author: ABRAHAMSON, P. J.

text:
    James I. McCaslin, et al., Plaintiffs-Appellants, v. John L. Moore, Defendant-Appellee.
    Gen. No. 65-62.
    Second District.
    February 4, 1966.
    Paul F. O’Neil, of Rochelle, for appellant.
    John L. Moore, of Oregon, for appellee.
   ABRAHAMSON, P. J.

This is an appeal from an order of the Circuit Court of Ogle County dismissing the amended petition to contest the election of the State’s Attorney of that county which was held on November 3,1964.

The amended petition stated in substance that the petitioners were electors of Ogle County; that they voted in the election of November 3, 1964; that to their information and belief a mistake was made in counting the votes in two precincts inasmuch as votes for a straight Republican ticket except for the office of State’s Attorney were counted as votes for both the Republican and Democratic candidates; and that if the votes had been properly counted, “the Democratic candidate, Cuve M. Glosser, actually received more votes than the Republican candidate, John L. Moore.” The petition then prays for a recount of the votes in those precincts.

A motion to dismiss was filed by the Republican candidate and apparent winner of the election, stating that the “petition does not allege facts which show the irregularities which are alleged to have occurred, if proved, would change the results of the election and that the said petition does not state a cause of action for which the proper relief could be granted by the court”. On February 25, 1965, the trial court sustained the motion and dismissed the amended petition. A memorandum by the trial judge appears in the record by which she purports to establish, by a bewildering array of complicated computations, that the allegations in the amended petition were mathematically impossible. We must confess that we were unable to follow the logic in the memorandum with any semblance of precision.

The right to contest an election is a statutory one designed to effectuate the will of the people through orderly democratic procedures. Smith v. Township High School Dist., 335 Ill 346, 350, 167 NE 76; Mayes v. City of Albion, 374 Ill 605, 609, 30 NE2d 416.

The procedure to be followed to contest an election is provided in article 23 of the Election Code. Illinois Revised Statutes, Chapter 46. Paragraph 20 of that article sets forth the requirements of contesting the election of, among others, State’s Attorneys.

“23-20. Statement of contest—Verification. The person desiring to contest such election shall, within thirty (30) days after the person whose election is contested is declared elected, file with the clerk of the proper court a petition, in writing, setting forth the points on which he will contest the election, which petition shall be verified by affidavit in the same manner as complaints in other civil cases may be verified. Copies of such petition shall be delivered by mail to each proper clerk or board of election commissioners who is custodian of any ballots involved in the contest. The petition shall allege that the petitioner voted at the election, and that he believes that a'mistake or fraud has been committed in specified precincts in the counting or return of the votes for the office or proposition involved or that there was some other specified irregularity in the conduct of the election in such precincts, and the prayer of the petition shall specify the precincts in which the recount is desired.”

The pleadings in election contests are not normally subject to the precise technical rules of ordinary civil actions. Joyce v. Blankenship, 399 Ill 136, 140, 77 NE2d 325. Nonetheless, it is necessary, that compliance is made with the substantial requirements of the statute in order to confer jurisdiction on the court. Patterson v. Crowe, 385 Ill 514, 53 NE2d 415; Whitey v. Frazier, 21 Ill2d 292, 171 NE2d 644.

The Supreme Court has held that, in addition to the requirements of the statute, that the petition must allege that the recount will change the result of the election. Zahray v. Emricson, 25 Ill2d 121, 124, 182 NE2d 756; Easdale v. Sparta Community School Dist., 29 Ill 2d 554, 194 NE2d 306. This rule will eliminate the proliferation of unjustified and inconsequential election contests which would otherwise waste the court’s time and do damage to our democratic creed.

The amended petition in this case falls far short of affording a basis for the contest sought. It neither alleges that the irregularities complained of would change the result of the election, nor does it allege facts which show that the irregularities would have such a result, and which, if proved, would render it the duty of the court to declare a defeated candidate elected. The petition fails to set out how many votes were cast in the election, how many votes were received by any of the candidates, and for all that appears in the petition the difference in votes may have been so great that none of the irregularities alleged could have affected the outcome. For these reasons, we feel that the amended petition was such that the Motion to Dismiss and the Order of the trial court are correct. Zahray v. Emricson, supra.

The judgment of the Circuit Court of Ogle County striking the petition is affirmed.

Judgment affirmed.

DAVIS and MORAN, JJ., concur.


source: Caselaw Access Project

author: EBERSPÁCHER, J.

license: Public Domain

text:
    Commonwealth Loan Company, a Corporation, Plaintiff-Appellant, v. James W. Baker, Defendant-Appellee, and General Steel Industries, Inc., a Corporation, Garnishee-Appellee.
    Gen. No. 64-102.
    Fifth District.
    February 4, 1966.
    Supplemental Opinion, March 23, 1966.
    Rehearing denied March 23, 1966.

      Green and Hoagland, of Alton (James K. Almeter, of counsel), for appellant.
    Lueders and Robertson, of Granite City, for garnisheeappellee.
   EBERSPÁCHER, J.

Commonwealth Loan Company, plaintiff-appellant, obtained judgment by confession against James W. Baker in the amount of $771.68 and costs of suit, and then served a garnishment summons upon garnishee-appellee, General Steel Industries, Inc. General Steel Industries, Inc. was indebted to Baker in an amount in excess of the judgment for money which came from a private group insurance plan.

Commonwealth Loan Company caused a citation writ to discover assets to be served upon General Steel Industries, Inc. Upon the hearing thereof, on July 9, 1964, Baker contended that the funds being held by General Steel Industries, Inc. were exempt from garnishment under provisions of Illinois Revised Statutes, chapter 52, section 13, Second which exempts from execution;

“For one year after the receipt thereof all money received by any person a resident of this State as a pension, adjusted or additional compensation or a bonus from the United States Government or from the State of Illinois on account of military or naval service, whether the same shall be in the actual possession of such person or deposited or loaned;”.

The record shows that defendant-appellee Baker had, up until September 26, been an employee of the garnisheeappellee and had $800 credit there which he called “my retirement money” and testified that the money was from a group insurance plan, it being contributed by the employer and was to be held until six months before his retirement and to be paid over to him in October of 1964. At the close of the hearing, the court took the matter under advisement.

It is uncontroverted that both the file and the docket. sheet were inadvertently kept in the Judge’s Chambers until either November 5 or 6, 1964. Appellant’s counsel’s affidavit, attached to his petition for leave to appeal, states that he had on several occasions between July 22, 1964, and November 5, 1964 checked with the Clerk to ascertain as to whether there had been a ruling, and that on each such occasion he was advised that neither the file nor the docket sheet had been returned; further that on November 5, 1964 he contacted the court directly and asked if a ruling might be forthcoming in the near future, and that on the following day, November 6, 1964, the undersigned was advised that ruling had been made on July 22, 1964. The affidavit further stated that the Court inadvertently failed to instruct the Clerk previous to the November date to notify the parties of his ruling.

The record shows that on the 22nd day of July, 1964, the court had entered the following order:

“Now on this day the court having received the. memorandum of authorities and being fully advised in the premises does hold that the defendant James W. Baker is entitled to the exemption provided by Chapter 52 Section 13 Paragraph 2 Illinois Revised Statutes and that it ordered that his employer General Steel Industries, Inc., a Corporation Granite City, Illinois turn over to the defendant James W. Baker such sums as are in their custody standing in his name or credited to his account without regard to any Garnishment proceedings now pending.”

The facts stated in appellant’s counsel’s affidavit are not disputed.

The petition for leave to appeal was granted after the filing of a motion to dismiss on behalf of General Steel Industries, Inc., which stated that said appellee on or about the 22nd day of August, 1964, received notice of the order of the trial court and that pursuant to the said order General Steel Industries, Inc. had delivered the funds to Baker, the defendant-appellee, and that this appellee was thus acquitted and released from any further proceedings in this cause. Objections to the motion urge that the motion did not state grounds for which the petition for leave to appeal might be dismissed but only sought to respond to the petition, and that the motion failed to comply with Rule 21 of this court with reference to the printing of responses to petitions for leave to appeal. This court took the motion with the case and the garnishee-appellee subsequently filed a statement, brief, and argument.

Garnishee-appellee contends that after an order is entered upon a garnishee it is the duty of the garnishee to transfer the garnished fund to the person entitled thereto without regard to potential unperfected appeal rights, citing Genden v. Bailen, 275 Ill App 382, and Chicago Title & Trust Co. v. La Porte Bldg. Corp., 274 Ill App 335, and further argues that a garnishee who refuses or neglects to comply with the order of the court may be attached and punished for contempt, citing Illinois Revised Statutes 1963, chapter 62, sec 47 and Framheim v. Miller, 241 Ill App 328. He further argues that in each of those cases the appeal period had expired, and that the court had to determine the liability of a garnishee after expiration of appeal, but before the expiration of the writ of error period, and conceding that writ of error practice has been abolished and writ of appeal procedure has been substituted therefor, argues that the garnishment laws should not be unduly disrupted merely because the former writ of error practice has been supplanted by writ of appeal procedure, and suggests that should this Court grant relief to the appellant herein, garnishees throughout the State would be placed on notice to forbear from complying with trial court orders until expiration of the period within which a petition for appeal will lie. Appellee makes no pretense that the order of the trial court was correct.

