residential purposes only within the particular subdivision.

To justify the elimination of a use restriction the change in character or environment of the area must be clearly shown. In Housing Authority of Gallatin County v. Church of God, 401 Ill 100, 81 NE 500, the court affirmed a decree enjoining defendants from operating a church in a residential area in violation of a restriction in the deed limiting the use of the property to residential purposes, where there were many more changes in the community than in the instant case before us. Basically, the determination of this question is one of fact and it cannot be said as a matter of law that the area around the doctor’s lot is so changed that the trial court should have removed the use restriction in question.

It is our conclusion, therefore, that the finding and determination of the trial court that there was a violation of the covenant for use as “residence purposes only,” and that the finding was clearly consistent with the record. The record disclosed that a building had been constructed of which 615 square feet of the 1,400 square foot first floor was devoted to an office, a baby examining room, reception room, waiting room, x-ray room, and an examination room, all of which were completely segregated from the remainder of the building and had an opening for ingress and egress apart from the entryway to the residential area. There was also a 4,800 square foot gravel parking lot occupied by as many as 14 automobiles at the same time; that as many as 30 medical patients a day came to the residence for treatment. On the basis of such showing in the record we cannot conclude that the finding of the trial judge that the premises were not being used for residential purposes only was improper.

The point is also made that the parties all recognize that the doctor could furnish emergency treatment in his home without violating the use restriction. The doing of emergency service alone would clearly not be a violation of a restrictive covenant as to use, since this would not amount to using the premises for a purpose other than residential purposes. Emergency medical treatment in a home, is something which is rarely furnished, and normally results from the fact that the patient would be in need of immediate attention in most cases (rather than risking a trip to a doctor’s office or hospital). We likewise feel that it is unnecessary to direct a modification of the decree to provide specifically for the circumstance that emergency medical treatment could be furnished by the doctor irrespective of where he might be. Such emergency medical service so furnished would not constitute a use violation and, therefore, we conclude, as the trial court apparently likewise concluded, that it is unnecessary to specify that such emergency medical treatment would not be a violation of the restrictive covenant. We likewise conclude, upon review of the entire record, that we would not be justified in setting aside the decree of the trial judge as being against the manifest weight of the evidence.

The decree of the Circuit Court of Lake County will, therefore, be affirmed.

Affirmed.

STOUDER and SCHEINEMAN, JJ., concur.


author: SCHEINEMAN, J.

text:
    In the Matter of the Petition for the Establishment of a Fire Protection District To Be Known as the Cincinnati Fire Protection District.
    Gen. No. 68-13.
    Third Judicial District.
    June 28,1968.
    Rehearing denied October 7,1968.
    Moehle, Moehle & Reardon, of Pekin, for appellants.
    Frings, Hoffman & Bagley, Harold H. Kuhfuss, and Alfred W. Black, of Pekin, for appellees.
   SCHEINEMAN, J.

The appellants filed a petition in the Circuit Court of Tazewell County to establish what was to be called the Cincinnati Fire Protection District. Some landowners filed objections and moved to dismiss the petition, which motion was allowed after hearing evidence, and this appeal followed.

Chapter 127%, section 21, of Illinois Revised Statutes, provides a method for organizing such a district, and paragraph 5 thereof directs that included territory must contain “no territory included in any other fire protection district.” Whether the petition violates this directive is the question in this litigation. If the petition is sustained, an election is called and, if the proposal carries, the court must enter an order in its records and supply a copy with the plat to the county clerk and to the Department of Public Safety.

The dispute narrows down to the Southeast quarter of Section 22, which is included in the description of the proposed district. It is owned by Roy H. Lowry, who is the county clerk of Tazewell County.

The objectors introduced in evidence a certified copy of a court order entered in Mason County, together with the accompanying plat, which established the Forman Fire Protection District, part of which is in Tazewell County. The written description states: “including all of Section 22 except the fractional northwest quarter thereof.”

The plat was not the work of a person trained in mapping or mechanical drawing. It is quite crude but it does indicate that the property owned by Mr. Lowry was included in the Forman Fire Protection District.

The appellants argue that descriptions of municipalities undoubtedly are not construed with the same strictness as are those contained in deeds and mortgages, citing People ex rel. Village of Worth v. Ihde, 23 Ill2d 63, 177 NE2d 313; People v. Knapp, 28 Ill2d 239, 190 NE2d 774; People ex rel. Curtin v. Heizer, 71 Ill App2d 6, 218 NE2d 11, and others. It is asserted that the written description of the Forman District can be regarded as sufficient by following these precedents.

The rule is correctly stated but it has no application to this case. The precedents did not contain any assertions that the statutory mandate was violated as in this case. Here, the court did not dismiss the petition because any description was insufficient, but solely because the Court found that the proposed district included territory already in the Forman District.

