text:
    GEORGE H. HUBER, Petitioner-Appellant, v. JOHN C. REZNICK, Respondent-Appellee.
    Fifth District
    No. 81-180
    Opinion filed June 11, 1982.

      George H. Huber, of Vandalia, for appellant, pro se.

    John C. Reznick, of Vandalia, for appellee, pro se.

   JUSTICE JONES

delivered the opinion of the court:

This appeal stems from an election contest action brought by appellant, George Huber (Huber), to contest the election of appellee, John Reznick (Reznick), to the office of State’s Attorney of Fayette County, Illinois.

Huber and Reznick were the Democratic and Republican candidates respectively for the office of State’s Attorney in the general election held on November 4, 1980. Upon completion of the counting and canvassing of the votes in the 35 precincts of Fayette County, Reznick was declared to be the duly elected State’s Attorney of Fayette County, as having received 4, 920 votes to Huber’s 4, 888 votes. Discovery was instituted by Huber, and an unofficial recount of the votes in nine Fayette County precincts indicated a total vote of 4, 907 for Reznick and 4,902 for Huber. Huber then filed an election contest petition, requesting an examination and recount of all ballots cast in the 35 precincts of Fayette County.

The court appointed a special canvassing board which reported that, with the exception of certain ballots set aside for determination by the court, there were 4,869 votes for Reznick and 4,870 votes for Huber. Ballots objected to by the board included those which were found not to be valid votes for either candidate, those which had been placed in envelopes for “spoiled” ballots, and unvoted absentee ballots. These ballots were put in separate envelopes according to precinct and presented to the court for a determination as to their validity in each instance.

The court heard arguments of counsel as to the ballots objected to at a hearing which began on January 30, 1981. After the ballots had been considered and ruled upon by the court, the canvassing board’s total of 4,869 votes for Reznick was adjusted by 40 votes to a final total of 4,909, and the canvassing board’s total of 4,870 votes for Huber was adjusted by 39 votes to a final total of 4,909. The court found that both Reznick and Huber had the “highest and an equal number of votes” for the office of State’s Attorney of Fayette County and directed that the matter would be determined by lot pursuant to section 23 — 27 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 23 — 27).

At this stage in the proceedings the parties requested a continuance so that they might reach a settlement of the issues in the case. The trial court denied this request and advised counsel that they would be given a short period of time to select a method of settling the tie. When the parties failed to stipulate in this regard, the court directed the circuit clerk to flip a coin, and the coin flip was won by Reznick. The trial court declared Reznick to be the duly elected State’s Attorney of Fayette County and entered judgment accordingly.

On appeal from this judgment, Huber challenges the rulings made by the trial court as to the validity or invalidity of various ballots, including three absentee ballots which Huber contends should have been opened and considered by the court. Huber also cites as error the court’s refusal to grant a continuance to allow the parties time to settle the case and the court’s choice of a coin flip as the method used for determining the winner by lot.

We note initially that the parties have stipulated to the canvassing board’s totals of 4,869 votes for Reznick and 4,870 votes for Huber. Moreover, no objection is made as to the court’s ruling on a large number of the ballots questioned by the board. We are thus asked to consider only those ballots which were the subject of interpretation and decision by the trial court and which were not agreed upon by the parties. These ballots have been designated by the precinct number and the number of the particular ballot in that precinct and will be discussed individually in numerical order.

Ballot 3 — 3, the first ballot for consideration, was found to be a valid vote by the trial court, which ruled that the cross before Reznick’s name properly intersects within the square. Huber argues that the cross occurs on the lower line of the square and the ballot should not be counted. The rule as set forth by the supreme court in Tuthill v. Rendelman (1944), 387 Ill. 321, 347-48, 56 N.E.2d 375, 389, is that “the intersection of the cross must fall within the area formed and bounded by the lines of the square” and a cross which intersects on the line does not constitute a valid vote. This is a factual question which this court can determine as well as the trial court by examining the ballot before us. (Tuthill v. Rendelman.) We find from our examination that the horizontal line rests atop the bottom line of the square and therefore must be considered to form a cross within the square. It was not error to count this ballot as a valid vote for Reznick.

Ballot 8 — 1 contains a mark before Huber’s name that consists of a generally horizontal line slanting down to the right and a diagonal line beginning in the upper left corner of the square. The lines meet at approximately a 45 degree angle but do not cross. The trial court ruled that the ballot was invalid for lack of a proper cross. Huber contends that although the lines do not cross they make a mark in the form of an inverted letter T, which has been held to be a cross. (Barker v. Orr (1895), 158 Ill. 609, 41 N.E. 1002; Slenker v. Engel (1911), 250 Ill. 499, 95 N.E. 618; Tuthill v. Rendelman.) The mark before Huber’s name, however, is not a T. It more closely resembles a letter Y, and a Y is not a cross. (Greene v. Bjorseth (1932), 350 Ill. 469, 183 N.E. 464; Boland v. City of LaSalle (1938), 370 Ill. 387, 19 N.E.2d 177; Scribner v. Sachs (1960), 18 Ill. 2d 400, 164 N.E.2d 481.) The trial court correctly found this ballot to be invalid.