Plaintiff-appellant contends that the plain language of the Statute cited above clearly grants an exemption to pensions, etc., received from the United States Government or the State of Illinois on account of military service and points out that the money which the garnishee held in this case came from a private group insurance plan and is not included among the exemptions granted by the Statute. Appellant further points out that the garnishee was a party to the litigation, having been duly served with process; that although the file and docket sheet were not in the Clerk’s office, but were in the trial court’s chambers, the defendant and garnishee somehow learned of the order and early in September 1964, without giving the plaintiff-appellant any notice, the garnishee paid the defendant Baker the money it held, pointing out that the payment was made within the sixty-day period, when it knew that plaintiff still had the right to appeal, by notice of appeal, from the order of July 22, 1964 (although it did not have the right of an automatic supersedeas. Illinois Revised Statutes, 1963, chapter 110, sec 76). The check was paid by garnishee’s bank on September 9,1964.

In each of the cases cited by the garnishee-appellee herein, an order directing payment of garnished funds was entered, however in both cases an appeal from the orders was begun but never perfected and since the orders stood without being appealed, the courts held that there was no justification to withhold payment of the money. Here, however, an appeal from the order in question has been perfected, and is being prosecuted with reasonable diligence taking into consideration the factual situation.

In First Nat. Bank of Jonesboro v. Road Dist. No. 8, 389 Ill 156, 58 NE2d 884, the road district had deposited in a special account in the First National Bank of Jonesboro proceeds arising from the collection of taxes in 1915 and 1916 and subsequently instituted suit against the bank to recover the amount of its special deposit. Thereupon the First National Bank filed its complaint to restrain the Road District from prosecuting its suit against the bank and prayed for a decree determining the ownership of the fund and directing disposition thereof. All of the various claimants to the fund were made parties defendant. On October 24, 1941, a final decree was entered permanently enjoining the prosecution of the suit at law and apportioning the funds and directing the bank to make distribution. Road District No. 8 perfected an appeal to the Supreme Court which transferred the cause to the Appellate Court of the Fourth District and that court being advised that the bank had made distribution in accordance with the decree of the trial court, dismissed the appeal, holding that inasmuch as no supersedeas had been granted the controversy involved in the appeal as to the ownership of the funds had become moot. The Supreme Court reversed the judgment of the Appellate Court and held that when the bank made distribution, and when the appellees accepted the same they took their chances of said decree being reversed and if said decree upon final disposition should be reversed, the appellees who had received, under the decree, monies to which they were not entitled, should be required to make restitution. In that case the Court said:

“. . . It is not reasonable to suppose that the legislature intended that a judgment or decree for the payment of money should, upon its enforcement by execution or otherwise, in the absence of a supersedeas pending an appeal, become final and no longer subject to review, so as to require the dismissal of the pending appeal, notwithstanding provision is expressly made for the prosecution of an appeal without supersedeas. A party to a suit is presumed to know of all the errors in the record, and such party cannot acquire any rights or interests based on such erroneous decree that will not be abrogated by a subsequent reversal thereof. If such party has received benefits from the erroneous decree or judgment, he must, after reversal, make restitution, and, if he has sold property erroneously adjudged to belong to him, he must account to the true owner for the value. ... A party to a decree cannot acquire any rights thereunder while the same is subject to review which he can assert after the decree is reversed, since the effect of the reversal is to abrogate the decree and leave the cause as it stood prior to the entry of the decree.”

Under the facts and circumstances in this case, particularly the concealment of the trial court’s order of July 22, 1964, until the time to appeal within sixty days, had passed, the quoted language from First Nat. Bank v. Road Dist. No. 8, supra, is applicable in this case, involving garnishment.

Furthermore, although not argued by appellant herein, the rendition of judgment is a judicial act performed by the court at the time the court makes its pronouncement. A judgment at law becomes effective as soon as it is pronounced by the court; it is not valid unless passed in open court; it should not be made or rendered by the Judge at Chambers, Freeport Motor Cas. Co. v. Tharp, 406 Ill 295, 94 NE2d 139, and cases cited therein. Pronouncement means to utter officially, declare solemnly, declare publicly, announce, to utter or speak aloud, to deliver as a speech, to utter words. Words and Phrases 34 Pronounce, p 575. Freeport Motor Cas. v. Tharp, supra. A letter by a trial judge accompanying a written judgment order mailed to the clerk and directing the clerk to file the order, becomes an effective judgment or decree at the time it is filed with the clerk. Nichols Illinois Civil Practice, ch 79, sec 4015, People ex rel. Schwartz v. Fagerholm, 17 Ill2d 131, 161 NE2d 20. In the present case, on the uncontradicted facts, there was no judgment until early in November 1964, and appellee-garnishee cannot be heard to urge that his payment to Baker in early September was pursuant to any authority. To hold otherwise would render ineffectual the statutory requirement for the clerk to spread the judgment upon the record as soon after the rendition or making thereof as practicable, Ill Rev Stats ch 25, sec 14, and providing for a fine for failure to do so within thirty days after the judgment is made and rendered, Ill Rev Stats ch 25, sec 15. A clerk has no more license or duty to invade the privacy of the Judge’s Chambers to determine if judgment has been rendered, than have counsel for the litigants. We can conceive of no situation or circumstance which justifies the removal of the docket sheet from the clerk’s office or courtroom, by the Judge or any other party. The rendering of a judgment is not and must not be a secret process, it must be a public act. To hold otherwise would destroy public confidence in the entire judicial system.

The second exemption provided by section 13, chapter 52, Illinois Revised Statutes, enacted in 1923 at a time when private pensions or retirement funds were relatively rare, and at a time when the United States Government, and some states including Illinois had enacted legislation for military pensions or bonuses; furthermore, its language is so clear, that it is elementary that a private pension or retirement fund is not exempt by its provisions, and we can easily understand why this is a case of first impression with reference to its interpretation. Garnishee-Appellee when it paid out the funds, and Defendant-Appellee Baker, when he accepted them, took their chances that the judgment might be appealed from, and reversed.

We therefore, deny garnishee-appellee’s motion to dismiss the petition for leave to appeal, and reverse the judgment of the Circuit Court of Madison County, and remand the cause for further proceedings consistent with this opinion.

Reversed and remanded.

GOLDENHERSH, P. J. and MORAN, J., concur.

Supplemental Opinion on Denial of Rehearing

The first sentence of the second paragraph of the opinion filed herein is corrected to read as follows:

“Commonwealth Loan Company caused a citation writ to discover assets to be served upon the judgment debtor, Baker.”

Since Garnishee-Appellee, General Steel Industries, Inc., had been served with a garnishment summons, it was a party to the suit in which the order appealed from was entered. It was an interested party, as distinguished from a disinterested stakeholder, when it paid out the funds without notice to Plaintiff-Appellant, allegedly pursuant to an order which had not become effective because it had not been pronounced by the court. Neither was Garnishee-Appellee a disinterested stakeholder when it filed its motion to dismiss the petition for leave to appeal alleging that it was acquitted and released from further proceedings because it paid out the funds to Baker pursuant to the alleged order of July 22, 1964, and set forth no other grounds for dismissing the appeal, and will not be heard on petition for rehearing, to urge for the first time, that the appeal has not been perfected, and that the trial court judgment therefore must stand as entered.

GOLDENHERSH, P. J. and MORAN, J., concur.


author: MR. PRESIDING JUSTICE ABRAHAMSON

text:
    People of the State of Illinois ex rel. the County of Du Page, a Body Politic and Corporate, Plaintiff-Appellant, v. John B. Lowe, et al., Defendants-Appellees.
    Gen. No. 65-32.
    Second District.
    February 7, 1966.

      William V. Hopf, State’s Attorney, and Edgar J. Elliott, Assistant State’s Attorney, both of Wheaton, for appellant.
    Samuel A. La Susa and Dom J. Rizzi, both of Chicago, for appellee.
   MR. PRESIDING JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal by the People from an order entered by the County Judge in a quo warranto proceeding finding that the defendants were in all respects the lawfully elected officials of the Village of Weston.

Proceedings for incorporation as a village were had in the early part of 1963, pursuant to the Illinois Municipal Code, Illinois Revised Statutes, 1961, chap 24, sections 2-3-5 and 2-3-6. On April 26, 1963, the County Judge entered an order on the petition filed for an election which set forth the date of the election, polling places and the usual provisions required in calling a special election and further found that the petitioners had complied with the foregoing sections. The order failed to make a finding that the area sought to be incorporated was a village in fact. The testimony offered at the hearing to substantiate the allegations of the petition was restricted to the requirements set forth in section 2-3-5, supra.