The appellants also contend that the plat should be rejected and the written description preferred. The authorities cited do not announce this as a general principle of law; there are cases where the plat was ambiguous but a written description was not, and in such a case the court follows the accurate description and ignores that which contains errors.

The converse is also true. Thus, a description used a river as a boundary, but did not specify which bank, or the center of the stream, was the actual line. The plat depicted the boundary along a bank of the river, so the court held that the plat must be taken as indicating the true boundary. People ex rel. Gray v. City of Rockford, 41 Ill App2d 378,190 NE2d 603.

The plat in the case at bar shows a complete enclosure and includes a substantial part of the Southeast quarter of Section 22, at least the west half thereof. In this condition of the record, the court was justified in finding that the petition violated paragraph 5 of the Statute first above quoted.

When it appears that the proposed district described in the petition includes lands already a part of a fire protection district, the court must dismiss the petition and has no power to act otherwise. People ex rel. Curtin v. Heizer, 36 Ill2d 438, 223 NE2d 128; People ex rel. Goldsberry v. Zoller, 337 Ill 362,169 NE2d 228.

In the Heizer case the petition included a small tract of land in the State of Missouri which made the petition defective. The opinion cites the Zoller case and others of similar import, and holds the same principle is involved. The court lacks jurisdiction where some of the land is already included in another similar district, the same as it lacks jurisdiction because of some land being outside of the state. It follows from these precedents, that in the present ease, the court had no jurisdiction to do anything else than dismiss the petition.

The petitioners called Roy H. Lowry as a witness and asked him whether, as county clerk, he had ever extended taxes for the Forman Fire Protection District against the Southeast Quarter of Section 22, also, whether as owner thereof, he had ever paid such taxes, or had ever received any benefit from the said district. The court sustained objections to these questions and these rulings were assigned as error.

The order of the Mason County court established the existence of the Forman Fire Protection District and, with the aid of the accompanying plat, fixed its boundaries. This was determinative of the issue in the case and the offered testimony of the witness as to his recent activities would be immaterial to any issue before the court. Its exclusion was not error. The judgment of dismissal is affirmed.

This opinion is amended in minor details on rehearing, and the petition for rehearing is denied.

Judgment affirmed.

STOUDER and ALLOY, JJ., concur.


author: MR. PRESIDING JUSTICE ABRAHAMSON

text:
    City of Rockford, a Municipal Corporation, Plaintiff-Appellee, v. Local No. 413, International Association of Firefighters, a Labor Organization, Donald Lindstrant, et al., Defendants-Appellants.
    Gen. No. 68-54.
    Second District.
    September 23,1968.

      Knight, Ingrassia and Schirger, of Rockford, for appellants.
    William E. Collins, Corporation Counsel, of Rockford, for appellee.
   MR. PRESIDING JUSTICE ABRAHAMSON

delivered the opinion of the court.

On March 26, 1968, the plaintiff, City of Rockford, brought a petition in the Circuit Court of Winnebago County to enjoin the defendant labor union, Local No. 413 of the International Association of Firefighters, and several officers of the Local, from engaging in a strike against the City and from picketing the city hall or any fire stations in the city. Notice was given to the defendants and their attorney in the late afternoon and early evening of that day that the city would appear in court the following morning, March 27, to seek a temporary injunction in accordance with the petition. All parties appeared in court on March 27 and after a short hearing a temporary order was entered that enjoined the Local, and “its officers, representatives, agents and members” as follows:

“A. Engaging in a strike or any form of cessation of work against the City of Rockford.

“B. From picketing the City Hall premises at 425 East State Street, Rockford, Illinois, and from picketing any of the Fire Stations located in the City of Rockford, Illinois.

“C. From hindering or obstructing in any manner the ingress or egress from the City Hall premises of the City of Rockford at 425 East State Street or the ingress or egress from any of the Fire Stations located in the City of Rockford, Illinois.”

On March 29, the defendants brought a two-count motion to set aside the injunction order. Count I alleged that the injunction had been improvidently issued because of certain specified defects both of procedure and substance. Count II asked, in the alternative, that paragraphs B and C of the injunction order be dissolved since “said paragraphs applied to an unlawful strike” and the strike or work cessation had already ended. The court denied the motion and this interlocutory appeal followed.

It has been universally agreed in all reported decisions that public employees have no legal right to engage in a strike. This rule has been given additional expression in the recent Illinois case of Board of Education of Community Unit School Dist. No. 2 v. Redding, 32 Ill2d 567, 207 NE2d 427, wherein our Supreme Court at pages 571 and 572 stated:

“The underlying basis for the policy against strikes by public employees is the sound and demanding notion that governmental functions may not be impeded or obstructed, as well as the concept that the profit motive, inherent in the principle of free enterprise, is absent in the governmental function.”