Ballot 9 — 11 is similar to ballot 3 — 3 in that it involves a question of fact as to whether the intersection of the two lines occurs within the square. Upon examination we find that the point of intersection is adjacent to but not on the line that forms the side of the square. This ballot was correctly counted as a valid vote for Reznick.

Ballot 9 — 12 contains three large X’s in the Republican party circle at the top of the ballot. The lines are heavy parallel pencil markings that cross within the circle and extend outside it. Huber contends that these lines constitute distinguishing marks which render the ballot invalid as it is highly unlikely that any other voter would mark his ballot in a similar manner. In Barlick v. Kunz (1940), 375 Ill. 318, 323, 31 N.E.2d 283, 285, the supreme court set forth the applicable test for determining what constitutes a distinguishing mark:

“Any deliberate marking of a ballot by a voter riot made in an attempt to indicate his choice of candidates, which is also effective as a mark by which his ballot may be distinguished, should be considered as a distinguishing mark, invalidating the ballot. [Citation.] Conversely, if it appears that marks were placed upon a ballot as the result of an honest effort by the voter to indicate his choice of candidates and not as an attempt to indicate the identity of the voter, the ballot should not be rejected. [Citations.] Whether a particular mark upon a ballot is a distinguishing mark is largely a question of fact to be determined from an inspection of the original ballot. [Citations.]”

The markings on ballot 9 — 12 are all made in the Republican circle, and it does not appear that they were made for any reason other than to indicate the voter’s choice of candidates. There is nothing about the manner or placement of the marks which manifests an attempt to indicate the voter’s identity. For this reason, the trial court’s finding that the multiple marks do not constitute a distinguishing mark or marks will be affirmed. See Kerr v. Flewelling (1908), 235 Ill. 326, 85 N.E. 624; Greene v. Bjorseth.

Ballot 14 — 2, like ballots 3 — 3 and 9 — 11, is objected to on the ground that the X before Reznick’s name does not cross within the square. We agree with the trial court’s ruling that it does intersect within the square as the vertical line extends beyond the horizontal line for a fraction of an inch within the square. Ballot 14 — 2 was correctly found to be a valid vote for Reznick.

Ballot 17 — 1 was held to be invalid as a vote for Huber because the lines in the square before his name do not intersect. We agree. An examination of the ballot reveals that the lines, which would otherwise form a V, do not touch and certainly do not cross. Huber’s reliance on the court’s language in Tuthill v. Rendelman that lines which came “into practical proximity with [each] other” were “close enough to warrant the conclusion that they touch” (387 Ill. 321, 345, 56 N.E.2d 388) is misplaced, as the court there found the resulting mark resembled a T which is a valid cross. Here, even if it could be said that the lines touch, they would form a V, which is not a cross. (Brents v. Smith (1911), 250 Ill. 521, 95 N.E. 484.) The ballot was properly not counted as a vote for Huber.

On ballot 19 — 1 the squares before Huber’s name and before the names of eleven other candidates are blackened rather than marked with an X. Huber contends that this should be considered a valid ballot as there are lines which intersect within the shading in the boxes. We, however, see no cross or intersecting lines in the square before Huber’s name. The voter did put a cross in the square opposite the name of presidential candidate Jimmy Carter at the top of the ballot, and this cross can be easily discerned. In an apparent change of voting style, the voter then used his pencil to blacken entirely that square and the squares before the 11 other candidates we have alluded to. In each of these latter squares, including that of candidate Huber, the necessary intersecting lines are obviously absent. We find this to be an invalid attempt to vote. As the supreme court stated when faced with a similar situation in Winn v. Blackman (1907), 229 Ill. 198, 220, 82 N.E. 215, 223, “[t]he voter either did not know how to vote, or did not try to vote. There is no attempt to comply with the law, and the ballot was properly rejected.”

Ballot 20 — 1 requires a factual determination as to whether the lines in the square before Reznick’s name cross. Although Huber argues that this ballot is identical with ballots 8 — 1 and 17 — 1, which were rejected by the trial court on the same question, we find that the trial court correctly determined that the lines cross and form a valid X. The lines intersect, if only slightly, and it was not error to count this ballot as a valid vote for Reznick.

On ballot 25- — 1 the voter apparently attempted to write in a candidate for judge of the Fourth Judicial Circuit, then scratched it out and marked a dark X in the square before the name of William D. Kelly, who was running unopposed for that office. Huber contends that these markings constitute distinguishing marks. We find, however, that the marks were made in a deliberate attempt by the voter to indicate his choice of candidates (see Barlick v. Kunz) and as such do not constitute distinguishing marks. The ballot, which contains a proper X in the square before Reznick’s name, was properly counted for Reznick.