Section 2-3-6, supra, as amended by the Legislature in 1959, and contained in the Illinois Municipal Code, reads as follows:

“Upon the filing of such a petition with the county clerk, the county judge shall hear testimony and rule that the area under consideration is or is not a village in fact. The ruling of the judge shall be entered upon the records of the county court. If the judge rules that the area does not constitute a village in fact, the petition to incorporate the area as a village is denied. . . .”

It is contended that a compliance with all of the factual requirements set forth in section 2-3-5 fulfills the Legislative concept of a village in fact and that section 2-3-6 merely prescribes the duties of the County Judge and is a mere procedural section, an amendment to which does not change an existing substantive section of the same statute.

It appears to us that the Supreme Court has indicated a contrary opinion in Western Nat. Bank of Cicero v. Village of Kildeer, 19 Ill2d 342, at Page 353, 167 NE2d 169, which was decided on the statute before the amendment, wherein the Court stated:

“The first mention of ‘village in fact’ in the statutes of this State occurred in 1959 when the General Assembly amended section 3-6 of the Revised Cities and Villages Act to provide that upon the filing of the petition for incorporation the county judge shall hear testimony and ‘rule that the area under consideration is or is not a village' in fact’. (Ill Rev Stats 1959, chap 24, par 3-6.) We believe that the meaning of sections 3-5 and 3-6 as they existed prior to 1959 is indicated by the action taken by the legislature in 1959 when it amended section 3-6 to add the ‘village in fact’ concept.
“The interpretation placed upon a statute by the legislative department may go far to remove doubt as to its meaning, and it is proper for us to consider the subsequent amendment to a statute in determining the intent and meaning of the statute prior to amendment. (50 Am Jur par 337, pp 238 and 239; First Nat. Bank v. Missouri, 263 US 640, 68 L Ed 486; Domarek v. Bates Motor Transport Lines, (7th cir) 93 F2d 522; State Tax Comrs. v. Holliday, 150 Ind 216, 49 NE 14.) The addition of a new provision in a statute by amendment is an indication of the absence of its implied or prior existence. Shine v. John Hancock Mutual Ins. Co. 76 RI 71, 68 A2d 379.”

We interpret this language to indicate the concept of a “village in fact” is now the requirement for the incorporation of a village.

It is next urged that the order of April 26, 1963, finding that compliance was had with section 2-3-6 is manifestly clear in that before ordering the election the county judge did determine that the area was a village in fact. Our attention is called to Smith v. Smith, 36 Ill App2d 55, at page 59,183 NE2d 559:

“If a court signs an order which includes the words ‘the court was fully advised in the premises,’ we conclude, in the absence of any contrary indication in the order or in the record, that the court heard adequate evidence, received enough information or listened to sufficient law and argument, as the necessity of the particular case required, to enable the court to reach what it believed to be the right decision on the issue presented.”

This case was a divorce proceeding where the Chancellor acted in a judicial capacity. The role of the court in a proceeding of this nature is administrative. In establishing a municipal corporation the County Court derives its jurisdiction from the statute alone. No presumption arises to support its action in any particular. The conditions of the statute authorizing the creation of the municipal corporation must be complied with in the manner prescribed by statute, else the court is without jurisdiction. . . . People ex rel. Moran v. Telois, 20 Ill2d 95, at page 99, 169 NE2d 232.

Lastly, defendants urge that the Village of Weston has been incorporated within the spirit, object and meaning of the statute. We can only answer this by stating that a plea of justification to an action in quo warranto must allege the existence and performance of all of the conditions precedent to the defendants’ right to exercise the privilege of office. People ex rel. Moran v. Telois, supra. We conclude that defendants’ plea of justification, entitled “Further Defense,” is totally lacking in facts to establish the “village in fact” concept as required by section 2-3-6, supra. Where justification is attempted, defendants must aver by their plea, all necessary facts to show their lawful authority to wield the powers exercised by them. Their statement in such plea, that the County Judge found “that a village in fact did exist,”—when the record shows that the order of the County Court did not contain such finding—is a conclusion of the pleader and fails to support the defendants’ plea of justification. People v. Sackett, 351 Ill 363, 369, 184 NE 646.

The matter is therefore reversed and remanded with directions to enter an Order of Ouster.

Reversed and remanded with instructions.

DAVIS and MORAN, JJ., concur.


author: MR. JUSTICE MORAN

text:
    Bobby Maddox, a Minor, by His Mother and Next Friend, Daisy Maddox, Plaintiff-Appellant, v. Dorothy N. Smith, Defendant-Appellee.
    Gen. No. 65-68.
    Second District.
    February 7, 1966.

      Crowe arid Strass and John C. Mullen, both of Dundee, for appellant.

      Rathje, Woodward & Dyer, Associates, of Wheaton, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of this court.

Plaintiff Bobby Maddox, a four-year-old minor, was struck by an automobile driven by the defendant while he was running across South Seventh Avenue in St. Charles. He filed suit for-his personal injuries through his mother and next friend. A jury found the issues in favor of the defendant. After the denial of his motion for a new trial, this appeal followed.

Plaintiff charges as grounds for reversal that the trial court erred in denying plaintiff’s motion for a directed verdict, in refusing to give certain instructions tendered by plaintiff and that the verdict was the result of passion and prejudice induced by improper arguments of counsel for defendant, as well as improper statements made by a perspective petit juror in another case.

Plaintiff contends he was entitled to a directed verdict in his favor since he was under the age of seven years; and therefore, incapable of being guilty of contributory negligence and because there is evidence in the record of the defendant’s negligence.

Defendant was the only eyewitness to the occurrence. She testified that she resided on South Fifth Place in St. Charles about two blocks from the accident scene. She had traveled on South Seventh Avenue regularly and on the day in question she left her home around 9:00 o’clock in the morning for her mother-in-law’s home. Her fourteen-month-old son was sitting in the front seat of the automobile beside her. She traveled northeasterly on South Fifth Place and stopped at the intersection of South Seventh Avenue to let a car proceeding from the opposite direction pass before turning north onto South Seventh Avenue.

She went on to testify that South Seventh Avenue is a two-lane paved residential street and that the accident occurred about a block from South Fifth Avenue. She stated that when she first saw the plaintiff she was traveling between 20 and 25 miles per hour and was 50 to 100 feet from him. He was standing on the east side off the roadway' on the grass. He was then standing still, looking across the street to the west. She further testified that she did not anticipate the plaintiff crossing the street and that she had taken her foot off the gas pedal as an automatic reaction because a child is so unpredictable. She disclosed that about the time she had her foot off the gas pedal, the plaintiff ran in front of her and she applied the brake. She also pulled her car to the left trying to avoid hitting him and claimed there was no time to sound her horn. She stated she could not tell if the plaintiff looked in her direction before he was hit but believed that he did not. She related that her car was skidding when the impact occurred but did not know how far she traveled after the impact.

A police officer who investigated the occurrence testified that South Seventh Avenue is a heavily traveled road with a speed limit of thirty miles per hour. He noticed that there were blood spots approximately 24 feet in front of the car and some 9 feet from the west curb. He paced off skidmarks and found them to be 30 to 33 feet. He testified that based on his study of charts pertaining to stopping distances of cars with good brakes on dry pavement, a car traveling twenty-five miles per hour would require 40 to 42 feet to stop after the brake pedal is applied and that a car traveling thirty miles per hour would require 60 feet to stop after the brake pedal is applied.

Another witness, Erskine Pritchett, testified that he came to the scene after the accident. He saw skidmarks and measured them with a tape. The skidmarks began close to the south side of a driveway and extended 40 to 45 feet to the northwest of the driveway. He says the skidmarks were 54 feet long.

It would appear that when the defendant first saw the boy she was driving her car within the posted speed limit on a dry pavement during the daylight hours. The boy was standing on the grass parkway. Defendant was under no obligation under these circumstances to sound her horn at that time since Chapter 951/2, Section 212 of the Illinois Revised. Statutes applies only where the pedestrian is on the roadway. The defendant did, according to her testimony, take her foot from the accelerator and when she observed the boy suddenly dart into the roadway she applied her brakes sufficiently hard to lay down skidmarks and she turned to the left in an effort to avoid him. She testified that she did not at that time have an opportunity to sound her horn. We do not find her guilty of negligence as a matter of law in failing to sound her horn under those circumstances.

Further, there is no satisfactory evidence that the defendant was guilty of driving at an excessive speed. From the testimony of the police officer and the witness Pritchett it would appear that the skidmarks were either 30 to 33 feet in length or 54 feet in length. Based on this evidence the defendant was traveling either slightly less than twenty-five miles an hour or slightly less than thirty miles per hour and either speed was a lawful speed under the circumstances.