Both parties acknowledge that this is the law but the defendant maintains that the members of Local 413 were engaged in a “work dispute” only, not a strike.

The evidence disclosed that at approximately 10:00 p. m. on March 24, the Rockford City Council, at a public hearing, passed a budget for the forthcoming year that failed to include wage increases for the firemen as demanded by Local 413. At 10:30 p. m., the Local advised the acting fire chief that as of 12:00 p. m. all fire stations would be maintained by partial staffs on schedules to be arranged by a committee of the local union. All firemen in the city except for the Chief and two Assistants were apparently members of the union. Thereafter, the fire stations were maintained by staffs approximately 50% smaller than normal and, in the opinion of the Chief, the city was not receiving adequate fire protection as a result of this arrangement. Testimony was presented by the defendants that the city was adequately protected under the maintenance schedules operated by their committee as evidenced by the fact that 17 fire alarms had been answered during the period of their control.

“A strike has been defined as a cessation of work by employees in an effort to get for employees more favorable terms.” Bankston Creek Collieries v. Gordon, 399 Ill 291, 298, 299, 77 NE2d 670. There is no question in our minds that the firemen of the City of Rockford were engaged in a strike. The fact that the work stoppage was not complete does not alter the obvious purpose of the firemen to realize their demands by withholding their services.

The defendant further urges that the city was not entitled to a temporary injunction in any event since there was no showing of irreparable harm in that the crucial services of firemen were performed on an adequate, if partial, basis. That contention is squarely refuted by the same case of Board of Education v. Red-ding, supra, where a union of school custodians was enjoined from a strike even though the striking employees offered to perform essential services so that the schools could continue to operate. The court stated, at page 573, that:

“These circumstances, however, can be of little consequence, for the fact remains that an important governmental function is nonetheless still being impeded and adversely affected as a result of the strike. What is more, to be thorough and efficient, school operations cannot depend upon the choice or whim of its employees, or their union, or others, but must necessarily be controlled only by duly constituted and qualified school officials.”

If it is true that a school board cannot permit a union or group of employees to control the custodial care of its schools, it is at least equally true that a city cannot permit the control of its fire department to be arbitrarily assumed by the firemen themselves. Although, as pointed out by the defendants, the evidence in the Red-ding case showed that the school district had already been injured by the refusal of the custodians to perform their services, it is not necessary that the city wait until a fire occurs of such gravity to be beyond the control of the undermanned staff appointed by the union to receive injunctive relief. While it is true that a temporary injunction is a drastic remedy to be used only in cases of great emergency and gravity, the circumstances clearly warranted its use in the present case. Streamwood Home Builders, Inc. v. Brolin, 25 Ill App2d 39, 165 NE2d 531.

The procedural defects of which the defendant complains are largely concerned with the short notice furnished them before the hearing on the temporary injunction. It is apparent from the record that counsel for the defendants was aware of the strike from its inception and was hardly taken by surprise in the action of the city. He appeared with the defendants on the specified date, acknowledged the jurisdiction of the court, offered testimony and did not object to the lack of timely notice. There is no evidence whatsoever that the defendants were in any way prejudiced by the short notice and considering the nature of the matter the court was well within its area of discretion in permitting the hearing to proceed on that date.

A more difficult issue to confront was raised by the refusal of the trial court to dissolve paragraphs B and C of the original order after the strike itself had ended. It was stipulated that the firemen returned to work on a normal basis within a few hours of the issuance of the temporary injunction. The defendants maintain that the picketing was unlawful, if at all, only when it was an organic part of an unlawful strike and that therefore when the strike itself ended the picketing was no longer illegal. Picketing is generally held a valid method of expression and, if peaceable, subject to constitutional safeguards. Ordinarily, an injunction will not be granted against peaceable picketing for a lawful purpose. Cielesz v. Local 189, Amalmagated Meat Cutters & Butcher Workmen, of North America, AFL-CIO Union, 25 Ill App2d 491, 497, 167 NE2d 302. Although there is some doubt as to the legality of picketing in this case, the record discloses no evidence that it obstructed the governmental functions of the city. Unlike a concerted strike by firemen or others engaged in the protection of society, picketing does not of itself contain an inherent threat to public safety and absent proof of actual interference with governmental functions should not be subject to a temporary injunction.

We, therefore, conclude that Paragraph A of the Order of March 27, 1968, be affirmed and that Paragraphs B and C of said Order be reversed and the cause remanded.

Affirmed in part, reversed in part, and remanded.

MORAN and SEIDENFELD, JJ., concur.