Ballot 25 — 5 contains an X in the Republican party circle at the top of the ballot. No other circles or squares are marked except for an X in the square before the names of Ronald Reagan and George Bush, Republican candidates for president and vice-president, which the voter then scratched out with his pencil. We believe, contrary to Huber’s contention, that this mark indicates an attempt by the voter to indicate his choice of candidates and that the ballot was properly counted for Reznick.

On ballot 26 — 4 the voter placed an X in the square before the names of presidentical candidate Carter and vice-presidential candidate Móndale and then used his pencil to scratch out this mark. The voter also voted for the Democratic candidate for congressional representative. No other votes are cast for Democratic candidates. Moving to the Republican ticket, the voter made an X at the top of the ballot in the Republican party circle. The voter then placed X’s in the Republican column for the presidential and vice-presidential candidates, the three candidates for trustees of the University of Illinois, the candidates for congressional and state representative, and the candidates for the four county offices, including Reznick for State’s Attorney. The voter additionally placed X’s in the squares opposite the blank lines where names of candidates did not appear for offices of judge of the appellate court (vacancy of George Moran), judge of the Fourth Judicial Circuit (vacancy of Raymond Horn), and judge of the Fourth Judicial Circuit (vacancy of George Kelly). Huber argues that these extra markings and those in the Democratic column constitute distinguishing marks as they serve no function to carry out the intent of the voter. These marks, however, do not appear to have been made with an intent to distinguish the ballot but were rather the result of the voter’s mistake and his change of mind. (See Winn v. Blackman.) Thus, it was not error to count this ballot as a valid vote for Reznick.

Ballot 27A — 2 contains two X’s, both made with a red felt-tip pen, in the Republican party circle and in the square before the Republican candidates for president and vice-president. The crosses are properly made, and Huber’s only objection is that the use of the red marker makes this ballot distinguishable. It has been consistently held, however, that the use of a medium other than that supplied by the election officials does not, per se, render the ballot invalid. (Rexroth v. Schein (1903), 206 Ill. 80, 69 N.E. 240, Grubb v. Turner (1913), 259 Ill. 436, 102 N.E. 810; Greene v. Bjorseth.) In the cases cited by Huber, Isenburg v. Martin (1920), 293 Ill. 408, 127 N.E. 663, and Talbott v. Thompson (1932), 350 Ill. 86, 182 N.E. 784, ballots were held to be invalid not because of the colored pencils used but because of the irregular and unusual marks made with them. As we have noted, the crosses made by the voter here, despite their color, are quite ordinary and proper. These marks serve only to indicate the voter’s choice of candidates and not to identify or distinguish the ballot. The trial court did not err in holding this ballot valid as a vote for Reznick.

Ballot 27A — 7 contains an X in the Republican party circle at the top of the ballot as well as several heavy markings forming a cross in the square before the names of candidates Ronald Reagan and George Bush and a cross before the name of Dwight Friedrick, Republican candidate for State representative. Huber contends that the heavy X’s before the names of Reagan and Bush serve to distinguish this ballot. For the reasons already set forth in our discussion of ballot 9 — 12, we hold that this ballot was not invalid and was properly counted by the trial court as a vote for Reznick.

Ballot 28 — 2 similarly contains heavy X’s before the names of candidates Reagan and Bush, which Huber cites as distinguishing marks rendering the ballot invalid. We reject this contention for the reasons previously stated in our discussion of ballot 9 — 12. Although Huber contends further that the mark before Reznick’s name is a Y rather than a cross, we find that the two lines do in fact cross and that the ballot was thus properly counted as a vote for Reznick.

On ballot 28A — 3 the voter placed an X before the names of each of the Republican candidates and additionally marked the box before the blank space for judge of the Fourth Judicial Circuit (vacancy of George R. Kelly) but did not write a name in the blank. Huber contends that this extra marking serves no purpose other than to distinguish the ballot and thus should be held to invalidate the ballot. It appears that the voter inadvertently marked the space for. the write-in candidate in his attempt to vote for each of the Republican candidates individually. We find that this mark, which can be reasonably explained consistently with an honest purpose of the voter (see Winn v. Blackman), does not constitute a distinguishing mark. Although Huber further objects that the marking before Reznick’s name is a Y rather than a cross, we agree with the trial court that the lines intersect, forming a valid cross. This ballot was properly counted for Reznick.

Ballot 28A — 4 contains an X in the squares before the Democratic candidates for circuit clerk, state’s attorney, and coroner and a check mark following each of these names. These are the only three candidates voted for. The trial court held that the check marks following the names constitute distinguishing marks which render the ballot invalid. We agree. No explanation has been given as to how the marks were made on the ballot, and they appear to have been made by the voter himself. In such a case, the marks serve only to identify and distinguish the ballot. (See Brents v. Smith-, Greene v. Bjorseth; Barlick v. Kunz.) It was not error for the trial court to refuse to count this ballot for Huber.