We believe that whether defendant was negligent in the operation of her automobile was properly a question of fact for the jury to decide. In the case of Turner v. Seyfert, 44 Ill App2d 281, 194 NE2d 529 (1963), the court stated at page 285:

“When the evidence is all in, and a motion for a n. o. v. or for a directed verdict is made by the plaintiff, the trial court must consider all of the evidence in its aspect most favorable to the defendant, together with ail reasonable inferences to be drawn therefrom, and if when so considered there is any evidence standing alone and considered to be true, together with the inferences that may legitimately be drawn therefrom, the court should not grant the motion.”

We next direct our attention to Plaintiff’s Instructions No. 8 and No. 10 refused by the trial judge. Instruction No. 8 contained only the second paragraph of IPI Instruction No. 70.03. The court did allow Plaintiff’s Instruction No. 13, which contained both paragraphs of IPI No. 70.03. This was proper. Deeke v. Steffke Freight Co., 50 Ill App2d 1, 199 NE2d 442 (1964).

Plaintiff attempts to distinguish the Deeke case ruling upon the' difference of the facts between the two cases. We have examined this argument carefully and cannot accept it. We affirm the reasoning of the opinion in the Deeke case in pointing out that the two provisions of the statute are applicable and should not be separated in this type of case since the one counterbalances the other. The two provisions of the statute, taken together, make it clear that the right-of-way given to the pedestrian at a crosswalk and not other points and the right-of-way given to vehicles at a crosswalk and not other points are not absolute rights. Plaintiff’s tendered Instruction No. 10 was as follows:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
“Every automobile of the first and second division when operated upon a highway shall be equipped with a horn in good working order and capable of emitting sound audible under normal conditions from a distance of not less than 200 feet.
“The Driver of a motor vehicle shall when reasonably necessary to insure safe operation give audible warning with his horn but shall not otherwise use such horn when upon a highway.
“If you decide that Mrs. Smith violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not Mrs. Smith was negligent before and at the time of the occurrence.”

While it is true, as defendant argues, that the first sentence of the statute, Chapter 951/2, Section 212a, Ill Rev Stats, was not directly supported by proof in this case, the second sentence of the statute was applicable and was pleaded and argued by the plaintiff. The trial court should properly have given this instruction; however, we feel that the error was not prejudicial or reversible and did not deprive plaintiff of a fair and impartial trial, since Plaintiff’s Instruction No. 13, pertaining to the use of the horn and containing the language of the statute, Chapter 95^, Section 172, Ill Rev Stats, did contain some reference to the use of the horn.

Plaintiff’s third contention is based on possible prejudice or bias existing in the minds of the jurors. It appears from affidavits in the record that a few days prior to the commencement of the instant case during the voir dire examination of the jurors in another case, one of the prospective jurors delivered a diatribe against plaintiffs who filed suits against insured defendants. This particular prospective juror was a secretary for an insurance adjusting firm. She spoke for several minutes making derogatory statements about persons and their attorneys who file suits for personal injuries in anticipation of recovering substantial compensation from insurance companies.

The affidavits assert that one or more of the jurors in the instant case were on the same jury panel and were present in the court room at the time of the prospective juror’s oration. Further, that these circumstances were unknown to plaintiff’s counsel at the time of the selection of the jury in this case. Counsel’s affidavit states that had he known of these facts during the trial he would have moved for a mistrial and requested the case be continued until such date as a new panel of jurors would be available for service.

It is suggested that all of the jurors on the panel either heard the prejudicial statements of the adjusting firm’s secretary or were allowed to commingle with jurors who had heard these statements.

We do not question but that these statements were prejudicial in the case in which they were made and we note that the trial court declared a mistrial in that case. There is no adequate showing, however, that such statements resulted in any bias or prejudice in this case. The voir dire examination of the jurors in this case was not included in the report of proceedings and we cannot presume that the trial judge and the attorneys failed to interrogate the jurors as to their qualifications and freedom from bias and prejudice prior to their being accepted.

Jurors come from all walks of life and have a multitude of experiences. The jurors were specifically instructéd in this case in Plaintiff’s instruction that in considering the evidence in the case they were not required to set aside their own observation and experience in the affairs of life. It would be difficult for an observant person to long exist in our society without being subjected to both direct and implied pressures either in favor of or against personal injury claims and litigation. Newspapers and other media constantly report jury verdicts and often the ad damnum stated in personal injury complaints filed. On the other hand, articles pertaining to insurance premiums and advertisements sponsored by various segments of the insurance industry are commonly found. We cannot presume that all prospective jurors are oblivious to this written and spoken word, however, we can presume in the absence of any specific showing to the contrary that in any given case the individual members of the jury will faithfully perform their duties of fairness and impartiality to the best of their ability. See People v. Ward, 32 Ill2d 253, 204 NE2d 741 (1965).

Christian v. New York Cent. R. Co., 28 Ill App2d 57, 170 NE2d 183 (1960) is to be distinguished in that there the voir dire examination of jurors was conducted in violation of Supreme Court Rule 24-1. The plaintiff’s attorney was “permitted to run rampant in the selection of this jury” and the trial judge’s comments to prospective jurors were also held to be improper. Similarly People v. Kirkpatrick, 413 Ill 595, 110 NE2d 519 (1953), is also distinguishable. In that case there had been a prior trial and conviction of another defendant jointly accused of the same crime in which the defendant was called as a witness and forced to claim his constitutional privileges. Likewise, Murphy v. Lindahl, 24 Ill App2d 461, 165 NE2d 340 (1960), and City of Quincy v. V. E. Best Plumbing & Heating Supply Co., 17 Ill2d 570, 162 NE2d 373 (1959), are not applicable.

Appellant’s final contention is that defendant’s counsel was guilty of improper conduct causing passion and prejudice on the part of the jury. The alleged statements of counsel pertained to his speculation as to where the boy might have been before the accident and in arguing about the defendant’s reaction time in applying the brakes on her automobile. We find no reversible error in these remarks and feel that these remarks were within the broad latitude granted to attorneys during their final arguments in drawing reasonable inferences and conclusions from the testimony. Reinmueller v. Chicago Motor Coach Co., 341 Ill App 178, 93 NE2d 120 (1950).

The judgment of the Circuit Court of Kane County is affirmed.

Judgment affirmed.

ABRAHAMSON, P. J. and DAVIS, J., concur;


author: CORYN, P. J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Louis Dilworth, Defendant-Appellant.
    Gen. No. 65-11.
    Third District.
    February 8, 1966.

      William H. Henning, of Galesburg, for defendant-appellant.

      Donald C. Woolsey, State’s Attorney, of Galesburg, for plaintiff-appellee.
   CORYN, P. J.

The defendant, Louis Dilworth, was charged in a multiple count indictment with murdering his wife, Mary Louise Dilworth, on July 24, 1968, in Knox County. The jury found him guilty of murder as charged in Counts II, IV and VI of the indictment. Judgment was entered on this verdict, whereupon defendant was sentenced to a term of from twenty-five to forty years in the Illinois State Penitentiary. From this judgment, defendant takes this appeal, raising numerous issues, but not contesting the sufficiency of the indictment.

The prosecution’s evidence established that the defendant and his wife worked and lived in Carbondale, Illinois, with several of their minor children. On July 17, 1963, the decedent left her husband and went to Galesburg, Illinois, to stay with her son-in-law and daughter, Robert Campbell, Jr. and Margaret Jane Campbell. When the defendant discovered that his wife had left him, he went to the Carbondale home of another of his married daughters, Willa Mae Johnson, and her husband, Michael Johnson, to find out if she and her husband knew of his wife’s whereabouts. Neither gave Dilworth any information, but did consent to drive him to Memphis to see if Mrs. Dilworth was visiting there with her sister. When they got as far as Fullerton, Kentucky, they called Memphis and were told that the decedent was not there. Dilworth then insisted on going to Galesburg, where they arrived on the morning of July 18. During this trip to Galesburg, the defendant repeatedly told the Johnsons that he would kill his wife if she did not return to Carbondale with him. Upon meeting his wife that morning and being told by her that she would not return to him, he threatened to kill her, and then wrote a note (People’s Exhibit 8) stating this was his intention. Because of these threats, defendant was taken into custody by the Galesburg police on July 19. On July 22 Dilworth was released from jail and returned to the Campbell residence where he again threatened to murder his wife. On July 23, defendant drove to Knoxville, Illinois, where he purchased a .32 caliber Iver Johnson revolver (People’s Exhibit 3) and á box of cartridges. The next evening, July 24, at about 8:30 p. m., defendant and his wife were sitting on the front porch of the Campbell residence. Jeanette Dilworth, their twelve-year-old daughter, testified that she was leaning on her father’s car, which was parked on the street in front of the Campbell residence. She stated that she observed her parents arguing, and heard Dilworth say, “Louise, come on and go back home with me.” Her mother replied, “Louis, I told you I was tired being treated like a dog.” Jeanette Dilworth stated that her father then started to arise, shot her mother, who was seated in a chair, and then shot himself. Virginia Dilworth, a fourteen-year-old daughter, testified that she also was in front of the Campbell residence near said car, when she heard a shot, and turning toward the porch, saw her mother crumple to the floor, and saw her father shoot himself.

