author: Mr. JUSTICE GEORGE J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Paul Latham, Defendant-Appellant.
    (No. 72-22;
    Fifth District —
    July 13, 1973.
    Robert E. Farrell, of Defender Project, of Mt. Vernon, (Richard Cunningham, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendant appeals from his conviction of the crime of aggravated battery. He contends that the indictment is invalid, plus other issues which we need not decide because of our resolution of the indictment issue.

The indictment reads in pertinent part as follows:

“William P. Latham committed the offense of aggravated battery in that he committed a battery upon Richard Stone by striking him with his fists, knowing the individual harmed 9 9 9 to
be a police officer * 9 9 in the execution of his official duties # # # »

The statutory definition of aggravated assault must be read together with that of assault. (People v. Whelan, 132 Ill.App.2d 2, 267 N.E.2d 364.) Likewise, the statutory definition of aggravated battery must be read together with that of battery. The Illinois Revised Statutes necessary to our decision in this appeal are set out in chapter 38, in pertinent part below:

“12 — 3. Battery.
(a) A person commits battery if he intentionally or knowingly
without legal justification and by any means,
(1) causes bodily harm to an individual, or
(2) makes physical contact of an insulting or provoking nature with an individual.
12 — 4. Aggravated Battery.
# # #
(b) A person who, in committing a battery * 9 9
(6) knows the individual harmed to be a peace officer * * * in the execution of his official duties.”

In order to allege aggravated battery, an indictment must first allege battery. In this case, the only portion of the indictment dealing with battery alleges only that the defendant “9 9 9 committed a battery upon Richard Stone by striking him with his fists * * *.” The indictment fails to allege that this conduct was performed “intentionally or knowingly,” or that the physical contact caused “bodily harm” or that it was “of an insulting or provoking nature,” all of which are elements of the offense as defined by section 12 — 3(a). Thus the language used permits the possibility that the defendant did not act “intentionally or knowingly”, or that the physical contact was insufficient to constitute battery. Where the conduct alleged in an indictment may in itself be wholly innocent, it is essential that the unlawfulness of the conduct be averred either by express allegation or by the use of terms, or the statement of facts, which clearly imply such unlawfulness. (41 Am.Jur.2d, “Indictments and Informations”, pars. Ill and 113. See also People v. Stewart, 3 Ill.App.3d 699, 279 N.E.2d 53.) If the facts aHeged may all be true and yet constitute no offense, the indictment is insufficient. (People v. Barnes, 314 Ill. 140, 145 N.E. 391.) In the absence of an accusation charging defendant with a violation of the criminal law, the indictment is void on its face, the trial court has no jurisdiction or authority to convict, and the defendant cannot by waiver or consent confer such jurisdiction or authority. People v. Fore, 384 Ill. 455, 51 N.E.2d 548; People v. Minto, 318 Ill. 293, 149 N.E. 241.

Under these principles the resolution of this appeal becomes apparent. A requisite element of the offense of battery is that the conduct be performed “intentionaUy or knowingly.” This indictment alleged no mental state and therefore failed to charge an offense. * * [T]he body of an indictment must specifically state the essential elements of the crime with which a criminal defendant is charged [citation], and where intent is made a part of the offense, it should be alleged in the indictment and proved on the trial.” (People v. Smith, 57 Ill. App.2d 74 at 80, 206 N.E.2d 463 at 456.) The indictment in this appeal is invalid for failure to allege intentional or knowing conduct.

Furthermore, this indictment does not allege the physical contact elements of battery. In People v. Abrams, 48 Ill.2d 446, 271 N.E.2d 37, our supreme court considered a complaint which charged that the defendant had committed battery in that she “knowingly and intentionally and without legal justification made physical contact with complainant herein without the consent of said complainant.” Although there “intentionaUy and knowingly” was alleged, the court said:

“The complaints here did not charge either that the physical contact was of an insulting or provoking nature or caused bodily harm, the alternative elements of the offense. Thus, the complaints for battery were also fatally defective and the judgments of conviction thereunder must be reversed.”

(48 Ill.2d at 460-461.) Like the complaint in Abrams, the indictment in this appeal faffed to allege that either bodily harm or that physical contact of an insulting or provoking nature resulted from the physical contact. Under the Abrams standard, this indictment is fatally defective.

For the foregoing reasons we reverse the judgment of conviction for aggravated battery.

Judgment reversed.

EBERSPACHER, P. J., and CREBS, J„ concur.

       Ill. Rev. Stat., ch. 38, sec. 4 — 3 requires that all offenses (other than absolute liability offenses) be committed with one of the mental states set forth in Sections 4 — 4 through 4 — 7. These mental states are “intent”, “knowledge”, “recklessness”, and “negligence”. Section 12 — 3(a), supra, requires that to commit a battery the act must be done “intentionally” or “knowingly”.


source: Caselaw Access Project

license: Public Domain

text:
    Marie Manley, Plaintiff-Appellee, v. Tri-City Grocery Company, Defendant-Appellant—(Jax Asphalt Company, Inc., Defendant-Appellee. )
    (No. 72-230;
    Fifth District —
    July 13, 1973.
    Robert W. Wilson, of Burroughs, Simpson & Wilson, of Edwardsville, for appellant.
    John E. Jacobsen and Terry R. Black, both of Mount Vernon, for appellee Jax Asphalt Company.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

The plaintiff, Marie Manley filed a two-count complaint against the defendants based on an alleged injury which occurred when she tripped over a “bumper strip” located in the Tri-City Grovery parking lot.

Count I was directed against both defendants, alleging that they were, negligent in placing an asphalt bumper strip in the parking lot, negligently failing to warn the plaintiff of the bumper strip, causing the bumper strip to be constructed at a greater height than was reasonable and proper, and other acts and omissions.

Count II was also directed against both defendants, alleging wilful and wanton indifference in causing the bumper strips to be constructed, in failing to give warning of its location, and other acts and omissions.

Tri-City filed an answer to the original complaint, and, at the same time, filed a counterclaim against the defendant Jax Asphalt, alleging that Jax installed, designed and constructed the bumper strip over which the plaintiff fell; that if it is held liable to the original plaintiff, it will only be by virtue of its ownership and not due to any active neghgence on its part; that any liability on its part would be the result of the active neghgence of Jax’s in the installation, design and construction of the controversial bumper strip.

Jax filed a motion to dismiss the counterclaim which reads in pertinent part as follows:

“3. The Crossclaim and exhibits attached show that Tri City Grocery Company accepted the work and materials furnished in connection with the construction of said asphalt bumper strip and paid for said work in December of 1968.
4. If the plaintiff recovers a verdict and judgment against Tri City Grocery Company under its Complaint such verdict and judgment will be based upon the neghgence or willful and wanton misconduct of Tri City Grocery Company as alleged in the Complaint which charges of fault include the installation of the asphalt bumper strip and failure to warn plaintiff of the location and presence of the strip; the legal effect of any such verdict or judgment in favor of the plaintiff and against Tri City Grocery Company would be that Tri City Grocery Company was actively at fault and under such circumstance there could be no recovery by it against Jax Asphalt Company for indemnification.”

The trial court dismissed the crossclaim with prejudice and held that there was “no just reason for delaying an appeal from the order.” The defendant-counterplaintiff, Tri-City appeals.

We reverse. Mierzejwski v. Stronczek, 100 Ill.App.2d 68, 241 N.E.2d 573; Broncata v. Timbercrest Estates, Inc., 100 Ill.App.2d 49, 241 N.E.2d 569; McDonald v. Frontier Lanes, Inc., 1 Ill.App.3d 345, 272 N.E.2d 369.

For the above reasons this case is remanded with directions that the third party defendant be compelled to answer.

Reversed and remanded with directions.

EBERSPACHER, P. J., and CREBS, J., concur.


author: Mr. JUSTICE G. MORAN..

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Lee Davis, Defendant-Appellant.
    (No. 72-145;
    Fifth District —
    July 16, 1973.
    Robert E. Farrell, of Defender Project, of Mt. Vernon, (Richard E. Cunningham and Jay M. Shapiro, of counsel,) for appellant.
    No brief filed for the People.
   Opinion by

Mr. JUSTICE G. MORAN..


author: Mr. PRESIDING JUSTICE GUILD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard E. Aniballi, Jr., Defendant-Appellant.
    (No. 72-187;
    Second District —
    August 7, 1973.
    Brittain, Ketcham, Strass & Terlizzi, of Elgin, for appellant.
    William J. Cowlin, State’s Attorney, of Woodstock, for the People.
   Opinion by

Mr. PRESIDING JUSTICE GUILD.


author: Mr. JUSTICE SEIDENFELD.

text:
    Mavis M. Coleman, f/k/a Mavis M. Brown, Plaintiff-Appellant, v. Wayne O. Brown, Defendant-Appellee.
    (No. 72-210;
    Second District —
    August 7, 1973.
    Pedderson, Menzimer, Conde, Stoner, Ferolie & Spelman, of Rockford, for appellant.
    Yalden & Ridings, of Rockford, for appellee.
   Opinion by

Mr. JUSTICE SEIDENFELD.


author: Mr. PRESIDING JUSTICE GUILD

text:
    Tom Edwards Chevrolet, Inc., Plaintiff-Appellee, v. Air-Cel, Inc., Defendant-Appellant.
    (No. 72-71;
    Second District —
    August 8, 1973.

      Frederick M. Tyson, of Hinsdale, for appellant.
    Marvin C. Facktor, of Du Page County Bar Association, amicus curiae.

   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

Plaintiff filed a small claim complaint in Du Page County circuit court for $119.43 for repair work performed by the plaintiff. Defendant corporation, by F. M. Tyson, filed a jury demand and a motion to allow representation of defendant by “Frederick M. Tyson, its president and minority stockholder,” who is not licensed to practice law. The trial court denied the motion and after striking the jury demand entered judgment against defendant for $119.43 and costs. Defendant appeals. Its notice of appeal is signed by Mr. Tyson and its brief in this court is signed “Air-Cel, Inc., Frederick M. Tyson, President.” The Du Page County Bar Association joins as amicus curiae in plaintiff’s brief in this court.