Ballot 28A — 6 is objected to on the grounds that the voter’s write-in of “Hon. Raymond Horn” for judge of the Fourth Judicial Circuit (vacancy of Hon. Raymond O. Horn) makes this ballot unique and thus identifiable, as no other voter would be expected to write in the name of a deceased person. We note in passing that there is no way of knowing whether the voter knew that Raymond Horn, the late circuit judge of the Fourth District, was deceased, or that there was not another Raymond Horn in the Fourth Judicial Circuit. Moreover, it is not every distinctive mark which will render a ballot invalid but only those which appear to have been made in a deliberate attempt to identify the ballot and not through mistake or inadvertence. (Parker v. Orr.) The voter’s attempt to write in a name for circuit judge, although an obvious error to some, appears still to be the result of the voter’s mistake and confusion and not, as Huber contends, equivalent to the voter signing his own name to the ballot. (Cf. Parker v. Orr where the court held that the words “yes” and “get” written on a ballot tended to indicate the voter’s choice upon the proposition submitted while the name “Martin Lynch” written on another ballot could serve but one purpose, viz., to indicate who voted the ballot.) We believe the trial court correctly found this to be a valid vote for Reznick.

We need not discuss Huber’s contention that the court erred in holding ballot 29 — 1 to be a valid vote for Reznick. A review of the record shows that the court reconsidered its original ruling and found that the markings on the ballot constitute distinguishing marks which render the ballot invalid. The court thus did not count this ballot in making its final vote tally.

On ballot 30 — 4 the voter blocked out an X in the square before Huber’s name and wrote the words “Errorr [sic] No” beside it. The square before Reznick’s name contains a proper X. The trial court ruled that these words did not constitute distinguishing marks as the voter made an obvious attempt to change his vote. We agree. (See, e.g., Isenburg v. Martin, where the court held that the obliterating of a square and the writing of the word “wrong” did not constitute a distinguishing mark.) Huber’s argument that the court’s ruling on ballot 30 — 4 was inconsistent with its ruling on ballot 20 — 5, which involved a similar situation, is not well taken. The record reveals that the trial court reconsidered its original ruling that ballot 20 — 5 was invalid and found it to be a valid vote for Huber. The court correctly counted ballot 20 — 5 for Huber and ballot 30 — 4 for Reznick.

Huber additionally objects to the court’s ruling as to certain ballots which, although not designated as “spoiled” ballots (see Ill. Rev. Stat. 1979, ch. 46, par. 17 — 11), were placed in envelopes for spoiled ballots by the election judges and not counted. There were three ballots found in the spoiled envelope from precinct 2A and four in the spoiled envelope from precinct 21. The trial judge, after hearing testimony of election judges from these precincts, ruled that the presumption of correctness adhering to the election officials’ actions (see Rexroth v. Schein) had been overcome in the case of three of the ballots from precinct 21, but held that the ballots from precinct 2A were invalid as spoiled ballots. We have examined the record and find no basis for disturbing the trial court’s factual determination as to the validity of these ballots.

Anton Matzker, an election judge from precinct 21, testified that three ballots which should have been placed in the envelope for defective or objected-to ballots (see Ill. Rev. Stat. 1979, ch. 46, par. 17 — 16) were instead put into the envelope for spoiled ballots. This occurred after the polls were closed and the ballots were taken from the ballot box and sorted out. The fourth ballot found in the envelope was not a regular ballot but was on a constitution question and, unlike the other three, was marked “void.” We believe Matzker’s testimony is sufficient to establish that the three ballots in question, S — 21—1, S — 21—2, and S — 21—3, should have been considered as objected-to ballots rather than as spoiled ballots. (Cf. Griffin v. Rausa (1954), 2 Ill. 2d 421, 118 N.E.2d 249, where the evidence showed that “spoiled” ballots for which others had been reissued were properly rejected.) Huber does not challenge the court’s ruling on the merits of these three ballots, and we find that the court correctly counted ballots S — 21—1 and S — 21—2 for Reznick and rejected S — 21—3 as an invalid ballot.

As to the three ballots in the spoiled envelope from precinct 2A, election judge Thelma Harrison testified that one new ballot was requested by a voter while she was at the polling place and the ballot which was turned back in was placed in the spoiled ballot envelope. Mrs. Harrison stated that another ballot was taken from the general ballot box after the polls closed and placed in the spoiled ballot envelope because it had not been voted correctly. Mrs. Harrison stated that she was present at the polls the entire day except for a 30-minute lunch break and that she knew of no other ballots that were placed in the spoiled ballot envelope. Another election judge, Susie Pruitt, also testified that a ballot was taken out of the general ballot box and put into the spoiled ballot envelope after the polls closed but that she did not know if any other ballots were placed in the spoiled envelope.