Louis Dilworth testified on his own behalf, claiming that the shooting was an accident. He stated that he had given the gun and shells to his wife, but that when he returned to the Campbell porch she handed him the gun, warning him to be careful as she had loaded it. Dilworth said that he placed the gun in his left shoe and sat on the corner of the porch with his feet on the steps. The decedent then came up behind him, kissed him, and then reached over his shoulder for the gun. Defendant claims that his finger was “behind” the trigger, and that his wife then placed her finger “inside” the trigger and raised the gun. Dilworth stated that he then “snatched” his finger out, and the gun went off, the bullet entering his chest. He says that his wife started to back into a chair, and in so doing hit the arm of the chair, jarring the gun and causing it to fire, this bullet striking her. .

The trial of this cause commenced on December 9, 1968, with the selection of the jury. On December 11, 1963, the prosecution called its first witness, Margaret Haines, whose testimony was immediately objected to by defendant on the ground that her name was not listed as a witness on the indictment. It appears that only Jeanette Dilworth, Virginia Dilworth, Robert Campbell, Margaret Campbell, and William Allison, a police officer, were listed on the indictment. The State’s Attorney, when this objection was made, submitted to. the defendant’s counsel a list of all witnesses he intended to call to testify, with a suggestion that he would secure the additional witnesses for interview by defendant’s counsel if so desired. This seemed to satisfy the defendant’s attorney, and there was no further objection to the testimony of any of the witnesses not listed on the indictment, there was no claim of surprise, and no request for additional time for preparation of the defense. Ch 38, § 729, Ill Rev Stats (1961), in effect at the time of the trial of this cause, has been superseded by ch 38, § 114-9, Ill Rev Stats (1965), but the former section is substantially similar to the new provision. The former statutory provision has been construed to mean that it is within the sound discretion of the trial court to permit witnesses to testify whose names were not endorsed on the indictment, and that this discretion will not be reviewed unless it appears that the defendant was taken by surprise. People v. Weil, 243 Ill 208, 90 NE 731; People v. Steinhauer, 248 Ill 46, 93 NE 299.

The defendant next contends that People’s Exhibit 5, a bullet removed from the body of Mary Louise Dilworth, was not properly identified, and therefore this exhibit should not have been admitted in evidence. Dr. Jackson K. Erffmeyer, Coroner of Knox County, testified that this exhibit was similar to the only slug he removed from the body of Mrs. Dilworth on the night of July 24, 1963, and that he then took it to the Gales-burg Police Station, giving the slug to Detective Jesse Moss. Moss stated that he received People’s Exhibit 5 from Dr. Erffmeyer at approximately 11:00 p. m. on July 24, and thereafter gave it to Detective Sergeant William Allison. Allison stated that he received the exhibit from Moss on the morning of July 25, that he did not mark the slug as he was afraid such a mark might impair ballistics examination, and that he sent this slug in an identified or labeled box to the FBI laboratory. Defendant argues that because no identification mark was placed on this slug, and because the FBI personnel, receiving the slug in the labeled box, examining it, and then returning it to the box and mailing it back to the Galesburg police, did not testify, there was a failure of proper identification, and lack of proof of continuity of possession. This slug was unquestionably of .32 caliber, as were the two empty cartridges and three loaded cartridges (People’s Exhibit 4), which were removed from defendant’s .32 caliber Iver Johnson revolver (People’s Exhibit 3). We agree with the prosecution that it would not have been feasible for the coroner or Galesburg police officers to mark this slug as this might have made it impossible to perform a ballistics examination on the slug. The testimony of the coroner and Galesburg police officers regarding this exhibit, and the fact that this exhibit was part of a series of exhibits, i. e., the gun, and loaded and spent cartridges removed from the gun, was sufficient to allow People’s Exhibit 5 into evidence. People v. Fisher, 340 Ill 216, 236, 172 NE 743.

Deputy Sheriff Hugh Allison was called as a rebuttal witness by the People, and testified that he was present on August 15, 1963, in the hospital room occupied by defendant, and heard defendant say that he was intoxicated at the time of the shooting, and therefore had no memory of what occurred. On cross-examination it was brought out that Allison had been acting as bailiff in charge of the jury in this case, whereupon defendant moved for a mistrial. Further examination of Allison indicated that he had not discussed this case with any of the jurors at any time. The court then, on its own motion, substituted Sheriff Max Jones as bailiff in the place of Allison. Defendant argues that the mere use of a bailiff as a prosecution witness deprived him of a fair and. impartial trial.

A jury must be free from outside influences when it makes its decision. Conduct of a bailiff, or other officers of the court, may be so prejudicial so as to require a new trial, such as in the case of People v. Kawoleski, 313 Ill 257, 145 NE 203, where the bailiff stated, in the presence of the jury, that “it should not take more than two or three minutes to convict that bird.” In People v. Berry, 18 Ill2d 453, 165 NE2d 257, where the prosecutor, during recess, asked the jury, “How was the weekend?” and “Did it drag?”, the court, refusing to reverse the conviction, stated at page 459: “. . . While the conduct of the prosecutor in thus speaking to the jury cannot be condoned, it is clear that it does not constitute reversible error. In order to justify setting aside the verdict of a jury because of an unauthorized communication with them, it is necessary to show the defendant was prejudiced. Here there was no mention of the case or any part of it, nor has defendant suggested any other facts to show that prejudice resulted.” In the instant case there was no outside communication to the jury by the bailiff, and no evidence that prejudice resulted merely because the bailiff was called as a rebuttal witness. Also, the trial court immediately took the proper precautionary measure by replacing Allison as bailiff with Sheriff Jones, who did not testify in this case.

The key witness for the prosecution, who witnessed the shooting, was Jeanette Dilworth, the twelve-year-old daughter of the defendant and decedent. On direct examination, she testified with clarity and consistency about the occurrence. The defendant claims that he was deprived of a fair and impartial trial because of the court’s failure to inquire into her competency. The record indicates that there was no preliminary examination requested of or made by the court for the purpose of determining either her intelligence or her understanding of the meaning of testifying under oath. At the conclusion of direct examination, defendant moved to strike her testimony and for a mistrial,, which motion the court denied at that time. However, the court specifically indicated that it would .reconsider this motion if the defendant could establish, by cross-examination or otherwise, the incompetency of the witness. The defense, then commenced a long and rigorous cross-examination during which the witness again exhibited sufficient intelligence and capacity to properly testify. Also,. her testimony on cross-examination was clear and consistent with her testimony on direct examination. No further motion was made by defendant to exclude her testimony, nor was any evidence offered by defendant to establish that she was mentally incompetent, as claimed by. defendant. Because she- was a minor, it definitely would have been better practice for the trial court to have interrogated Jeanette Dilworth as to her competency to testify as a witness to the murder. However, the lengthy and rigorous direct and cross-examination of-this witness certainly supplied the trial court with enough information regarding her competency as a witness. Whether a child shall be permitted to testify rests largely in the discretion of the trial court. People v. Davis, 10 Ill2d 430, 140 NE2d 615; People v. Karpovich, 288 Ill 268, 123 NE 324. We find no abuse of discretion here. .

The defendant next makes several arguments regarding the instructions. First, he contends that the court erred in refusing Defendant’s Instruction No. 5, on the grounds that it was already covered by Court’s Instruction No. 2. The defendant had presented evidence tending to establish his good reputation in Carbondale as a peaceful and law abiding citizen. Both the Court’s Instruction No. 2 and Defendant’s Instruction No. 5, almost identical in language, informed the jury as to how they were to consider this type of evidence. The only difference in these two instructions was that the Court’s Instruction No. 2 directed the jury to consider this evidence, “with the other evidence in the case, in determining the question of defendant’s guilt or innocence,” whereas Defendant’s Instruction No. 5 directed the jury to consider this evidence, “with the other evidence in the case, in determining the question whether any witness who testified to facts tending to incriminate him has been mistaken or has testified falsely or truthfully.” (Emphasis added.) Defendant argues that the giving of Court’s Instruction No. 2 was error, as this instruction fails to cover credibility of the witnesses. Repetition of an instruction is to be avoided, and to merely restate a proposition of law in different language is a repetition. People v. White, 308 Ill 210, 139 NE 58. Further, the jury was fully instructed on the law regarding credibility of witnesses by the giving of People’s Instruction No. 11.