Under Illinois law no person shall be permitted to practice law in this state without a license from the Illinois Supreme Court (Ill. Rev. Stat. 1969, ch. 13, par. 1). Mr. Tyson had no such license. When one appears in court representing one of the parties, counsels and advises with such party and drafts pleadings, both in the trial court and in this court, and assumes the general control of the action, he is practicing law. People ex rel. Chicago Bar Association v. Tinkoff (1948), 399 Ill. 282, 288, 77 N.E.2d 693, cert, denied 334 U.S. 833, 92 L.Ed 1760, reh. denied 334 U.S. 862, 92 L.Ed 1782.

“That the States have broad power to regulate the practice of law is of course, beyond question.” (United Mine Workers of America v. Illinois State Bar Association (1967), 389 U.S. 217, 222, 88 Sup.Ct. 353, 19 L.Ed.2d 426.) And “the equal protection clause of the U.S. Constitution does not mean that a State may not draw lines that treat one class of individuals or entities different from the other.” Lehnhausen v. Lakeshore Auto Parts Co. (1973), (U.S.) 35 L.Ed. 351, 355, reversing and remanding Lakeshore Auto Parts Co. v. Korzen (1971) 49 Ill.2d 137, 273 N.E.2d 592.

The permission granted by statute (Ill. Rev. Stat. 1969, ch. 13, par. 11) to prosecute and defend actions “in their proper persons” has never been, nor could it be, construed to include corporations, even in a small claims case. We agree with the statement of the court in citing 7 Am. Jur.2d Attorneys at Law, par. 6, in Remole Soil Service, Inc. v. Benson (1966), 68 Ill.App.2d 234, 238, 215 N.E.2d 678, 681:

“* * * We conclude, therefore, that a party to an action may appear in his own proper person or by attorney, unless the party is a corporation, in which case it may appear only by attorney.’ ”

See also Nixon, Ellison & Co. v. S. W. Insurance Co. (1868), 47 Ill. 444, 446, Nispel v. Western U. R. Co. (1872), 64 Ill. 311; 19 A.L.R.3d 1073, et seq.

The judgment of the trial court is affirmed.

Affirmed.

SEIDENFELD and T. MORAN, JJ., concur.


author: Mr. JUSTICE DIXON

text:
    Milford Pohren, Plaintiff-Appellee, v. Marie Pohren et al., Defendants-Appellants.
    (No. 72-326;
    Third District —
    August 2, 1973.

      Winstein, Kavensky & Wallace, of Rock Island, (Dorothea O’Dean, of counsel,) for appellants.
    Westphal & Benckendorf, of Peoria, (R. J. Westphal, of counsel,) for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The plaintiff, Milford Pohren filed a complaint for divorce against the defendant, Marie Pohren, on the grounds of desertion. The complaint also charged that she and the other named defendants refused to transfer certain real property back to plaintiff on his request After a trial, the Circuit Court of Peoria County entered a judgment granting plaintiff a divorce and, in effect, restoring his property to him. Defendants appeal.

Plaintiff and defendant Marie were married on February 11, 1946, and lived together in Princeton, Illinois, from 1962 until the separation in 1970. Since about July 1968 plaintiff came to Princeton only about once a week on weekends. The rest of the time he was on the road between St. Louis, Chicago or Peoria; and his base of operation in conducting his railway salvage business was Peoria where he maintained a sleeping room. He regarded the Princeton dwelling as his home. He had just got through paneling the basement on weekends and within one year of the August 1970 date had spent a large sum on remodeling and landscaping. In January 1970 the wife objected to plaintiff’s coming home at all. For months thereafter, he obtained entrance to his home by prying open a window in the basement. On August 4, 1970, the wife called the police and told them plaintiff was breaking into her home. She told plaintiff to get off the premises or she would have him arrested. She had told him to “get going” on many occasions and had also told him she was going “to kick him out” after their daughter got married. She testified, “I am taking the position at that time (August 4) that Mr. Pohren hadn’t any right in the house. * * * It is a fact I told him I didn’t want to see him on the premises any more. * * * [A]nd in the presence of all the parties there I told him he wasn’t going to get back on the premises any more. As far as I was concerned in that particular episode, I was having nothing further to do with him. 6 * * We have lived separate and apart since August 1970”.

The wife contended throughout, that she had ample justification for her conduct in that plaintiff had commenced his erratic living pattern about seven years before; that she could not recall when they last lived together as husband and wife; that she was upset by telephone calls and mail that he received from women. All misconduct was denied by the husband.

A spouse is entitled to a divorce on the ground of desertion against the other who wilfully, maliciously, and without reasonable cause locks the other out of the home. (24 Am.Jur.2d, Divorce, sec. 115. Annot, 19 A.L.R.2d 1462, sec. 15. See 1967 U.Ill. L. F. 165; U.Ill. L. F. 183; Weinberg, Illinois Divorce (2d ed.), sec. 198; 1 Illinois Law, Divorce, sec. 13-14.) The reasonable cause must be such conduct as would itself entitle the other party to a divorce, Mathews v. Mathews, 227 Ill.App. 465, 469 where the court said, “If one spouse leaves home because of * * * orders to go and not return, the one who leaves is not a deserter and has nothing to justify but must prove his or her reasons for going. The other party is the deserter and to justify his or her course in sending the other away must prove a cause for divorce.” (Emphasis supplied.)

The leading cases (Van Dolman v. Van Dolman, 378 Ill. 98; Karman v. Karman, 24 Ill.App.2d 123; Moyer v. Moyer, 17 Ill.App.2d 404; Jeffers v. Jeffers, 9 Ill.App.2d 572) clearly indicate that Illinois is liberalizing its interpretation of constructive desertion, of Gillespie v. Gillespie, 70 Ill. App.2d 38.

That a non-leaving party might be guilty of constructive desertion has long been recognized by Illinois courts. (Mathews v. Mathews, supra.) However, most decisions did apply what is known as the conservative approach to constructive desertion holding that the complainant “to justify his separation from the defendant and give rise to a ground of divorce against her for desertion e # must have been subjected to conduct by her which, in and of itself, would have been a cause for divorce”. (Godfrey v. Godfrey, 284 Ill.App. 297; Bramson v. Bramson, 4 Ill.App.2d 249; Coolidge v. Coolidge, 4 Ill.App.2d 205; Silverstein v. Silverstein, 178 Ill.App. 145.) Most cases were decided before mental cruelty was added as a ground in 1967. If a party had grounds for divorce when leaving why then bother with constructive desertion?

Van Dolman v. Van Dolman, supra, opened the door to the new approach followed in Moyer v. Moyer, supra, where the wife had been awarded a separate maintenance decree when she did not have grounds for divorce. After a year passed she brought suit on the grounds of desertion and was granted the relief requested. The rationale was further extended in Karman v. Karman, supra, where the court eliminated the requirement of a separate maintenance decree and simply awarded a divorce to the departing spouse without an independent ground of divorce, stating that, “she became the deserter when she ordered him to leave”. In Jeffers v. Jeffers, supra, plaintiff left his wife after continued orders to leave, together with a threat to call the sheriff. He was given the divorce. In Gillespie v. Gillespie supra, the court cited Mathews and Karman with approval and held that she became the deserter. Also, see Suavely v. Suavely, 349 Ill.App. 369.

Defendant wife contends that the judgment for divorce should be set aside as being contrary to the manifest weight of the evidence. In Chambers v. Chambers, 107 Ill.App.2d 456, the court said:

“the law on the subject of what does or does not constitute the manifest weight of the evidence has been reiterated so many times it seems useless to repeat it here. Nevertheless, the rule is, that where the evidence is in conflict, as in the present case, the court’s findings will not be disturbed unless it is so manifestly against the weight of the evidence that it cannot stand, the reason being that the judge has observed the witnesses and heard them testify.”

In the instant case the intention of the wife to abandon the marriage relationship (but not the marriage as she testified that she did not believe in divorce) remained fixed and firm even during the trial. The evidence was more than ample to support the finding of the trial court that the defendant wife was guilty of wilful desertion for over a year without reasonable cause.

At the time of the trial the plaintiff had had a series of heart attacks, his sole income was Social Security of $148.00 per month and Medicare (she received $64.50 per month from Social Security). He was no longer able to work and had given up his business. Both husband and wife are in their sixties. During most of the years of the marriage plaintiff had been in business, first as a feed and grain dealer and later in the salvage of canned goods from wrecked railway cars. He had been advised to and did keep title to real estate in the name of trusted friend, a sister of the defendant wife, who later transferred title to the three defendants herein. Record title to a small farm of 30 acres ended in Dolores Mc-Meen, a daughter of the wife by a previous marriage. Dolores admitted she had no interest in the property and would return it if the parties were together. Mary Ann Taylor, a daughter of the marriage, agreed that she had no interest in any of the property. The trial court found that the daughters had no equitable interest in any of the property, they have not contended otherwise on this appeal and we agree with the trial court.

The assets of the husband and wife brought before the court then are the home in Princeton, Illinois, worth $25,000 minus an $8,000 mortgage; the farm worth $12,500; an interest in some Iowa land sold on a contract now worth $3,000; $1,000 in stocks; $2,000 in bonds (or $3,000?); $2,000 in a savings and loan; a life insurance policy which may be worth $3,000; furniture and two cars. There was a judgment against plaintiff in amount of $2815, for a business indebtedness. The Iowa land contract was ordered to be applied to pay off the judgment and the balance, if any, to be divided equally between the parties. The trial court awarded the wife the stocks, bonds, savings, household furniture and her car; the husband was given office furniture, his car and the life insurance policy. The home and the 30 acre farm were ordered to be sold and the proceeds divided equally between the spouses.

The wife contends that she should have been awarded all the property in lieu of alimony and has cited; Savich v. Savich, 12 Ill.2d 454, (in that case the wife was granted the divorce); Fox v. Fox, 9 Ill.2d 509 (the husband had enormous wealth and further, had agreed in his complaint to pay for her care and support); Varap v. Varap, 76 Ill.App.2d 402 (wife given the divorce); and Dmitroca v. Dmitroca, 79 Ill.App.2d 220 (wife given divorce).