We agree with the trial judge that this testimony is insufficient to overcome the presumption that there were three spoiled ballots in precinct 2A. Although two of the ballots have been ostensibly accounted for, these ballots have not been identified and there is no evidence showing that the third ballot was not properly placed in the spoiled ballot envelope after being exchanged for a new ballot. Huber has failed to sustain his burden of proof in this regard (see Rexroth v. Schein), and ballots S — 2A—1, S — 2A—2, and S — 2A—3 were properly rejected by the trial court as invalid.

Huber’s final contention of error regarding objected-to ballots concerns three absentee ballots, numbers 30 — 7, 30 — 8, and 30 — 9, which were challenged by the election judges and not opened or counted. The ballots were those of Donald and Inez Kimberlin and their daughter Deronda. The trial court, after hearing testimony from the voters and from two of the election judges in precinct 30, found that the voters did not meet the statutory requirement of residence in the precinct in which they voted so as to qualify as absentee voters (see Ill. Rev. Stat. 1979, ch. 46, pars. 3 — 1, 19 — 1) and ruled that their ballots were invalid. Huber argues on appeal that the ballots were not properly challenged because the election judges failed to designate them as “rejected” ballots and that therefore the court had no discretion to rule upon the question of the voters’ residence. We find, however, that the court properly ruled upon the residence question and that, in view of the evidence presented, it did not err in declaring the ballots to be invalid.

The statute governing the casting of absentee ballots (Ill. Rev. Stat. 1979, ch. 46, par. 19 — 9) provides in pertinent part that if the election judges casting the absent voters’ ballots at the close of the polls find “that the applicant is not a duly qualified elector in such precinct * * * such previously cast vote shall not be allowed, but without opening the absent voter’s envelope the judge of such election shall mark across the face thereof, ‘Rejected’, giving the reason therefor.” The unopened ballots are then to be retained and preserved just as other rejected ballots (Ill. Rev. Stat. 1979, ch. 46, par. 19 — 9), and notice of the challenge is to be given by mail addressed to the voter’s residence (Ill. Rev. Stat. 1979, ch. 46, par. 19 — 10). In the case at bar, election judge Debby Smith testified that when the Kimberlins’ absentee ballots were presented for casting, she challenged them on the grounds that “[the Kimberlins] no longer lived here and hadn’t lived here for at least six months.” The ballots were then set aside in the envelope for challenged ballots and taken to the county clerk’s office with the rest of the election supplies. Postcards were mailed to the Kimberlins at their Vandalia, Illinois, address in which they were notified that their ballots had been challenged. The election judges failed, however, to mark the ballots as “rejected” or to write the reason for the challenge on the ballots.

Huber contends that the failure to follow the statutory procedures in this regard precludes the court from inquiring into the absent voters’ qualifications to vote. He asserts that since the ballots appear to be valid on their face, they should have been opened and counted by the trial court. Huber, however, ignores the fact that these ballots were set aside in the envelope for “challenged” ballots and not counted by the election judges. The official tally sheet certified by the judges from precinct 30 showed three rejected unopened absentee ballots which showing raised a presumption that these ballots had been properly rejected. (See Tuthill v. Rendelman.) While Huber would have us treat the marking procedure as mandatory rather than merely directory (see Siedschlag v. May (1936), 363 Ill. 538, 2 N.E.2d 836), the decided cases indicate that the contrary is true. Cf. Griffin v. Rausa, where the court rejected the contention that the statute regarding the marking of ballots as “defective” or “objected-to” was mandatory and held that the election judges substantially complied with the statute despite their failure to designate certain ballots properly.

We likewise find no merit in Huber’s contention that because the county clerk was required to ascertain whether or not applicants for absentee ballots are lawfully entitled to vote before mailing them a ballot (see Ill. Rev. Stat. 1979, ch. 46, par. 19 — 4), it was not proper thereafter to challenge the voters’ qualifications. Section 19 — 10 provides that “the judges of the election or a majority thereof shall have power and authority to hear and determine the legality of such [absentee] ballot.” Election judge Debby Smith testified that she challenged the Kimberlins’ ballots and “everyone was in agreement with me.” We hold, therefore, that the election officials in this instance substantially complied with the statutory procedures for rejecting absentee ballots, thereby raising a presumption of the validity of their challenge.

In an attempt to overcome this presumption, Huber presented the testimony of Donald and Inez Kimberlin who had moved with their daughter to Coleville, Missouri, in April 1980 and were living there at the time of the hearing in January 1981. It was from Coleville that their absentee ballots in the November 1980 election were executed. Inez Kimberlin testified that they had not actually moved to Coleville as they “lived on wheels.” Donald Kimberlin, in a voluntary statement conditionally allowed by the court, said that he owned land in Vandalia, that he was semi-retired and that although he and his family live in a camping trailer and move from place to place, they wanted to make Vandalia their permanent address and vote there because they know the people in the area. Kimberlin added: “[W]e may pull out of Coleville [tomorrow]. # ” We may be in, go to Arizona or Florida.” The court struck this testimony as improper but found that even considering the Kimberlins’ declared intent, there was insufficient evidence to establish their residence in Vandalia for purposes of voting. We agree.