Defendant assigns as error the giving of People’s Instruction No. 10, defining the crime of murder; the giving of Court’s Instruction No. 1, outlining the proof required under each of the six counts of the indictment; and the refusal to give Defendant’s Instructions 12 through 17, each being a separate instruction regarding the proof required on each of the six counts of the indictment. The defendant also argues that it was error to refuse Defendant’s Instruction No. 4, as being covered by People’s Instruction No. 2. Both of these instructions informed the jury how they should weigh the testimony of the accused. The underlying reason for defendant’s claim of error regarding, these instructions is his insistence that he “is entitled to his own instructions covering his theory” of what the law is in the particular case. Clearly this argument is fallacious, as it is for the court to instruct the jury as tó the proper law to be applied by them to the case. The function of the trial attorney, whether for prosecution or defense, is to assist the court by tendering instructions. We have carefully reviewed all of the instructions tendered herein, whether given, refused, withdrawn, or modified, and are of the opinion that the court properly instructed the jury. “The court is not required to give a number of different instructions upon the same subject, and it is not error to refuse to give a requested instruction, notwithstanding, it states a correct principle applicable to the case, if it has already been covered properly and sufficiently by other instructions given. An accused, therefore, cannot complain, although the court does not give the instructions he prefers, where the instructions given cover the entire law of the case.” 15 ILP 191, Criminal Law, § 662.

Defendant’s last contention, that his guilt was not established beyond a reasonable doubt by sufficient credible evidence, is, we believe, unfounded. It is undisputed that the defendant often, both orally and. in writing, threatened to kill his wife. In furtherance of this design, Dilworth, by his own admission, purchased a revolver the day before the fatal shooting. The occurrence was witnessed by two of the defendant’s daughters, and only moments later, the defendant was disarmed by Robert Campbell, who resided on the premises where the incident occurred.

Accordingly, the judgment of the Circuit Court of Knox County is affirmed.

Affirmed.

ALLOY and STOUDER, JJ., concur.


text:
    Joseph P. Coney and Jack A. Coney, Plaintiffs, Counter-Defendants and Appellees, v. Rockford Life Insurance Company, an Illinois Corporation, Defendant, Counter-Plaintiff and Appellant.
    Gen. No. 65-48.
    Third District.
    February 8, 1966.

      Miller, Westervelt & Johnson, of Peoria (Donald G. Beste, of counsel), and Williams, McCarthy & Kinley, of Rockford (John C. McCarthy, of counsel), for appellant.
    Richard H. Radley, of Peoria, for appellees.
   CORYN, P. J.

Joseph P. Coney and Jack A. Coney, as plaintiffs, filed a complaint in the Circuit Court to recover the sum of $1,050 allegedly due for rent under a written lease executed October 22, 1960. After the cause was assigned to the Magistrate’s Division, the defendant-lessee, Rockford Life Insurance Company, filed an answer denying liability, and for a counterclaim, prayed a declaratory judgment (a) that under paragraphs 9 and 10 of the lease, the lessors are required to pay the costs of operating an air conditioner for the demised premises; (b) that defendant-lessees have paid the same over a certain period by mistake and inadvertence; (c) that defendant, as counterplaintiff, have judgment against plaintiff - counterdefendants in the amount of $1,987.58, which is the sum alleged to have been inadvertently paid; and (d) that it be ordered that plaintiffs are solely responsible for the expense of operating air conditioners for the future term of said lease, which does not expire until December 31,1970.

The answer to the counterclaim denied that payments made by defendant-lessee for operating the air conditioners were made by inadvertence, and asserted that such amounts were paid by mutual agreement under the express terms of the lease, and that defendant-lessee by having made said payments is estopped from now placing a different construction on the language of the lease.

After the case was at issue, plaintiff’s cause for accrued rents was settled, and it was stipulated that the case would proceed for hearing upon the defendant’s counterclaim. Thereafter, the cause was heard by the Magistrate, without a jury, and at the close of the evidence, judgment was entered in favor of the plaintiff scounterdefendants and against the defendant-counter-plaintiff. By this appeal, counterplaintiff complains that this judgment is contrary to the manifest weight of the evidence and to the law, and, alternatively, that other errors were made, including rulings on evidence, which require a remandment.

Paragraphs 9 and 10 of the lease in question provide as follows:

“9. Heating and Air Conditioning. Lessors shall provide heating and air conditioning facilities adequate to maintain at all times in all parts of said premises such a reasonable degree of heat and coolness as each season may require for comfortable occupancy. Cost of heating and air conditioning shall be the expense of Lessors.
“10. Utilities. Public utility service connections into said premises shall be provided by Lessors. Lessee shall pay charges for electricity. Lessors shall pay charges for the water.”

Contracts are said to be ambiguous where the words used by the parties are fairly susceptible of being understood in more than one sense. 12 ILP, Contracts, § 211. The issue of whether an ambiguity exists is a question of law. Bertlee Co., Inc. v. Illinois Pub. & Printing Co., 320 Ill App 490, 52 NE2d 47. In the case at bar, at the second sentence of paragraph 9 of the lease, the word “conditioning” can be taken as a substantive, or gerund, to describe a process, or it may be regarded as a participle or verbal-adjective, modifying an understood reference to the word “facilities” in the first sentence of said paragraph, which is the only other clearly expressed substantive in the entire paragraph. On the one hand, the words may mean that “The cost of conditioning the air [i. e., the process of cooling] shall be the expense of Lessors.” On the other hand, the words may easily be interpreted to mean that “The cost of air conditioning [facilities] shall be the expense of Lessors.” The word “air” is, of course, actually used as a modifier, and not as the object of a verbal form. Moreover, in terms of unexpressed references, some argument might be made that the sentence should read to the effect that “The cost of air-conditioning [operations] shall be the expense of Lessors.” Other meanings may be suggested by slight modifications in the arrangements of the words used, or by resort to other rules of grammar. It is plain in our judgment, therefore, that the meaning of the words used here is obscure, and that the contract is, therefore, ambiguous.

In construing contracts, to determine their intent, it is long established law that a construction should be adopted, if possible, which ascribes meaning to every clause, phrase and word used; which requires nothing to be rejected as meaningless, or surplusage; which avoids the necessity of supplying any word or phrase that is not expressed; and which harmonizes all the various parts so that no provision is deemed conflicting with, or repugnant to, or neutralizing of any other. Herlihy Mid-Continent Co. v. Sanitary Dist. of Chicago, 390 Ill 160, 60 NE2d 882; Poorman v. Julian, 22 Ill App2d 208, 160 NE2d 169; see 12 ILP, Contracts, § 215. Contracts are generally construed against the party who prepared them, for having chosen the words and grammar used, he is held responsible for the ambiguity. Cedar Park Cemetery Ass’n, Inc. v. Village of Calumet Park, 398 Ill 324, 75 NE2d 874. Where an ambiguity exists, competent extrinsic evidence is admissible to aid the court in reaching a proper interpretation. Martindell v. Lake Shore Nat. Bank, 15 Ill2d 272, 154 NE2d 683. Evidence showing the contemporaneous construction placed upon the contract by the parties themselves is entitled to great weight in finding the intention of the parties. Consolidated Trading Corp. v. Roth, 345 Ill App 151, 102 NE2d 551. Furthermore, where the evidence shows that one party to the contract understood the agreement in a particular sense, and the other party knew it to be so understood, the undertaking will be so defined if it is compatible with the language used. Hurd v. Illinois Bell Tel. Co., 136 F Supp 125, affd 234 F2d 942.

The evidence relating to the circumstances attending the execution of the lease is not in substantial conflict. Lessee admits having prepared the lease by means of making extensive modifications to a form submitted by Lessors, which form Lessors had used for another tenant. Paragraph 9 on the original form submitted by lessors made no provision for air conditioning, and related solely to a division of the obligation for heat. The first sentence on the original form required lessors to furnish adequate facilities, while the second sentence stated that “Cost of fuel shall be the expense of Lessee.” (Emphasis added.) Paragraph 9 of the present lease was made by lessee by adding a specific reference to air conditioning facilities in the first sentence and by striking the word “fuel” from the second sentence of the form to substitute the phrase “heating and air conditioning.” Also, the word “Lessee” was changed to “Lessor” in said second sentence.

At the time the lease was being prepared, the premises to be leased were under construction, and lessors had furnished lessee with a copy of the specifications. These plans showed but one electrical meter to measure power furnished to the premises. Electrical air conditioning equipment was installed by lessors, pursuant to their obvious understanding of the agreement, and lessee thereafter took possession of the premises in May, 1961, although it had been paying rent since March, 1961. The fact that lessee now makes a claim for costs of operating the air conditioner for forty-four months since March, 1961, indicates lessee’s recognition that the electrically powered air conditioner was installed, and apparently operating, when it took possession. Lessors appear to have made an engineering change in the facility when lessee complained of the air conditioner’s inadequacy. Since lessee claims a credit for operating the air conditioner every month since March, 1961, it is plain that for seven months, that is, until October, 1961, when an exchange of correspondence indicated a disagreement about the lease, lessee paid for all electricity used to operate the air conditioning units. In October, 1961, lessee indicated to lessors that it believed this cost to be that of lessors, and lessors responded that such costs, by their understanding, were to be borne by lessee. Thereafter, lessee continued to pay such costs until 1964, when it set off against rents due the sum of $1,987.50, which it alleged to be the amount due from lessors for electricity in operating the air conditioners. Although there was never more than one electrical meter to the premises, lessee offered as evidence some estimates to the effect that the average monthly cost of electricity furnished to the premises during the months in question for purposes other than cooling was $27.70, although the electrical bills for all of these forty-four months, except one, were substantially in excess of that amount.