Our Statute (Ill. Rev. Stat. 1971, ch. 40, par. 19) provides that when a divorce is decreed, the court may make such order touching the alimony and maintenance of wife or husband as from the circumstances of the parties and the nature of the case shall be fit, reasonable and just. The Statute does not refer to, and does not make an award dependent on the question of fault; and the court is thereby empowered to award alimony to a wife against whom a divorce is granted. Reavis v. Reavis, 2 Ill. 242; Deenis v. Deenis, 79 Ill. 74; Spitler v. Spitler, 108 Ill. 120, (award reversed by Supreme Court); Rybakowicz v. Rybakowicz, 290 Ill. 550 (alimony not given); Boylan v. Boylan, 349 Ill. 471 (husband had voluntarily agreed to pay); Adler v. Adler, 373 Ill. 361 (contract of the parties). This does not mean that she has a right to it in every case, or that it should be granted as a matter of course. The trial court has a discretion in the matter, the exercise of which depends upon all the facts of the particular case. (Spitler v. Spitler, supra.) The discretion is a judicial one, not to be exercised arbitrarily. As a general rule when a divorce is granted to a husband because of the fault or misconduct of the wife, she is not entitled to, nor will she be awarded permanent alimony unless the circumstances and the equities of the case justify it. (Fox v. Fox, supra; Hoffmann v. Hoffmann, 40 Ill.2d 344.) The objective, in the exercise of such right is to prevent the imposition of an unjustifiable hardship in a given case that would ensue if the general rule were applied. Adler v. Adler, supra.

We are concerned with the factors which should be considered in determining whether to grant or deny alimony; and the circumstances of particular cases as requiring of a court to grant or deny alimony to the wife where the husband obtains the divorce. It has been said that from the very nature of the problem no fixed rules or formulae can be substituted for a careful study of the facts and circumstances of each case. 34 A.L.R2d 334, sec. 8.

Aside from the factors that affect an award to a wife who is innocent, such as her needs and the husband’s ability to meet them, the age, health and physical condition of the parties (Deenis v. Deenis) there are a few factors which are of particular importance in determining whether to award alimony to a guilty wife. For example, the court may consider the nature of the wife’s misconduct, the fact that the husband was somewhat at fault or contributed to the causes resulting in the separation of the parties * * * the length of time that the parties lived together; children etc.; the interest of society in preventing a woman from becoming a public charge; the fact that the woman married the husband for the purpose of obtaining some of his money, and most important of all the extent to which the wife has contributed in money and labor toward the enhancement and preservation of the husband’s estate (or even managing the household on a budget that did not consume all the husband’s earnings or estate) Deenis v. Deenis, supra.

We cannot agree that the wife in the instant case should be entitled to all the property. However, it is undisputed that the wife worked throughout this marriage, first in Chicago for three years when the husband did hardly anything at all, then as bookkeeper for the grain and feed business in Wyanet, Illinois, and lastly in operating a store in Princeton, Illinois, where she sold canned goods from the salvage business until the separation. It is further undisputed that prior to the marriage the wife, from the proceeds of a Workmen’s Compensation settlement on the death of her first husband, owned a 2 apartment dwelling in Chicago which was conveyed May 20, 1954, for $20,000 netting $18,000 to her; (A mortgage of $4,000 was paid off during the marriage by rent from an upstairs apartment); that she owned a vacant lot in Elmhurst, later sold for $1,000 and she also held stock of the value of $1,000 which she still retained. At the time of the marriage the husband brought to the marriage only $600, and this was disputed, plus an old Buick car. During the marriage the husband inherited the Iowa property which has been sold on contract and which was worth no more than $5,000.

After the sale of the Chicago home the wife retained $10,000 and put the other $8,000 into the husband’s feed and grain business. The down payment on the Princeton home was made with proceeds of the sale of the feed and grain business. Of the $10,000 retained, she gave $500 to each of her grandchildren, used about $5,000 for 2 major illnesses (certainly a family expense), paid about $2500 as attorney’s fees in the case of McKeen v. Whipple, 23 Ill.2d 352 and still had $2,000 or $3,000 in government bonds plus the account in the Eureka Building & Loan. Did she have $2,000 or $3,000 in bonds? The record is not clear.

There was a $5,000 insurance policy awarded the husband, which policy may be worth $3,000 present cash value. Again, the record is not clear on this point but in response to an interrogatory pertaining to value the plaintiff replied, “Plaintiff has $3,000 insurance policy”. What is the present cash value? It should be considered as one of the assets of the parties. Busby v. Busby, 11 Ill.App.3d 426 296 N.E.2d 585.

It should be obvious that the wife’s “special equities” were far in excess of those of the husband and that she should have more than an even division of the home and the farm in addition to her separate property. Consequently, the division made by the trial court constituted an abuse of discretion which warrants reversal on the question of division of the property and the cause must be remanded to the trial court for further hearing on that issue alone.

Affirmed in part, reversed and remanded in part.

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


author: Mr. PRESIDING JUSTICE STOUDER

text:
    Country Mutual Insurance Company, Plaintiff-Appellant, v. Gary W. Bowe and Charles Wilkerson, Individually and as Admr. of the Estate of Alan D. Wilkerson, Deceased, Defendants-Appellees.
    (No. 72-330;
    Third District —
    August 2, 1973.

      James E. Bowles, of Peoria, for appellant.
    Charles R. Thomas, of Pekin, and Jack C. Vieley, of Peoria for appellees.
   Mr. PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This declaratory judgment action was commenced in the Circuit Court of Tazewell County by Plaintiff-Appellant, Country Mutual Insurance Company, against Defendants-Appellees, Gary Bowe and Charles Wilkerson, Individually and as Administrator of the Estate of Alan Wilkerson, Deceased. Plaintiff sought a declaration that defendant, Gary Bowe, was not insured under an automobile liability insurance policy issued by plaintiff to Violet Lape. The trial court, sitting without a jury, entered judgment for defendants denying the declaratory relief sought by plaintiff. This is an appeal from that judgment.

In 1969, Mrs. Violet Lape, who lived in Mackinaw, Illinois, purchased a 1964 Ford titled in Mrs. Lape’s name and insured under a policy issued by plaintiff, Country Mutual Insurance Company, wherein Mrs. Lape was the named insured. The car was to be used by her son, Stanley Lape while he attended Lakeland College in Mattoon, Illinois. Mrs. Lape had her own automobile and did not drive the 1964 Ford unless her car was being repaired. Stanley had the only two sets of keys in his possession. Mrs. Lape had on many occasions told her son not to loan the car to anyone. In the fall of 1969, while attending college, Stanley became acquainted with Gary Bowe and would often allow Bowe the use of the car but only with prior permission. Beginning in the fall of 1970, Stanley shared living quarters with Bowe and two others and he continued to loan the car to Bowe. Stanley testified Bowe used the car on one occasion without his permission but after the car was returned Stanley told him in the future to ask him before using it. Bowe testified he always asked permission except on three or four occasions both in the fall of 1970 and in the spring of 1971 when he needed transportation to an early morning class and Stanley was still sleeping. He then stated at all other times he asked permission.

On Friday, April 9, 1971, Stanley went home for the weekend leaving the car at school. The following day, Gary Bowe, without asking permission or notifying either Stanley or Mrs. Lape, drove the car to his home in Washington, Illinois, about 130 miles from Mattoon. He had taken the extra set of keys kept in Stanley’s shaving kit, which he had never used before. While driving the car in Washington for his own pleasure during the evening of Saturday, April 10, 1971, he was involved in a collision with a motorcycle driven by Alan Wilkerson.

It is plaintiff’s contention that Bowe had neither express nor implied permission from Mrs. Lape nor from Stanley Lape to drive the car to Washington, Illinois, on April 10, 1971, and therefore, there was no coverage afforded by the terms of the insurance policy. The omnibus clause of the policy defines “persons insured” as follows:

“(1) with respect to a Vehicle,
(a) The Named Insured and any resident of his household;
(b) any other person while using such vehicle with the permission of the Named Insured or an adult member of his family, provided his actual operation or (if he is not operating) his actual use thereof is within the scope of such permission; * *

In order to establish that a user of an automobile is an additional insured under the omnibus clause of an automobile liability insurance policy, it must be shown that the car was driven with express or implied permission of one authorized to give such permission. (See, Orrill v. Garrett, 100 Ill.App.2d 194, 241 N.E.2d 1.) Although it is agreed by both parties that no express permission was obtained from Mrs. Lape or her son, defendants maintain permission is implied from the conduct of Stanley Lape and Bowe, and Stanley had authority to grant others permission to drive the car under the “subsequent permittee” rule set forth in Hays v. Country Mutual Insurance Co., 28 Ill.2d 601, 192 N.E.2d 855, since he had general custody and control of the automobile at all times. The rules regarding a “subsequent permittee” are not applicable if the driver in question was in no way granted permission from the “original permittee”. Therefore, the initial question in this case is whether Bowe had implied permission from Stanley to use the automobile.

Implied permission may be inferred from a course of conduct or relationship between the parties in which there is a mutual acquiescence or lack of objection under circumstances signifying permission. (Orrill v. Garrett, 100 Ill.App.2d 194, 241 N.E.2d 1.) The finding of the trial court is that permission is inferred from “a course of conduct of both mutual acquiescence and lack of objection”. According to Bowe, although generally he requested permission, there were occasions when he used the car without asking and he told Stanley upon returning the car but Stanley had not said anything. Never was Bowe told not to use the car anymore. This testimony is in conflict with that of Stanley where he states he was only aware of one occasion when Bowe took the car without permission and he again reminded him to always obtain permission. Also, Bowe previously drove the car out of town on social occasions to Charleston, about 15 miles from Mattoon. Stanley admitted there were no restrictions as to where Bowe could drive as long as he had permission. The boys lived together in the same house and Stanley never concealed the keys. Often they were left on the table and the extra keys were kept in Stanley’s shaving kit.

There is evidence from which it can be inferred that Bowe did not believe his taking the car on April 10 was wrongful. When Bowe had arrived in Washington, he tried a couple of times to call Stanley Lape to tell him that he had the car. We believe from the facts presented, there was sufficient evidence for the finding of implied permission by the trial judge. A finding on the question of permission wül not be disturbed unless clearly erroneous. Fireman’s Fund Indemnity v. Freeport Insurance Co., 30 Ill.App.2d 69, 173 N.E.2d 543.