Under section 3 — 2 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 3 — 2) “[a] permanent abode is necessary to constitute a residence [for voting purposes].” As such, a person’s “residence” is his or her principal dwelling place, and the term denotes a permanency of some measure. “Two elements are necessary to create a residence: (1) a physical presence in that place and (2) the intention of remaining there as a permanent home.” (Stein v. County Board (1967), 85 Ill. App. 2d 251, 256, 229 N.E.2d 165,168.) Unlike a “domicile,” which one has continually from the moment of birth, a person need not at all times have a permanent abode or “residence.” What constitutes a residence is a question of fact and, although declarations of a person’s intent are admissible as evidence thereof, the determination must depend upon the surrounding facts and circumstances. Stein v. County Board of School Trustees.

In the instant case, Huber failed to produce facts to indicate that the Kimberlins had established Vandalia as their permanent home or that, if such had been established, they had not abandoned it by their absence therefrom. No information was elicited as to how long the Kimberlins had lived in Vandalia or the nature of their activities there. The ownership of property in an election district, without more, is not sufficient to qualify one as a voter in that district. (Clark v. Quick (1941), 377 Ill. 424, 36 N.E.2d 563.) Further, there is no evidence, other than the fact that the Kimberlins sent in absentee ballots, to indicate that they were registered to vote in precinct 30. (See Tuthill v. Rendelman.) While Donald Kim-be^lin stated that he and his family wanted to make Vandalia their permanent address for voting purposes, such an intent is only one aspect of residence and is belied by their physical absence from Vandalia and their lack of intent to return. We believe the trial court correctly ruled that the evidence was insufficient to overcome the presumption of invalidity of the Kimberlins’ votes and that it was proper not to open and count ballots 30 — 7, 30 — 8 and 30 — 9.

Having affirmed the court’s rulings on these various objected-to ballots, we must consider whether the court’s actions in settling the resulting tie were proper. Huber contends preliminarily that the court erred in refusing to grant a continuance the parties requested pending a determination of the matter by lot. The decision to grant or deny a motion for continuance is within the sound discretion of the court (Ill. Rev. Stat. 1979, ch. 110, par. 59) and will not be disturbed on appeal unless there has been a manifest abuse of such discretion. (Waltz v. Schlattman (1980), 81 Ill. App. 3d 971, 401 N.E.2d 994.) Once trial or hearing begins, a continuance should be granted only where a “sufficient excuse is shown for the delay.” (Ill. Rev. Stat. 1979, ch. 110A, par. 231(f).) Here, counsel requested a continuance to allow time for the parties to settle the issues of the case only after hearings had been held on January 30, 1981, and February 7, 1981, and the court had made its final ruing on February 18, 1981. The record reveals no reason why the parties needed additional time to reach a settlement of the case, and we believe the court was justified in refusing to grant the continuance.

Huber contends finally that the court erred in choosing a coin flip as the method of determining the winner of the tie vote by lot. Section 23 — 27 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 23 — 27) provides:

“If it appears that two or more persons have, or would have had if the legal ballots cast or intended to be cast for them had been counted, the highest and an equal number of votes for the same office, the persons receiving such votes shall decide by lot, in such manner as the court shall direct, which of them shall be declared duly elected * * *."

The statute does not specify the precise method to be used in determining the winner of a tie vote but merely directs that it be “by lot.” The word “lot,” as used in this provision, “signifies the existence of the element of chance, and in this sense is defined as a contrivance to determine a question by chance or without the action of a man’s choice or will * * *.”54 C.J.S. Lotteries sec. 30, (1948).

In the instant cause, there is every indication that the coin flip by the circuit clerk, however ineptly made, was still a decision made by chance. The trial judge described the process thus: “I gave the clerk a quarter from my pocket, a 25 cent piece, she flipped the coin and while the coin was in the process of leaving her hand and going into the air flipping, Mr. Reznick called heads. The coin came down, she completed the flip, showed me the coin and it was heads.” For all that appears of record, the decision was the result of chance or lot and could just as easily have gone the other way. We hold, therefore, that the method selected by the trial court for determination by lot was as authorized by statute and that the court did not err in entering judgment for Reznick.

Judgment affirmed.

KARNS, P. J., and KASSERMAN, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    EUGENE PIETKA, Plaintiff-Appellee and Cross-Appellant, v. CHELCO CORPORATION, Defendant-Appellant and Cross-Appellee.—(BUILDING MANAGEMENT CORPORATION, Defendant-Cross-Appellee.)
    First District (5th Division)
    No. 81-584
    Opinion filed June 18, 1982.