In our judgment, the foregoing evidence, considering the applicable rules of construction, amply sustains the determination of the Magistrate. The lease form submitted by lessors to lessee was an indication to lessee of the lessor’s understanding as to a fair division of the responsibility for heating and cooling .the air. Lessor submitted plans for the buildings showing one electrical meter, and even before lessee took possession, an electrically powered unit was in place. In drafting the provisions of paragraphs 9 and 10, the burden was upon lessee to explain in unambiguous terms that it intended an arrangement different from that which was obviously the understanding of the lessors. Notwithstanding this known difference in understanding, lessee continued without objection, for many months, to pay the electrical costs of operating the cooling unit to the comfort and needs of its staff. There is no exception stated in paragraph 10, or in any other part of the lease, to the lessee’s obligation to pay for electricity, and words of exception should not be supplied by a court where that is not the unambiguous intent, and where to do so, would give rise to conflict. In the first sentence of paragraph 9, the term “air conditioning” was used as a modifier of the substantive “facilities.” We conclude that the Magistrate did not err in holding that the second sentence should be read to mean that the “Cost of air conditioning facilities shall be the expense of Lessors.”

We have considered the other issues raised by Lessee on this appeal, but in view of our foregoing determination, we conclude that no occasion is presented for review of these issues, except as to a ruling excluding counterplaintiff’s exhibit 7 from evidence. This exhibit is a letter to lessors from attorneys for lessee under date of November 1, 1961, explaining lessee’s understanding of the meaning of the lease, and contains the same information as set out in counterplaintiff’s exhibit 8, which was admitted to evidence, is cumulative and self-serving, and therefore was properly excluded from evidence.

There being no error in the record, the judgment of the Circuit Court is affirmed.

Affirmed.

ALLOY and STOUDER, JJ., concur.


text:
    Glenn W. Bieretz, et al., Plaintiffs-Appellants, v. The Village of Montgomery, Illinois, et al., Defendants-Appellees.
    Gen. No. 65-119.
    Second District.
    February 11, 1966.

      ' Goldsmith, Dyer & Thelin, of Aurora, for appellants.
    N. Vance McCay, R. Stanley Stiles, and Tyler & Peskind, all of Aurora, for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This is a Declaratory Judgment action transferred to this Court by the Illinois Supreme Court, challenging the validity of an amendatory zoning ordinance of the Village of Montgomery in Kane County.

Montgomery, a Village of about three thousand persons, is bi-sected by the Fox River and lies immediately south of the City of Aurora. In 1954 the Village adopted a zoning ordinance dividing the Village into five zoning classifications and providing that all territory annexed to the Village would be automatically classified in the residential district until changed by a subsequent ordinance.

Prior to the adoption of the ordinance here in controversy, funeral homes were not a permitted use in the residential district.

One Wayne Dieterle, the owner of certain residentially zoned premises in the Village, petitioned the corporate authorities of the Village of Montgomery to revise their zoning ordinance so as to permit funeral homes in the residential district. The board of trustees, on its own motion, referred this question to the zoning board of appeals of the Village and a public hearing was held. In strict compliance with current American folkways, the right of someone else to use his property immediately became an important public question. Petitions were circulated and 367 residents of the Village approved the proposal, whereas 203 residents found objection. More than one-sixth of the whole population of the Village became interested in the matter. The public hearing was attended by vast numbers. Suffice it is to say that the Village authorities concluded, as a result of their informal referendum, that the zoning ordinance of the Village should be amended to permit funeral homes in the residential district, and the amendatory ordinance here in question was adopted.

While the whole current system of petitions, quasi referendums, and the like seem repugnant to the constitutional rights of an individual to use and enjoy private property, we are mindful of the fact that local governmental authorities have the right to regulate the use of private property and that these regulations will only be disturbed if arbitrary, or if they have been imposed without proper attention to statutory requirements.

Upon the adoption of the amendatory ordinance this action was brought by 30 owners of nearby property. The trial court upheld the validity of the ordinance. This appeal followed raising three issues which are before us.

The first issue raised by the plaintiff is that the petition filed by Dieterle did not meet the requirements of the Village Zoning Ordinance. The Ordinance requires' that a petition be signed and acknowledged by the owners of the property. The petition was not acknowledged and was not signed by a Mrs. Dieterle, who was a joint owner with her husband. We note, however, that the Zoning Ordinance permits amendments to be initiated by the president and board of trustees of the Village on their own motion without any petition at all. It appears that after receipt of the request from Dieterle, the president and board of trustees of the Village referred the question to the Zoning Board of Appeals on its own motion. Therefore, no petition was necessary. The fact that the petition did not comply exactly with the ordinance is of no consequence.

The plaintiff’s next contention is that the notice of the public hearing was not in compliance with the Zoning Ordinance. Section 11-13-14 of chapter 24 of the Illinois Revised Statutes provides that no zoning amendments may be made without a hearing and that notice of the time and place of the hearing shall be given. The Village Zoning Ordinance provides that the notice shall indicate the changes or amendments proposed to be made in the regulations or in the district boundary lines, in addition, to indicating the time and place of hearing. While the corporate authorities of a municipality may not establish requirements inconsistent with the statute, it is clear that within the statutory limits the corporate authorities have the right to prescribe details as to hearings and the notice thereof. Cain v. Lyddon, 343 Ill 217, 175 NE 391 (1931); Treadway v. City of Rockford, 24 Ill 2d 488, 182 NE2d 219 (1962).

In this case the notice indicated the time and place of the public hearing and advised that the matter under consideration was the recommendation of Dieterle that a revision be made in the Zoning Ordinance of the Village concerning future zoning classification for funeral homes.

It must be pointed out that the request did not concern a reclassification of a particular piece of property, but rather an amendment to the regulations in the body of the Ordinance. The Village authorities never considered the rezoning of the Dieterle property to permit funeral homes. Instead, they considered a change in the regulations to permit funeral homes in any residential district. Therefore, it was not necessary that the notice describe a particular piece of property. The statute and Village Zoning Ordinance only required that the time and place of the hearing be indicated together with the nature of the proposed amendment. It appears that these requirements were met. We are not concerned with the reclassification of a particular piece of property and we, therefore, do not pass upon the validity of the notice herein involved, were it to apply to such a case.

The last contention raised by the plaintiff is that the action of the corporate authorities in adopting the amendatory ordinance was arbitrary and unreasonable. All are familiar with the proposition that a municipal ordinance is presumed valid and will not be upset absent a finding that the corporate authorities acted arbitrarily and unreasonably. Where there is a fair difference of opinion the legislative judgment must prevail. The matter of locating funeral homes is within the legislative discretion and presents a question to be determined by the corporate authorities and not by the court. Mahoney v. City of Chicago, 9 Ill2d 156, 137 NE2d 37 (1956); Johnson v. Village of Villa Park, 370 Ill 272, 18 NE2d 887 (1939).

Numerous witnesses testified on both sides. The plaintiff’s witnesses testified that there would be a depreciation in the value of surrounding property and that the use of the Dieterle premises would increase traffic congestion. The defendant’s witnesses denied that there would be any depreciation of values or increase in traffic. Again, we must have in mind that the amendment before the corporate authorities did not deal with the Dieterle property specifically, but rather with every residential district in the Village. The corporate authorities could reasonably have found that the establishment of funeral homes in residential districts was not detrimental. We cannot conclude that the corporate authorities acted arbitrarily. The most that can be said for the plaintiff’s position is that there is a fair difference of opinion and as has been stated, when a fair difference exists the Courts will not interfere with the legislative judgment. We note that the Village Zoning Ordinance prior to the amendment permitted residences, parks, municipal utilities, schools, hospitals and other uses in the residential zone. It is not unreasonable to add funeral homes into this classification. See, Johnson v. Village of Villa Park, supra.

In this connection the plaintiff contends that a funeral home constitutes a nuisance per se. The plaintiff cites Bauman v. Piser Undertakers Co., 34 Ill App2d 145, 180 NE2d 705 (1962). However, in the Bauman case, the court said at page 147,

“The operation and maintenance of a funeral home or undertaking establishment constitute a lawful business, and neither the business nor the establishment is a nuisance per se.”