Having determined Bowe’s use of the car was with the permission of Stanley, we must next determine whether Stanley as an initial permittee had authority to grant permission to others for the purpose of coverage under the insurance policy. Since Stanley was not an adult member of the family, only his mother, Mrs. Lape, the named insured, could grant permission under tire terms of the policy. In cases where there is no express permission granted by the named insured to the second permittee, as in this case, an authorization can be implied whereby the named insured is deemed to have delegated his power to grant permission to the first permittee. In Hays v. Country Mutual Insurance Co., 28 Ill.2d 691, 192 N.E.2d 855, the court by way of dictum, described four situations in which implied authorization is delegated from the insured to the original permittee. In one of these, the court in Hays applied an apparent ownership theory where it states; “Thus where the permittee is in every practical sense the owner of the car, and the named insured holds title for convenience, the general custody and control of the permittee is usuaUy held to empower him to grant permission to others within the scope of an omnibus clause, at least in the absence of express prohibition.”

In reviewing the facts of the case before us, it is apparent Stanley was a permittee given general custody and control which would authorize him to grant permission to others. However, according to the testimony of both Mrs. Lape and Stanley Lape, she had told him on numerous occasions not to allow others to drive the car. The effect of a prohibition so far as it may be said to limit the authority of the first permittee to grant permission to third persons, must be weighed in refer-, ence to the particular facts of each case. There is a difference between an express specific prohibition limited in time and one which is general and broad. Even though tile prohibition in this case was express, it was a general and broad direction and there is no indication that it was effective at the time Bowe borrowed the car for this occasion. The fact that Stanley had such control that he was the apparent owner thereof is the controlling circumstance, especially since he was not living at home with his mother. In Gillen v. Globe Indemnity Co., 377 F.2d 328, the Eighth Circuit Court of Appeals, in denying coverage, limited its holding to the particular facts involved. That court stated that even though the car was purchased by the father for the use of his daughter and he instructed her not to allow others to use it, she lived at home and her possession was under the daily control and surveillance of her father. The court indicated that its decision might not have been the same “if the first permittee has an equivalent of equitable title and has unfettered control over the daily use of the car outside of the surveillance of the named insured #

We take note of the fact that a general prohibition against allowing others to drive should be treated in a manner similar to other restrictions put on a permittee. For example, if a permittee is given use of a car for a business purpose but instead uses it for social purposes, it is generally held that the permission is nevertheless effective for purposes of insurance coverage. (See, Konrad v. Hartford Accident & Indemnity Co., 11 Ill.App.2d 503, 137 N.E.2d 855.) Also, if in spite of a prohibition, he allows a third person to drive while he is inside the car, an implied permission is effective. (See, Visintin v. Country Mutual Insurance Co., 78 Ill.App.2d 75, 222 N.E.2d 550.) Under all of these circumstances, a restriction as to permission is violated due to the permittee’s misconduct. There is no reason to treat the present restriction in a manner different from other restrictions.

We believe the trial court was not in error in deciding coverage under the insurance policy issued by plaintiff should be extended to Bowe. Accordingly, the judgment of the Circuit Court of Tazewell County is affirmed.

Judgment affirmed.

DIXON and SCOTT, JJ., concur.


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Cheryl Ann Ruf, a/k/a Cheryl Ann Pasnokot, Defendant-Appellant.
    (No. 73-3;
    Fifth District —
    August 3, 1973.
    John R. Sprague, Jr., of Sprague, Sprague & Ysursa, of Belleville, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from judgment entered on a guilty plea to a charge of aggravated battery, by which on August 28, 1972, the defendant, Cheryl Ann Ruf, was denied probation and sentenced to a term of one to three years at the State Reformatory for Women at Dwight.

The plea was entered as a result of negotiations in which the State agreed to dismiss an attempted murder charge based on the same occurrence and to stand mute on defendant’s application for probation on the aggravated battery charge to which defendant pleaded guilty.

The facts as described by the record are that on March 6, 1972, at approximately 2 A.M. a fight occurred at Sir Arthur’s Lounge in Belleville between Wayne Winter and.Jim Sullivan after Winter had made some comment to defendant who was sitting at the bar with Sullivan, a married man with whom defendant lived. Present in the Lounge at the time were 15 persons including defendant. According to some of the witnesses after the participants in the fight had been separated, and according to others before the participants had been completely separated, the defendant stepped around the end of the bar, took a gun from her purse, and shot Winter from thé rear through the left shoulder.

Upon the plea being accepted the cause was continued for a presentencing report and probation report and for a hearing on aggravation and mitigation. Such report was presented and appears in the record and attached to it were reports of the police officers who investigated the crime and statements which were taken by the police from eight persons who were eyewitnesses to the occurrence, other than defendant, Sullivan and Winter. The State’s Attorney advised the court in the presence of defendant and her retained counsel that defendant had examined the report, and no objection was voiced to any of the matters stated therein. Whether the report as submitted to defendant included the attached reports and statements cannot be determined from the record, but defendant does not suggest that they were not. The State’s Attorney recommended probation. Defendant offered no evidence in mitigation.

The report disclosed that defendant was a 25 year old divorced woman, the mother of two daughters aged 8 and 9 who resided with their paternal grandparents at an address in St. Louis which was unknown to defendant; that defendant was six months pregnant, unemployed due to her pregnancy and had no prior arrests or convictions. Defendant had completed tenth, grade and quit school in 1962 to get married. The probation officer concluded (1) that defendant was not likely to commit another offense, (2) the public interest did not require that she receive the penalty provided, and (3) that the rehabilitation of defendant did not require that she receive the penalty provided.

Here defendant contends the penalty is too harsh, that defendant should have been admitted to probation without incarceration, and that the court erred in considering the statements of witnesses attached to the probation report.

The trial court in denying probation and imposing sentence noted that defendant was illegally possessed of a weapon in the Lounge, determined that the fight had ceased and that defendant had intentionally shot the victim in the back, and that there had been no showing to depreciate the seriousness of the offense, and at the same time noting defendant’s pregnancy. While the court did not mention the possibility of defendant committing another offense, any necessity to protect society from this defendant, or the possibility of rehabilitation, factors which defendant urges should be considered as provided in Ill. Rev. Stat. 1971, ch. 38, § 117 — 1, we cannot say that the court gave any consideration to these important factors to be considered in denying probation and imposing a minimum sentence under Ill. Rev. Stat. 1971, ch. 38, § 12 — 4.

Furthermore, during the pendency of this appeal the Uniform Code of Corrections, (ch. 38, § 1001 et seq.) has become effective. Defendant is entitled to have her conviction reviewed in the light of its provisions and have consideration given to receipt of punishment as provided by its provisions. (People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269; People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1.) In addition to reiterating the factors provided in ch. 38, § 117 — 1 which has now been repealed, it provides alternatives which were not available to the trial court at the time of sentencing (ch. 38, § 1005 — 5—3), if the court is of the opinion that a sentence of probation supervision is not appropriate. (Ch. 38, § 1005 — 6—1.) It also provides for a system of periodic imprisonment to permit a defendant to attend to family needs. (Ch. 38, § 1005 — 7—1.) We cannot say that a disposition other than that imposed would be inconsistent with the ends of justice.

For these reasons we affirm the conviction, but reverse and set aside the sentence and remand this cause for sentencing under the provisions of the Uniform Code of Corrections.

Conviction affirmed, sentence reversed and cause remanded.

G. MORAN and CREBS, JJ., concur.


text:
    Ollie J. McAteer et al., Plaintiffs-Appellants, v. Menzel Building Company, Inc., et al., Defendants-Appellees.
    (No. 72-30;
    Fifth District —
    August 15, 1973.

      Walker & Williams, of Belleville, (Harry J. Sterling, of counsel,) for appellants.
    Edward F. O’Malley and Robert Cummings, both of Belleville, for appellees.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by plaintiffs Ollie J. McAteer and Catherine E. McAteer from an order of the Circuit Court of St. Clair County dismissing Count II of their amended complaint as to the individual defendants Harry Menzel and George B. Douros. The count sought damages by reason of those defendants having been officers of a Missouri corporation which had no certificate of authority to do business in Illinois, when on behalf of the Missouri corporation, they entered into a contract with plaintiffs in Illinois, for the sale of Illinois real estate.

On or about July 6, 1970, the plaintiffs Ollie J. McAteer and Catherine E. McAteer entered into a contract whereby they were to purchase six parcels of land in Clinton County, Illinois. The agreement was signed in East Saint Louis, and a copy attached to the complaint shows the seller to be “Menzel Building Company, Inc. by George B. Douros, Sec., Harry J. Menzel, Pres.” The contract was never performed, and the plaintiffs brought an action for specific performance and damages. It was stipulated by the parties that the count asking for specific performance be stricken.

After a hearing on a motion to strike the count asking for damages, the court dismissed the complaint as to the individual defendants. Plaintiffs appeal from that ruling. It was shown upon the hearing that the Menzel Building Company, Inc. is a corporation organized under the laws of the State of Missouri which had never secured a certificate of authority to transact business in Illinois.

The issue presented for review is, whether the directors and officers of a foreign corporation which has failed to secure a certificate of authority to transact business in Illinois are personally liable for any debts or liabilities of the corporation arising out of such unauthorized transaction of business in Illinois?

The exact question presented on this appeal has not been presented to a Reviewing Court in Illinois during the past thirty years. There are no decisions to be found upon the issue which have been decided under the present Business Corporation Act, (ch. 32, par. 157.1 et seq.) adopted in 1933. Thus this is a case of first impression under the present statute. In order to correctly decide the issue, a careful analysis of the legislative history of the present Act must be made, with particular attention being given to court decisions interpreting corresponding sections of prior Acts.

Since the appeal arises from the dismissal of the complaint against the individual defendants, we have only a limited amount of evidence with which to work in the present instance. For the purposes of this opinion we must make several assumptions which we feel are warranted by the record: that the Menzel Building Company, Inc. is a valid corporation lawfully organized under the laws of the State of Missouri; that the power to enter into such a transaction was within the scope of its corporate charter; that the contract was valid within the laws of both states (sec. 351.385 Mo. Rev. St.; Ill. Rev. Stat., ch. 32, pars. 157.103, 157.125); and that the corporation was actually transacting business in Illinois without having obtained the required certificate of authority. (See Pennsylvania Company for Insurance on Lives, v. Bauerle (1892), 143 Ill. 459, 33 N.E. 166; Calumet Council Building Corp. v. Standard Oil of Indiana (7th Cir. 1948), 167 F.2d 539.) With these assumptions in mind we can proceed to the disposition of the case.