      James J. Flynn and Corinne Chandler, both of Quinn, Jacobs & Barry, of Chicago, for appellant.
    Robin J. Omahana, of Coffield, Ungaretti, Harris & Slavin, of Chicago, for appellee.
    No brief filed for cross-appellee.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Defendant Cheleo Corporation (Cheleo) appeals from a judgment entered on a verdict for plaintiff in his action to recover a real estate broker’s commission allegedly for obtaining a tenant for Chelco’s property. The issues presented are that (1) the verdict was against the manifest weight of the evidence; (2) the jury was improperly instructed as to (a) plaintiff’s burden of proof in establishing his authority and (b) the definition of procuring cause; and (3) the trial court erred in permitting plaintiff to impeach his own witness on the issue of procuring cause. In a cross-appeal, plaintiff contends that the trial court erred (1) in denying leave to amend his complaint by adding a claim for a monthly management commission allegedly owed under his employment contract; and (2) in denying him prejudgment interest.

Plaintiff’s original complaint alleged in substance that he was a licensed real estate broker associated with defendant Building Management Corporation (Building Management), which acted as agent of Cheleo, and that he secured the Walter Frank Organization, Inc. (Walter Frank), as the tenant for Chelco’s property located at 3201 West Randolph, Bellwood, Illinois (the building) — for which he was entitled to a commission. The record also indicates that Building Management is a real estate management corporation and that Cheleo is a real estate holding company having title to several buildings.

Plaintiff testified that in October 1973 he was hired by Richard M. Ryan, then president of Building Management, and Wallace E. Carroll to administer and manage Building Management property — which included finding tenants and buyers; that he was initially paid a salary, but upon becoming president of Building Management and during his tenure in that post, he was also to be paid a percentage from rentals and sales; that Carroll authorized him to find a tenant for 50,000 square feet of available space in the building; that with Carroll’s authorization in January 1974, he placed a sign on the building with his name and telephone number, which replaced another sign showing Building Management and Ryan’s name and telephone number; that he placed an advertisement in the Sunday Chicago Tribune, distributed circulars, and made several personal contacts, and in January 1974 obtained a tenant named Stratton Hats for a portion of the building — for which he was paid a commission; that on July 23, 1974, he received a telephone message from Joyce Lowry, his secretary, concerning an inquiry about the building from Edward McGrath of Walter Frank, and he set up an appointment with McGrath to view the property on July 26; that on that date he gave McGrath and John Cranfill — Walter Frank’s director of manufacturing — a tour of the property, during which McGrath indicated that Walter Frank would require an additional 25,000 square feet; that he gave McGrath a set of floor plans for the building and, after the tour, wrote a letter to McGrath and Cranfill containing information on the property and enclosing a circular concerning the building; that after confirming with Carroll and Morrow Garrison that additional space was available, he told McGrath that 75,000 square feet was rentable and thereafter made several other follow-up telephone calls; that he met with McGrath at Walter Frank’s facility less than two weeks later to determine the feasibility of Walter Frank’s renting the space in the building and confirmed McGrath’s continued interest; that approximately three weeks after this final contact with McGrath, plaintiff was terminated by Building Management; and that, subsequently, upon learning a lease had been signed between Walter Frank and Cheleo, he wrote a letter to Ryan, dated February 24, 1975, claiming a commission for procuring that lease.

Joyce Lowry testified that on July 24, 1974, she was in the employ of Building Management when McGrath called concerning the property and asked for plaintiff; that since plaintiff was not in, she described the building and took a message for him; that she referred McGrath to George Holz, who was not employed by Cheleo, for a tour of the building — all of which actions plaintiff had authorized; and that she gave plaintiff the message upon his return.

Edward McGrath testified that in 1974, while employed by Walter Frank, it was his sole responsibility to find a new location for that organization, and he first learned about the property in question during the spring of 1974 when he saw a sign on the building with Ryan’s name and telephone number on it, which he then called and asked for Ryan; that he did not see the Tribune advertisement nor did he recall telling an investigator in 1976 that he first heard about the building through the advertisement; that he was shown the building twice before contacting Ryan— the first time by Holz, who gave him no documents; that he met Holz 3 to 4 months before he met plaintiff; that 3 or 4 months later, he again contacted Building Management about the building, and a woman made arrangements for plaintiff to give McGrath a tour; that plaintiff picked him up, showed him the building, and sent him a confirming letter dated July 26, 1974; that plaintiff gave him no blueprints of the building and never informed him that an additional 25,000 square foot area was available; that several months later, he again called Building Management and asked for plaintiff but, upon being informed plaintiff was no longer with Building Management, he was transferred to Ryan.