The Court further said at page 149,

“The matter of locating funeral homes is within the legislative discretion, and the propriety of such action is a debatable question for determination by the City Council and not by the Courts.”

The court also noted at the same page, that,

“A funeral establishment is a lawful and indispensable business, and there must be some place in a city where it may be properly located.”

A funeral home may be a nuisance in fact under particular circumstances, but it is not and cannot be a nuisance per se. The record before us does not indicate anything at all from which we could conclude that a funeral home in this instance is a nuisance in fact. And, it must be remembered again that the amendatory ordinance in question did not deal with a particular funeral home or a particular piece of property, but rather with the granting of permission to establish funeral homes in all residential districts.

We conclude that the Village complied with the technical requirements of the statute and its own ordinance and that the corporate authorities did not abuse their discretion in adopting the amendatory ordinance. The trial court was correct in reaching this conclusion.

Judgment affirmed.

ABRAHAMSON, P. J. and DAVIS, J., concur.


author: CORYN, J.

text:
    Mary Alice Kelleher, Plaintiff-Appellant, v. Charles Kelleher, Defendant-Appellee.
    Gen. No. 65-44.
    Third District.
    February 15, 1966.

      Galowich & Galowich, of Joliet (Jerald S. Galowich, of counsel), for appellant.
    Murphy, Timm & Lennon, of Joliet (Arthur T. Lennon, of counsel), for appellee.
   CORYN, J.

On April 2, 1959, the Circuit Court of Will County granted the plaintiff, Mary Alice Kelleher, a divorce from the defendant, Charles Kelleher. The divorce decree provided, inter alia, that the plaintiff have the custody of the minor children born as issue to said parties, namely, Colleen Marie, then about four years of age; Catherine Alice, then about three years of age; and Kevin Charles Gerard, then about two years of age, and further provided that the defendant was to pay to the plaintiff the sum of $220 per month for support and alimony. This decree did not state what portion of said monthly payment was for alimony and what portion for child support. In February of 1965, the plaintiff filed a petition requesting an increase in child support and alimony, alleging that there had been a change in circumstances since the original divorce decree in that cost of living and the needs of the children had increased, and that subsequent to the original decree, it was discovered that Colleen Marie was a retarded child, thereby necessitating additional expense for special schooling and care, and that the defendant’s ability to pay had greatly increased.

A hearing was had on this petition to modify the divorce decree, at which time the plaintiff testified that she and her three children now reside in Buffalo, New York. Mrs. Kelleher stated that since the divorce she was compelled to go to work and that she is presently employed by the New York Telephone Company and has a take-home pay of approximately $69 per week. She lives with her mother and contributes $75 a month to her mother’s monthly mortgage payment. She also pays the food bills and other household expenses for this home, and in return her mother takes care of the children, thereby enabling her to work. The plaintiff testified that her monthly expenses were as follows: $75 for rent, in the form of a contribution to her mother’s monthly mortgage payment; $33 for heat; $13 for light; $140 for groceries; $45 for clothes; $10 for dentist; $25 for drugs; $15 for hospitalization insurance; $30 for medical expenses ; $85 for automobile payment; and $21 for tuition; this being an itemized total of $492 per month. Plaintiff further testified that her total monthly expenses were approximately $702, there being in addition to the itemized expenses, approximately $200 more per month in expenses for such items as laundry, dry cleaning, school expenses, maintenance for automobile and house, gasoline for automobile, and taxes. Mrs. Kelleher stated that she had to incur debt and seek financial assistance from her brother in order to support her family. Plaintiff further testified that it was not definitely known until after the divorce that Colleen was a retarded child, and that Colleen now requires special care, medication, and is attending the Cantalician School, which is a private school for mentally retarded children, - where she gets constant attention and psychiatric treatment. Also, since the original divorce decree, Catherine has incurred injuries to her knee caps which have resulted in some disability and additional medical bills.

The defendant testified that at the time of the divorce in 1959, his gross salary was between $8,200 and $9,200 per year. The defendant presently earns $17,600 per year, his gross pay per month being $1,583.83. From this amount there is deducted the sum of $158.95 for withholding tax, $52.11 for social security, $8.33 for insurance, $14.25 for disability insurance, $95 for contribution to savings plan, $5 to the United Fund, leaving a net take-home pay of $1,249.69 per month. The defendant has remarried and he and his second wife have two children. They live in a $32,000 house, which has a balance on its mortgage of approximately $23,800, and they own two automobiles. The defendant stated that his monthly expenses were as follows: $217 for mortgage; $25.67 for home improvement loan; $119.39 for additional loan; $96 for automobile loan; $26.55 for life insurance to cover home mortgage; $7.67 life insurance premium; $22.70 to G. E. Credit Corp.; $22 contribution to church; $5 to Maryknoll Fund; $30 for automobile insurance; $50 unreimbursed auto expense; $26 for heat and gas; $11 for lights; $13 for phone; $50 for laundry and dry cleaning; $25 for clothing; $45 for country club; $25 for dues to plant managers’ association; and $200 for unreimbursed business entertainment, which items total $1,016.98 per month. In addition, of course, the defendant was compelled to pay $220 per month to the plaintiff for alimony and support. Mr. Kelleher admits that it was not established at the time of divorce that Colleen was a retarded child.

At the conclusion of this hearing, the trial court entered an order directing the defendant to continue to pay to the plaintiff the sum of $220 per month for alimony and support, and to pay an additional $250 per year for tuition for the minor child, Colleen, at the special school for retarded children. It is from this order that the plaintiff appeals arguing that the Circuit Court abused its discretion by failing to increase the monthly alimony and support payments.

Section 19 of the Divorce Act (Ill Eev Stats, c 40) authorizes the court to modify those provisions of a divorce decree pertaining to support of children where changed conditions of the parties require it in reason and justice. The issue on a hearing for a petition to modify a divorce decree to require the former husband of petitioner to pay an increased amount for support of the children of the parties, is whether there have been material changes in the circumstances of the parties since the entry of the divorce decree. An increase in monthly support payments is warranted when the evidence establishes that the needs of the children have increased, and the means of the father have also increased so as to enable him to contribute additional sums to his children’s support. The burden of proof is on the petitioner to clearly establish the increased need and corresponding increased ability to pay. Patterson v. Patterson, 28 Ill App2d 76, 170 NE2d 11. The findings and order of the trial court, on matters of this nature, will not be reversed unless contrary to the manifest weight of the evidence.

Courts of review are reluctant to modify or change divorce decrees relating to support of children and unless the evidence clearly so requires, no such modification should be made upon review. We feel, however, that the situation which confronts us in this case establishes facts in the record which require such action by the court. We have carefully reviewed the evidence in this case, and are of the opinion that the increased need of the children was clearly established. At the time of the divorce all three children were of preschool age, and now they are all enrolled in school, thereby necessitating additional expenses. Also, there can be no doubt that the cost of living has risen since 1959. More important, however, is the fact that it was not ascertained until after the divorce decree that Colleen was a mentally retarded child in need of special care, treatment, and schooling. The evidence further established that the defendant, since the divorce from the petitioner, has prospered, his gross income per year having increased from $8,200 to $17,600. While it is true that the defendant’s living expenses have also increased, the fact that the defendant, by his own admission, saves $95 per month, spends $45 for country club, and an additional sum of $200 for entertainment, indicates his ability to pay additional sums for child support.

We conclude that the trial court erred in refusing, under the evidence in this record, to increase the monthly allowances for child support. While the discretion to determine such matters is initially vested in the Chancellor, his determination must be set aside on review where the record fails to show that the welfare and best interests of the children was the controlling consideration for the decree entered. The record here incorporates all the evidence of the parties on the issue presented, and no right of trial by jury is involved. In such a case, under the provisions of § 32.1 of ch 37, Ill Rev Stats, and § 92 of ch 110, Ill Rev Stats, this court may exercise such jurisdiction as is necessary to the complete determination of any cause on review. Accordingly, we find that the evidence shows that there is needed for the support of the minor children of the parties hereto the additional sum of $80 per month, as well as the additional sums decreed for tuition and medical expense, and that the defendant is well able to pay said additional sums therefor.

Accordingly, that portion of the order of the Circuit Court of Will County, dated March 5, 1965, dealing with support is hereby reversed. The Circuit Court of Will County is hereby directed to enter an order modifying the original divorce decree so as to provide that the defendant shall pay to the plaintiff, through the office of the Circuit Clerk of Will County, the sum of $300 per month for support and alimony; that the defendant shall pay the annual tuition of $250 for the special schooling required for Colleen; and that the defendant shall pay all extraordinary dental, hospital, and medical expenses incurred on behalf of the three minor children of the parties, provided, that the plaintiff seasonably notify the defendant of such expenditures, and otherwise cooperate with the defendant in processing claims for such expenses with the defendant’s insurance carriers.

Reversed in part and remanded with directions.

ALLOY and STOUDER, JJ., concur.