Plaintiffs ground their claim for damages for breach of contract against the individual defendants upon either Ill. Rev. Stat., ch. 32, par. 157.150 dealing with unauthorized assumption of corporate powers, or Ill. Rev. Stat., ch. 32, par. 157.125, covering the transacting of business without a certificate of authority. Their reasoning is based upon the decisions rendered in Joseph T. Ryerson and Son v. Shaw (1917), 277 Ill. 524, 115 N.E. 650 and McGuire v. Outdoor Life Publishing Co. (1941), 311 Ill. App. 267, 35 N.E.2d 817 wherein the directors and officers of a foreign corporation doing business in Illinois without having procured the required certificate of authority were held to be personally liable for the debts of the corporation arising out of this illegal activity. An examination must be made of the statutes in effect at the time of these decisions and any subsequent changes in order to determine the present validity of these decisions under the current statute.

In 1917 when the Ryerson case was decided by the Illinois Supreme Court, the present Business Corporation Act was not in effect, it having been passed originally in 1933. The predecessor to paragraph 157.150 in effect at this time, was Laws of 1871-72, sec. 18, p. 296, wherein was included personal liability for those who assumed to exercise corporate powers without authority to do so “before all stock named in the articles of incorporation shall be subscribed in good faith 9 9 9”. This qualifying language would seem to indicate a legislative intent to limit the application of this section to de facto corporations which have not completed incorporation under the domestic incorporation laws of the State while excluding from its purview de jure foreign corporations which need not subscribe stock within the State in order to qualify to do business there.

This in fact was the very reasoning used by the court in Plew v. Board (1916), 197 Ill.App. 408 (aff’d 274 Ill. 232, 113 N.E. 603), where the court said at 410:

“It is the corporation itself and not its officers or agents that is subject to the penalties prescribed by our act regulating foreign corporation for failure of the corporation to comply with its provisions (Hurd’s Rev. St. 1911, Ch. 32, Sec. 67g, J&A Sec. 2531); and it is too obvious for discussion that section 18 of the General Incorporation Act (J&A Sec. 2435) which makes persons assuming to exercise corporate powers of a corporation liable under specific circumstances for debts contracted by them in its name, has no application to the failure of a foreign corporation to take out a license to do business in this State.”

Thus section 18 was considered at that time to be limited to defective domestic corporations which had not fully complied with the General Incorporation Act.

We note also that the court stated that the penalties of sec. 67g of ch. 32, Hurd’s Rev. St. 1911 were applicable to the corporation and not to its officers or directors. This was the section which was the predecessor of the present paragraph 157.125 in effect at this time. There are two aspects of this paragraph which must be noted: (1) as previously shown there is no personal liability imposed by the statute for failure of a foreign corporation to secure the needed certificate; and (2) tire statute holds that a non-complying foreign corporation may not maintain any action at law or in equity on any claim either in contract or tort arising during the period of noncompliance. The effect of this latter aspect may be gleaned from the case of United Lead Co. v. S. W. Reedy Elevator Manufacturing Co. (1906), 222 Ill. 199, 78 N.E. 567. Quoting with approval Cincinnati Mutual Health Assurance Co. v. Rosenthal (1870), 55 Ill. 85, our supreme court said at 222 Ill. 202:

“When the Legislature prohibits an act or declares that it shall be unlawful to perform it, every rule of interpretation must say that the Legislature intended to interpose its power to prevent the act, and, as one of the means of its prevention, that the courts shall hold it void. This is as manifest as if the statute had declared that it should be void.”

Applying this to the situation before it the court also said:

“The contract upon which this suit was brought having been entered into in this State when appellant was not permitted to transact business in this State, is in violation of the plain provisions of the statute, and is therefore null and void, and no action can be maintained thereon at any time, even if the corporation should at some time after the making of the contract qualify itself to transact business in this State by a compliance with our laws in reference to foreign corporations that desire to engage in business here.”

Thus at the time of the Ryerson case sec. 18 was held to apply exclusively to domestic corporations, and under sec. 67g of ch. 32 the contracts of the non-complying foreign corporation were null and void, and could not even be validated by subsequent compliance with the provisions of the act.

The argument was made at 447 in Ryerson that sec. 18 is made applicable to unqualified foreign corporations by reason of another section granting foreign corporations equal status with domestic corporations. The court dismissed this contention using much the same reasoning as was seen in Blew, supra, and held that sec. 18 was only applicable to domestic corporations. The court found “* * s a marked distinction between wrongfully assuming to exercise corporate authority, against which creditors are protected by section 18 (Gay v. Kohlsaat, 223 Ill. 260), and the failure of a duly organized foreign corporation to take out a certificate in this State pursuant to the requirements of the Foreign Corporation Act.” (201 Ill.App. at 447-8.) Thus the appeHate court held that the individual defendants were not liable under the statute.

The supreme court reversed the decision as to the finding of freedom of liability of the officers of the foreign corporation, but their manner of doing so leaves the reasoning of the appellate court intact. The court here agreed that there was no statutory liability for the defendants: “There being no statute declaring a liability of officers or agents representing a corporation not permitted to transact business in this State, the question of the liability of the defendants must depend on the application of rules of law under like conditions.” (277 Ill. at 531.) The supreme court then went one step beyond where the appellate court left off and found a liability based on common law principles of agency.

The basis of the decision is found at 277 Ill. 531-532: “The general rule is, that a person who assumes to act for a legaHy incompetent principal renders himself personally liable to the person with whom he deals unless such person knows of the want of authority, (31 Cyc. 1548) and one dealing with an officer or agent of a foreign corporation cannot be presumed to know that the corporation has not complied with the laws of the State.” In so holding, the court specificaHy excluded that sort of statutory liability which the plaintiff in the case at bar would find helpful to his cause.

The reasoning of the court in reaching that decision was as follows: Since (as previously shown) according to the statute then in effect the contracts of the unqualified foreign corporation were void, the corporation was deemed to have no corporate existence nor power within the State. The statute had rendered it incompetent to contract, any attempt by an officer to enter into a contract in the corporate name was a futile effort, and under common law agency principles the agent was personally liable as attempting to contract for an incompetent principal. The result was personal liability of the officers. The decision seems to be limited to the situation where the directors or officers entered into contracts which were void under applicable law. (277 Ill. at 532.) As we shall see later, this is the main reason why plaintiffs reliance upon Ryerson is unsound when considered in light of the present statute.

In 1919 secs. 67g and 18 were repealed and replaced by Act June 28, 1919, Laws of 1919, p. 312, secs. 94 and 149 respectively. These statutes evidenced apparent legislative approval of the Ryerson decision. Section 149 followed its predecessor sec. 18 in that no mention was made regarding its possible application to foreign- corporations. Similarly sec. 94 retained the provision voiding the contracts of the non-complying foreign corporation while making no mention of any possible statutory liability for individual officers or directors. It thus left intact the basis upon which Ryerson was decided.

Under these statutes, the reasoning of the Ryerson case was approved on several occasions. (Critchfield and Co. v. Armour (1923), 228 Ill.App. 28; Parker-Holladay Company v. Bokum (1929), 252 Ill.App. 135.) Independently of the question of foreign corporations, Ryerson has been cited for the agency principle upon which it is actually based. (Riley v. Bondi (8th Cir., 1933 ) 64 F.2d 515.) On occasion it has been misinterpreted as in Bradford v. Harbor Belt R.R. Co. (7th Cir., 1927), 16 F.2d 836 wherein the court held that despite the explicit language in Ryerson and prior cases, contracts of unqualified foreign corporations are not void but merely voidable, at least at the choice of the other party.

In 1933 the statutes were again changed and the 1919 acts were repealed in favor of the Business Corporation Act. (Ill. Rev. Stat. 1969, ch. 32, pars. 157.1-157.167.) This is the present statutory package with which we are dealing in this case. Under this Act, section 149 of the 1919 Act was repealed and replaced by a shortened version — par. 157.150. The main change as regards this decision was made to the former section 94 by the new paragraph 157.125. Two major modifications were made which changed the entire tenor of the section: (1) the new paragraph states that no suit may be brought by the unqualified foreign corporation until the certificate of authority is obtained, thus removing the former absolute bar to such actions; (2) paragraph two of the paragraph states that the failure to secure the certificate will not impair the validity of any contracts of the corporation, thus explicitly reversing the philosophy of the section it replaces.

The second case which appellant relies upon heavily, McGuire v. Outdoor Life Publishing Co., supra, was decided after the present act went into effect. However, the contract upon which the claim arose was entered into before the passage of the present statute and was therefore governed by the 1919 provisions. The court held that the question of whether the 1919 or 1933 law applied was not controlling. While apparently holding for personal liability under the 1919 Act, the court stated that if the 1919 Act did not apply, liability would be at common law since the Business Corporation Act does not make any provisions regarding such personal liability, thus implying an extension of Ryerson. The court went on to say that paragraph 157.125 of the act did not bar any remedy of the appellant in that case. 311 Ill.App. at 278.

It is apparent that the court in the McGuire case did not take full cognizance of the changes rendered by the 1933 law. The fact that the contracts of the corporation are held to be valid under the present act seems to completely undermine the basis of the Ryerson decision. Now, the corporation is not prevented from contracting; it is no longer a legally incompetent principal. Therefore it would logically seem to follow that the officers of a foreign corporation would no longer be personaUy liable.

We agree with the criticism contained in the Comment to sec. 125 of the Business Corporation Act Annotated 1947. Speaking of the McGuire decision, the comment states, at 410-11:

“The validity of the decision seems doubtful since the actual basis of the Ryerson case was that under the common law a person who assumes to act as agent for a legaUy incompetent principal renders himself personally Hable to the person with whom he deals and that such common law ‘rule ought to be appHed to directors and officers of a corporation prohibited from doing business in this State where they participated in making the contracts void by our law’.
The present Act repealed section 128 of the 1919 Act, which had prohibited a foreign corporation from transacting business in this State until franchise taxes and fees were paid. The present Act also made contracts of unlicensed corporations vahd. It thus cut the ground from under the Ryerson case, on which the McGuire case was based. In the McGuire case, the court might well have found that the present Act did indicate a legislative intention to bar creditors of such a corporation from a remedy against its officers, agents or directors.”

To hold that the individual directors and officers of the unHcensed corporation are individually Hable, would be to ignore the plain meaning of the statute and to disregard the purposes for which it was adopted. This construction is also consistent with the comments to the Model Business Corporation Act Annotated 2nd Ed. vol. 2, section 124, 1971 covering the sections which are almost identical to the Illinois sections.

It also follows the great weight of authority in the area “It is the majority rule that, in the absence of definite statutory authority therefor, officers, stockholders, incorporators, or other persons contracting for or on behalf of a non-complying foreign corporation cannot be held liable on its contracts as partners”. Fletcher’s Cyclopedia Corporations, 1969 Rev. Vol., Vol, 17, ch. 67, section 8524, p. 748; see also 36 Am.Jur.2d p. 437 (Foreign Corporations sec. 427); 20 C.J.S. Corporations sec. 1860, p. 86.

An analogy to a parallel situation may be drawn upon as a further basis upon which to ground this decision. The court in Ryerson noted that the reasoning they were applying had been used under similar cirr cumstances by other courts. In particular, it alluded to several Pennsylvania decisions, particularly Lasher v. Stimson (1892), 145 Pa. 30, 23 A. 552 and Raff v. Isman (1912), 235 Pa. 347, 84 A. 352 wherein .the Pennsylvania Supreme Court held individual officers of foreign corporations liable under the incompetent principal theory 277 Ill. at 532-533. The Pennsylvania statute in effect at the time- of those decisions voided the contracts of such unlicensed corporations as did the old Illinois statute. But in 1911, a new statute was passed in Pennsylvania which granted validity to such contracts. In interpreting this section, the Pennsylvania Supreme Court said: “This expressly repeals the Act of April 22, 1874, P.L. 108, and somewhat modifies the statute of an unregistered foreign corporation, validating its contracts, subjecting it to suit in this state, also enabling it to sue here upon compliance with the statute”. (Bala Corp. v. McGlinn (1929), 295 Pa. 74, 75, 144 A. 823, 824.) Thus the Pennsylvania statute of 1911 had the same effect on the law of that state as the 1933 provisions have on Illinois law.

Upon reaching the merits of the case the court said: “Plaintiff, having knowingly dealt with the corporation as such and having full right of action against it, there is no reason why the officers, who are charged neither with fraud nor falsehood, should be individually liable.” « * * “Furthermore, it is a general rule that one who deals with a corporation, .knowing it to be such, cannot enforce an individual liability against the officers or agents who act for the corporation.” (144 A. at 824.) Followed in Walsh v. Hallstead (1940), 140 Pa. Super. 13.

Since we see no reason to distinguish the Pennsylvania situation from our own, we adopt the holding and reasoning of the Pennsylvania Supreme Court on this matter. Applying that decision to the merits of this case, no cause of action is shown to exist against the individual defendants.

Therefore the order to strike the complaint as to the two individual defendants is affirmed.

G. MORAN and JONES, JJ., concur.


author: Mr. JUSTICE ABRAHAMSON

text:
    Marvin DeGarmo, Plaintiff-Appellee, v. Aldeco, Inc., Defendant-Appellant.
    (No. 72-381;
    Second District —
    August 8, 1973.
    Thomas E. Aul, of Milwaukee, Wisconsin, for appellant.
    David F. Smith, of Loves Park, for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

Defendant appeals from a judgment of the circuit court of Winnebago County which, after opening a judgment by confession and after answer and hearing, found the issues for the plaintiff and allowed the judgment to stand.

The judgment by confession was entered on September 29, 1971, for $12,351.53 (being $10,000 principal, $251.53 interest and $2100 attorney fees) under a warrant of attorney in a promissory note executed by defendant. The note was dated April 16, 1969, and the defendant promised to pay the principal sum of $10,000 to plaintiff’s order as follows: “The undersigned shall make yearly installment payments in such sum or sums as the undersigned, in its sole discretion, may determine * * followed by a proviso “that the entire balance of principal and interest shall be due and payable on April 16th, 1979.” It further provided that “Beginning April 16, 1971 (being two years after the date of the note) interest shall be payable on the balance of principal remaining from time to time unpaid at the rate of six (6%) per cent per year.” The note also included a power of attorney to confess judgment “at any time after default” in favor of the holder “for the unpaid balance, interest, costs and reasonable attorney’s fees.”

The trial court opened the judgment on plaintiffs motion and his supporting affidavit. Defendant filed its answer and the court heard evidence adduced by both parties. The record discloses that the note was drawn by defendant’s attorney. Defendant made no payment whatever on the note prior to judgment. About two years after the note was delivered to plaintiff, the defendant corporation transferred its business from Rockford, Illinois, to Milwaukee, Wisconsin. On July 26, 1971, plaintiffs attorney wrote to defendant’s president in part, as follows:

“I have been contacted by Marvin DeGarmo regarding your installment note of $10,000, dated April 16, 1969. Under the terms of the note, you were to make yearly installment payments on the obligation. This has not been done and you are in default. The note could be placed in judgment at this time.
I have also been advised that you have disposed of the assets of Aldeco Inc. and have bought into another company.
Please advise me of your intentions regarding this note, so that no further action need be taken.”

By letter dated August 3, 1971, defendant’s attorney replied in part, as follows:

“A review of the language of the promissory note in question does not indicate the conclusion reached in your letter. Specifically, the note states that the entire amount of principal and interest shall be due and payable on April 16, 1979. Any prepayment of principal or interest, whether via yearly installments or otherwise, is solely within the discretion of the promissor. Therefore, I suggest that Aldeco, Inc. is not in default at this time.”

On August 16, 1971, plaintiffs attorney replied by letter stating in part:

“If Mr. Allen would agree to make at least interest payments yearly commencing April 16, 1972, and possibly some payment on the principal, I’m sure that Mr. DeGarmo would not take any further action. Could you please ask Mr. Allen if he would make interest payments and if he would be willing to pay something on the principal yearly.”

Having received no reply, plaintiffs attorney wrote a further letter dated August 24, 1971, stating in effect that he was instructed to take legal action against the defendant, “If I do not hear from you regarding this matter by the end of the month * * The court heard parol evidence in an attempt to resolve any ambiguity in the phrase “the undersigned shall make yearly installment payments in such sum or sums as the undersigned, in its sole discretion, may determine.” The evidence was conflicting as to the intention of the parties. Defendant’s evidence was to the effect that it was not his intention that yearly installments be made, while plaintiffs evidence was that he understood he would and should have received some payments annually.

After hearing the testimony the trial court concluded in effect that there was no ambiguity and that the provision in question required defendant to make annual payments whether they be “a dollar or a penny, in defendant’s sole discretion, and that the failure to make any yearly installment payment constituted a default. We agree.

The word “shall” has been repeatedly defined not as being permissive, but as mandatory, and as denoting obligation when employed with reference to a contract right. (See Weill v. Centralia Oil Service Co., 320 Ill.App. 397, 402, and cases cited therein.) Therefore, defendant was obligated to make “yearly installment payments.” “Installment payments” are periodic partial discharges of a sum due in money “or that which the creditor accepts as money or in lieu of it.” Scott v. Gilkey, 49 Ill.App. 116, 122; Stricklin v. Eldorado Bldg. & Loan Ass’n, 280 Ill.App. 580, 584.

Thus, it is obvious that defendant’s failure to discharge its obligation to make yearly installment payments in any amount (whether “a dollar or a penny”) constituted a default.

Defendant contends that the maturity date was April 16, 1979, and judgment could not be confessed prior thereto in the absence of an acceleration clause. However, the defendant expressly granted in the note the warrant of attorney to confess judgment “at any time after default • * * for the unpaid balance, interest, costs and reasonable attorney fees.” (Emphasis supplied.) As the court stated in First Nat. Bank v. Galbraith, 271 Ill.App. 240, 244:

“[I]t is well established law in this State that judgment is not prematurely taken on a warrant of attorney, forming a part of a promissory note, for the amount unpaid on the note, although the note is not due by its terms, where the warrant provides that judgment may be taken at any time after the date of the execution of the note.” [Citations.]

This court had occasion to cite that case with approval in Ives v. May, 5 Ill.App.3d 193. In the case at bar there was the additional element of default in yearly installments which defendant was obligated to make. The judgment is therefore affirmed.

Affirmed.

GUILD, P. J., and T. MORAN, J„ concur.


author: Mr. JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gregory Kim Stutzel, Defendant-Appellant.
    (No. 72-143;
    Second District —
    August 9, 1973.

      Jay B. Ross and Jeffry T. Mandell, both of Chicago, and Jay S. Judge and Thomas W. Hunter, both of Park Ridge, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, for the People.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

A bench trial resulted in defendant being found guilty of the unlawful sale of a drug. (Ill. Rev. Stat. 1989, ch. 111½, sec. 802(b).) Granted probation, he was to serve the first ninety days in the County Jail. Defendant claims that the actions of a police informant constituted entrapment. Two sub-issues are raised: (1) the court erred in refusing to continue the case in order that a co-defendant could testify without incriminating himself, and (2) the State should have been compelled to produce the informant.

John J. Zandey, a narcotics inspector for the Illinois Bureau of Investigation (I.B.I.) testified that on May 19, 1971 he was told by an agent of the Wisconsin Department of Justice that an informant, Mark Mesher (also known as Shad), had arranged for the purchase of 25,000 tablets of “speed”; that Zandey agreed to meet with Shad that evening; that at 8:00 P.M. Zandey, accompanied by another I.B.I. agent, proceeded to the prearranged meeting place; that they met Shad who introduced them to Dennis Williams and Richard Armstrong, co-defendants herein; that Armstrong stated he had not made his connection but that it would take place at 10:30; that, at 10:30 P.M. the agents again met Shad, Williams and Armstrong and were told to come back at 11:30; at 11:30 they were told to come back at 11:45; that the agents exhibited some impatience during the evening because of the delays; that upon returning at 11:55 P.M., defendant arrived and sold the agents a bag containing 25,000 tablets of amphetamine.

The defendant testified that he had known Richard Armstrong for six months prior to May 18, 1971; that in the evening of May 18 he received a phone call from Armstrong who asked defendant if he could obtain 25,000 tablets of speed, to which he replied he didn’t want to, didn’t know if he could, but would try; that Armstrong responded that he would call defendant the following night. Defendant stated that he did not attempt to obtain the drugs; that the next morning Armstrong called and said that his friend, Shad, had already gone ahead with the arrangements, and that two men affiliated with the syndicate were coming from Detroit. Defendant informed Armstrong that “for sure” he didn’t want “to do it”; to which Armstrong replied that they were already on the way and defendant “couldn’t get out of it.” Defendant then went to a college campus to look for Joe (a man pui-ported to be involved with drugs), “ran into” Armstrong and was again told that Shad had set it up and that two people were coming down from Detroit. Contacting Joe, defendant explained the situation; Joe said he would try to help and would call defendant later that day. Continuing his testimony, defendant stated that at 8:00 P.M. Armstrong called saying he was with the two men from Detroit who were angered because “it wasn’t to go,” that they had displayed a gun and said “everything better go right this time otherwise they would be back down;” that he again told Armstrong he “definitely didn’t want to do it” but was advised that his life might be in danger if he didn’t go through with it; that he told Armstrong he would have to wait until Joe called; that Joe called, said he could obtain the drugs but that it would take 3 or 4 hours because the drugs were being brought from southern Illinois; that at 10:30 Armstrong called again, at 11:00 P.M., the drugs were delivered and defendant subsequently brought them to the I.B.I. agents who talked about the “boss in Detroit” and used the expression “key man.” Defendant was then arrested. He maintained that he had never sold drugs before and that he had not known Shad or Dennis Williams prior to May 19, 1971.

Dennis Williams, who earlier pleaded guilty, testified that he had not known defendant prior to May 19, 1971, had known Richard Armstrong since high school, had met Shad in college and was a partner with him in the sale of drugs; that Shad had told him he could obtain money from the syndicate for the purchase of speed; that he and Shad went to Armstrong’s house on May 18, 1971, and inquired as to whether he could obtain speed; that Armstrong responded that he was not sure but might be able to help; that on the evening of May 19, one of the I.B.I. agents displayed a gun and said “this thing better go because we might have to come back if you guys mess this up”; that the agents “got kind of hostile” when the drugs did not initially arrive.

John Zandey was recalled as a witness and denied showing a gun to Williams, Shad or Armstrong and denied stating that they would be back if everything didn’t go right.

A major portion of the evidence introduced as a defense was foundéd upon hearsay. It was allowed to stand over objection with the court’s understanding that testimony of other defense witnesses would serve to connect such evidence. This was not done. At the conclusion of trial, the court found no credence in defendant’s attempt to establish entrapment, and stated “I have no choice but to find him guilty * * * I

can’t see where he was coerced or forced into selling it because of the syndicate, I think this is hog wash and I think he is as guilty as a young man can be * *

The defense of entrapment has been defined by our supreme court in People v. Dollen, 53 Ill.2d 280, 283, (1972). In part the definition is:

* * [WJhere it appears that officers of the law or their agents have conceived and planned a criminal offense and have incited, induced, instigated, or lured the accused into committing an offense which he would not otherwise have committed and had no intention of committing, entrapment is established and no conviction may be had.’ ”

Defendant argues that he was entrapped as a matter of law by the informant’s representations to Williams and Armstrong that the purchasers were members of a crime syndicate, that failure to complete the transaction would meet with repercussions and that he was not only lured or persuaded, but literally frightened into providing the drugs. He claims this is further bolstered by testimony that he was originally reluctant to provide the drugs.

One of the essential elements of entrapment is that officers of the law or their agents have incited, induced, instigated or lured the accused into committing the offense. While defendant’s testimony stands almost totally unrebutted, evidence establishing entrapment, as defined, is not present. The record is void of any proof that the police informant Shad (whose activities the police are responsible for, People v. Dollen, supra at 284) ever had any direct contact with defendant, ever directly threatened defendant or even knew him. Were we to assume that allegations of syndicate connections and implied threats of repercussions constitute entrapment, such statements in the case at bar came not from the police or their informant-agent, but from defendant’s friend Armstrong. We cannot say as a matter of law that the evidence shown herein constitutes entrapment. This is supported by our research of other jurisdictions. United States v. Emory, 468 F.2d 1017 (1972); Thompson v. State, 290 N.E.2d 724 (S.Ct. Ind. 1972).

Defendant contends that it was error for the State not to produce Shad as a witness, the defense being unable to locate him. He cites cases which hold that once a defendant has presented some evidence to raise the issue of entrapment, the burden of proof is upon the State to rebut this evidence beyond a reasonable doubt. (See People v. Dollen, supra at 284.) Also cited are cases where the prosecution should call the informer as a witness to rebut the defense’s evidence tending to prove the informer entrapped the defendant; that failure to do so creates an inference against the State. (People v. Strong, 21 Ill.2d 320, 325 (1961); People v. Jones, 73 Ill.App.2d 55, 58-60 (1966).) These rules of law are applicable when a defendant has presented some evidence raising the issue of entrapment. Having already found the record lacking such evidence, we find the cases inapplicable.

Prior to closing proofs, defense stated:

“The next witness (Richard Armstrong) has not been tried and his Attorney has advised him not to testify.”

The Court responded:

“I have no right under the law to allow him to testify and I just can’t do it * *

Counsel then requested a continuance until after Armstrong had been tried. Upon denial of the request, defense rested. Defendant now claims that the court erred in not allowing Armstrong to testify. Except for the representation by defense counsel, the record is silent as to whether Armstrong was present and if present, whether he would refuse to testify. Regardless, the trial court was not empowered to compel Armstrong to testify while he was awaiting trial for an offense arising out of the same transaction for which defendant was being tried.

Defendant also alleges the court erred in refusing to grant the continuance. The granting of a continuance in a criminal trial is a matter of discretion resting with the trial court and its exercise will not be disturbed unless there has been a manifest abuse of such discretion. (People v. Kees, 32 Ill.2d 299, 303, 304 (1965).) We find no such abuse here. Defendant had previous continuances; he made no offer of proof either to the fact that Armstrong would testify or regarding the substance of that testimony. In any event, Armstrong’s testimony could only have corroborated defendant’s, and we have already held defendant’s testimony insufficient to raise an issue of entrapment.

Finding no error we affirm the judgment of the lower court.

Judgment affirmed,

GUILD, P. J., and SWANSON, J., concur.


author: Mr. PRESIDING JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Watkins, Defendant-Appellant.
    (No. 72-73;
    Third District —
    August 13, 1973.
    James Geis, Deputy Defender, of Ottawa, for appellant.
    Martin Rudman, State’s Attorney, of Joliet, (Ludwig Kuhar, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court: •

Following a jury trial in the circuit court of Will County, defendant Robert Watkins was convicted of the crime of voluntary manslaughter and was sentenced to the penitentiary for a term of not less than 7 nor more than 20 years. Defendant appeals from the judgment of conviction and from the sentence imposed and asserts (1) that he was not proven guilty beyond all reasonable doubt, (2) that the prosecutions closing argument to the jury was prejudicial, and (3) that his sentence was excessive.

It is clear from the record that Robert Watkins killed W. T. Wells on January 10, 1971. Wells was stabbed with a knife outside a tavern. A police officer, Sidney Edwards, who arrested Watkins a month after the killing, testified that Watkins volunteered that he had killed Wells. The tavern operator also testified that, following the stabbing, Watkins asked the tavern operator to call the police because he, Watkins, believed he had killed a man.

The only confusing element in the case arose from the testimony of Hardy Shaw, a companion of Wells and Watkins. Shaw was apparently the only eyewitness to testify. His testimony was inconsistent and contained divergent versions of how and exactly where the stabbing occurred. Shaw stated, on one occasion, that he was in the rear seat of an automobile parked outside the tavern. At the trial he stated he was in the driver’s seat and had lied because his driver’s license had been under suspension. Shaw’s testimony, while somewhat muddled, was that Wells left the tavern. He testified that Watkins said, “Hold it a minute” and walked to the automobile where Watkins put his arm around Wells inside the car. Shaw said that immediately thereafter Wells was bleeding and was mortally wounded. Shaw also testified that he did not see Wells with a gun on that day. The testimony of John Wilson, who had been drinking in the tavern with Wells and Watkins, also confirms that Wells was waiting in the car. Wilson testified that Watkins stated, “Man, I had to do it, the guy was messing with me”. Wilson also did not see a gun at any time.

Police officer Edwards testified that Watkins admitted the killing and that Watkins said that he had paid Wells, for a bottle of gin that Wells had apparently stolen. Watkins said he did not receive the bottle from Wells. Watkins told the officer, that as Wells prepared to leave in the automobile, Watkins told Wells he would take the bottle for which he had paid and that Watkins said that Wells then called him some bad names and told him to get away from the car. He also said that Wells stated he would blow Watkins head off and that Watkins was not going to get anything. Edwards testified that Watkins then said that as Wells reached under the seat, Watkins attempted to save himself by stabbing Wells. Officer Edwards said he searched the automobile following the killing and found no gun in the automobile.

It appears from the record that Wells apparently did have a reputation for frequently carrying a sawed-off shotgun. He sometimes carried the gun' into taverns when he was drinking but there was no evidence that Wells had a gun with him on January 10, the day of the killing. Two witnesses, friends of Watkins, Virginia Williams and Eligha Tanner, testified that on January 9, 1971, the day before the killing, they had seen Wells, in the presence of Watkins, accost a boy with a shotgun and threaten to kill the boy.

It is clear from the evidence that Watkins killed Wells, and that the jury, as finders of fact, was entitled to believe or disbelieve so much of the evidence as it wished. The triers of fact could reconcile any discrepancy which might have been raised by the testimony of various witnesses. (People v. Hoffman, 45 Ill.2d 221, 258 N.E.2d 326; People v. Lawrence, 126 Ill.App.2d 202, 261 N.E.2d 459.) The jury in the case could have ignored inconsistencies in Shaw’s testimony. It was apparent that Watkins stabbed Wells and caused his death. It is contended that it should be implied from the police officer Edwards’ testimony (concerning defendant Watkins’ admission to him) that there was enough to show that defendant may have been acting under a sudden and intense passion resulting from serious provocation by Wells in accordance with the terms of Ill. Rev. Stat. 1971, ch. 38, sec. 9 — 2(a).

A contention is made by appellant that the State failed to discharge a burden that somehow developed upon the State and that it was required to prove beyond a reasonable doubt that Watkins’ use of force was not justified, under the provisions of Ill. Rev. Stat. 1971, ch. 38, sec. 3 — 2.

We do not find such burden imposed upon the State as a result of the testimony of Officer Edwards or any showing of récord. Even if the testimony did raise such issue, the other evidence presented by the State showing that Watkins had been with Wells for a lengthy period prior to the killing and that no gun had been in Wells’ possession, was sufficient to support a finding that beyond a reasonable doubt Watkins’ use of force was not justified. Under Ill. Rev. Stat. 1971, ch. 38, sec. 7 — 1:

"A person is justified in the use of force * * * which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself * *

As we note from the record, the statement of Watkins made to the police officer did not indicate that Watkins (when he stabbed Wells) reasonably believed either that he was in danger of imminent death or great bodily harm, or that even if he did so believe, that his use of force to the extent of stabbing Wells was necessary to prevent such harm. We have only the voluntary statement made by Watkins to the arresting officer on this issue, since Watkins did not testify in the case.

The record discloses Edwards’ statement as we have reported it in the course of this opinion. The prosecutor’s argument simply attempted to show that Watkins’ voluntary statement did not reflect the truth. Other witnesses, who had been in the presence of Watkins and Wells, had not seen a gun. No objection was made during the argument to such statements made by the prosecutor. We will not now overturn the Watkins conviction on the ground that somehow a valid distinction existed between whether the testimony was that Watkins said he saw Wells with a gun, or, alternatively, that Watkins merely assumed that Wells was in possession of a gun. The prosecutor had the right to argue and comment upon evidence in the record and any inferences which might be drawn from such evidence. We note also in the record that the apparent purpose of the testimony of defense witnesses, Virginia Williams and Eligha Tanner, was to show that during the night before the killing, but within 24 hours of the killing of Wells, Watkins had seen a gun in Wells’ possession. Since the presence of the gun on the evening before the killing, and the absence of the gun on January 10, were each material to the defense of justifiable use of force, the prosecution certainly had the right to argue that, even though defense witnesses had testified that Wells was in possession of a gun the evening before the killing, the jury should consider that no gun was found on the scene or on the person of the decedent at the time of the killing.

It is finally contended that the sentence as imposed is excessive and should be modified. The sentence was within the range of penalties imposed for the crime of voluntary manslaughter under the terms of Ill. Rev. Stat. 1971, ch. 38, sec. 9 — 2. On January 1, 1973, voluntary manslaughter became a Class 2 Felony. Since it is a Class 2 Felony and subject to regulations applying to “an indeterminate sentence”, the maximum is not to exceed 20 years with a minimum of not less than 1 year. (Ill. Rev. Stat., 1973 Supp., ch. 38, sec. 1005 — 8—1(a)(b)(3).) The minimum term specified therein, in section 1005 — 8—1(c)(3), is required to be “not greater than one third of the maximum term set.” We note that while the investigating probation officer had recommended probation, following service by Watkins of some time in the penitentiary, the trial court was not bound by such recommendation. It appears from such report, also, that defendant spent 9 years or approximately 25% of his life in various penal institutions. While we might have imposed a sentence of fewer years or one consistent with the probation officer’s recommendation, we cannot substitute our judgment on this issue for that of the trial judge who obviously exercised a reasonable discretion in view of the record in this case. It is, however, obvious that the minimum sentence in this case should be reduced to six (6) years and eight (8) months.

The judgment of conviction of the Circuit Court of Will County, therefore, is affirmed but the sentence in this cause is modified to provide that the minimum sentence imposed in this cause is a period of six (6) years and eight (8) months.

Conviction affirmed. Term of minimum sentence modified.

DIXON and SCOTT, JJ., concur.


author: Mr. JUSTICE SCOTT

text:
    Donald Earl Hundt, Admr. of the Estate of Margaret L. Krus, Deceased, Plaintiff-Appellant, v. Robert L. Burhans et al., Exrs. of the Estate of Ernest C. Burhans, Deceased, Defendants-Appellees.
    (No. 72-233;
    Third District —
    August 13, 1973.
    Elmo E. Koos, of Peoria, for appellant.
    Robert C. Strodel, of Peoria, (Arthur Kingery, of counsel,) for appellees.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

This matter comes before this court on an appeal from the denial of the trial court to vacate an order dismissing, with prejudice, the second amended complaint of plaintiff.

The original complaint was filed September 16, 1970, alleging that on or about September 16, 1965, defendants’ testator secured a written consent from plaintiff's intestate to perform a spinal fusion on her, but thereafter performed an exploration of the spinal cord and rhizotomy of certain posterior nerve roots. That this constituted a trespass and battery on her body and caused her pain and suffering, medical expenses, loss of profits and permanent disability during her lifetime. On motion by defendant, the complaint was dismissed on the finding by the trial court that it was barred by the statute of limitations. No appeal was taken from this finding or dismissal by the trial court. By leave of this court an amended complaint was filed and then a second amended complaint was filed which is the complaint before this court.

The second amended complaint alleged in substance that plaintiff’s intestate employed defendants’ testator to treat and diagnose a certain condition believed to necessitate a spinal fusion. That she signed a consent authorizing a spinal fusion. That defendants’ testator thereafter, on September 17, 1965, performed an exploration of the spinal cord and rhizotomy of certain posterior nerve roots in contrast to the surgical procedure authorized. That as a result of the breach of an alleged contract to perform the spinal fusion, she was compelled to spend large sums of money for medicines, medical and surgical treatment and attendance, X rays, convalescent care and treatment and loss of earnings. No copy of any written instrument was attached to the complaint and no explanation was given for the absence of any such instrument.

Plaintiff in effect makes two arguments. Fust, that the second amended complaint is suit for breach of contract and that the two year statute of limitations for injury to the person does not apply, and secondly, that if the second amended complaint is subject to the two year statute of limitations there is nothing in the record of this case to affirmatively show that it is barred by said statute.

The original complaint in this case was clearly for injury to the person and was clearly dismissed on the finding by the trial court that it was barred by the two year statute of limitations. That finding and order by the trial court was clearly appealable by plaintiff. Plaintiff accepted that ruling and finding before the trial court by filing his subsequent complaints and we will not now disturb that finding on the basis of the record before this court.

The only question we consider to be before this court is whether the second amended complaint sets forth an action for breach of contract which is not barred by the two year statute of limitations for injury to the person.

Plaintiff cites Stanley v. Chastek, 34 Ill.App.2d 220, 180 N.E.2d 512. That case involved a written instrument, signed by both the doctor and patient reciting a consideration. There were certain references in the written instrument to “this contract”, “the contracting party” and “services contracted for herein.” While a copy of the written contract was not attached to the complaint, its absence was explained to the satisfaction of the court. That suit was for damages for breach of contract resulting in injury to the plaintiffs teeth. The court held that the plaintiffs complaint stated a cause of action for breach of contract and was not barred by the two year statute of limitations for injury to the person.

We express no opinion on that court’s decision under the facts of that case. However, we can find no similarity between that case and the complaint before this court. The only written instrument referred to in the complaint before this court is the content signed by plaintiffs intestate. Neither the consent or any other written instrument was attached to the complaint, nor its absence explained. There is no allegation that the consent or any other written instrument was signed by the defendant’s testator; or that any written instrument recites a consideration, or contains any contractual language as in the Stanley case.

Next, plaintiff relies on Doerr v. Villate, 74 Ill.App.2d 332, 220 N.E.2d 767. In that case the complaint alleged that the plaintiff and the plaintiff’s husband had entered into an oral agreement with a doctor for the husband to be sterilized. That the doctor assured and warranted to the plaintiff that the operation would sterilize her husband. That the operation was performed, and in reliance on the assurances and warranties of the doctor, plaintiff and her husband thereafter resumed sexual relations. That as a result thereof a child was born which was both retarded and physically deformed. That as a result the plaintiff became hable for medical expenses and special care for the child. The court held that the action was not for an injury to the person of the plaintiff and was not barred by the two year statute of limitation. In reaching that decision, the court held that the statute of limitations to be applied to a given case is determined by the nature of the injury resulting to the plaintiff. That the plaintiff was not treated by the doctor and was not suing for damages caused by any physical condition of hers resulting from being treated by the doctor.

In this case the plaintiffs intestate was treated by defendants’ testator and is suing for damages caused by her physical condition allegedly resulting from that treatment. We agree with the statement in the Doerr case that the statute of limitations to be applied is to be determined by the injury resulting to the plaintiff. The injury resulting to the plaintiffs intestate as set forth in the second amended complaint in this case resulted from her physical condition allegedly caused by treatment received by her from defendants’ testator. Any damagees suffered by plaintiff’s intestate are directly traceable to her physical condition as a result of an alleged injury to her person.

Handtoffski v. Chicage Consolidated Traction Co., 274 Ill. 282, 113 N.E. 620, is controlling in this case. The court held that the applicability of the statute of limitations is determined by the injury resulting to the plaintiff and not the form of the action. The court stated:

“To hold that a suit for damages for injury to the person, when sued for in assumpsit, as for a breach of an implied contract, may be brought within five years after the cause of action had accrued, would be to create arbitrarily a longer period of liability in certain exceptional cases, such as the case at bar, than is established ■for other cases for personal injuries, in which an action in assumpsit will not lie. Other states have refused to so construe statutes of limitations similar to ours in all essential features, and we think they state the correct rule.”

We hold in this case that regardless of the form of the action, the second amended complaint is a suit for damages for injury to the person and is barred by the two year statute of limitations for injury to the person.

Judgment affirmed.

STOUDER, P. J., and DIXON, J, concur.