Morrow Garrison testified that he did not recall when the sign in question was placed on the building or taken down, nor did he know what address and phone number were on the sign; that he had not seen the sign, but when Holz told him about it in the summer of 1974, he (Garrison) ordered plaintiff to remove it because it was unauthorized; that when it was removed, he saw Ryan’s sign underneath; that Ryan took McGrath on a third tour of the building during which Ryan called Garrison, who told Ryan that an additional 25,000 square foot area was available for leasing; that plaintiff never discussed with him the leasing of the property to Walter Frank nor had he (Garrison) received a copy of the July 26, 1974, confirming letter; that he generally discussed the availability and negotiability of space in the building but denied talking to plaintiff about leasing 75,000 square feet to Walter Frank; that plaintiff had indicated to him the possibility of obtaining a tenant for the building but declined to tell him who it was; that the lease negotiations with Walter Frank commenced in September or October of 1974, and the lease was signed December 17 or 18, 1974; that in negotiating the lease, he conferred with Thomas Carroll — president of Cheleo — and Wallace Carroll concerning its terms; and that final approval of the lease provisions was made by Thomas Carroll.

Wallace Carroll testified that he gave no authority to plaintiff to put up a sign or to find a tenant for the building and that he made no promise to pay plaintiff a commission for finding a tenant or to pay him a percentage of rents on various properties.

The jury rendered a verdict against Cheleo for $22,038.01, upon which judgment was entered and this appeal followed.

At the commencement of trial, the trial court had denied plaintiff leave to amend his complaint to add a count (count II), asserting a claim for recovery of a monthly management commission. The court did, however, allow plaintiff to amend his complaint to allege an oral contract of employment between the parties and the terms and conditions thereof, but the prayer for relief was limited to recovery of the brokerage commission alleged in count I. The trial court denied the post-trial motion of plaintiff for prejudgment interest, and plaintiff has cross-appealed from the orders denying motions for leave to amend (count II) and for prejudgment interest.

Opinion

Defendant first contends the jury’s finding that plaintiff was the procuring cause of the lease between Cheleo and Walter Frank was against the manifest weight of the evidence.

In general, a broker is entitled to a commission if he is the procuring cause of a consummated transaction which he was employed to negotiate (Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App. 3d 480, 408 N.E.2d 1069), and a broker may be deemed the procuring cause if he brings together the parties who ultimately consummate the transaction (Chiagouris v. Continental Trailways (1964), 50 Ill. App. 2d 196, 200 N.E.2d 399) or if he is instrumental in its consummation (Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc., 87 Ill. App. 3d 480, 485, 408 N.E.2d 1069, 1074; Van C. Argiris Co. v. Caine Steel Co. (1974), 20 Ill. App. 3d 315, 314 N.E.2d 361; Doss v. Kirk (1956), 8 Ill. App. 2d 536, 132 N.E.2d 49). Various means have been recognized as constituting a bringing together of the parties. See, e.g., Cowan v. Day (1910), 156 Ill. App. 105 (evidence that at request of broker, a third party informed ultimate purchaser that property was for sale, so that broker neither communicated with purchaser nor showed her the property); Adams v. Decker (1889), 34 Ill. App. 17 (broker merely sent to principal the party who ultimately purchased the property).

Conversely, a broker also may become the procuring cause on the basis of the negotiations he conducts, even though he does not take part in bringing the parties together initially. (See Burns v. Sullivan (1915), 192 Ill. App. 127 (abstract) (holding that negotiations carried on by second broker brought about sale, making second broker the procuring cause and not plaintiff who had originally brought parties together and introduced purchaser to seller but who were unable to come to terms until second broker re-opened negotiations).) Moreover, a real estate broker may be the procuring cause where the transaction is effectuated through information which he disseminates (Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App. 3d 480, 485, 408 N.E.2d 1069, 1074; Doss v. Kirk (1956), 8 Ill. App. 2d 536, 540-41, 132 N.E.2d 49, 51), although it has been noted that in such cases, the broker actually may do more than supply information (Note, Real Estate Brokers: The Procuring Cause, 41 Chi.-Kent L. Rev. 58, 63 (1964)). Furthermore, a broker may be deemed the procuring cause of the transaction even though he did not personally introduce the parties to each other (Rigdon v. More (1907), 226 Ill. 382, 80 N.E. 901; Chiagouris v. Continental Trailways (1964), 50 Ill. App. 2d 196, 198, 200 N.E.2d 399, 401), or accompany a customer to a meeting with the principal (Chicago Title & Trust Co. v. Guild (1946), 329 Ill. App. 374, 68 N.E.2d 615), or if others participated in the negotiations (see Cole v. Brundage (1976), 36 Ill. App. 3d 782, 344 N.E.2d 583; Woolf v. Hamburger (1916), 201 Ill. App. 612 (abstract), or the transaction was concluded without his presence or knowledge (Hafner v. Herron (1896), 165 Ill. 242, 46 N.E. 211; Day v. Porter (1896), 161 Ill. 235, 43 N.E. 1073; Martin v. Equitable Life Assurance Society of the United States (1944), 323 Ill. App. 69, 54 N.E.2d 899 (abstract); Vancil v. Walter (1944), 323 Ill. App. 291, 55 N.E.2d 305 (abstract)). The foregoing rules reflect a policy of the law to protect a broker employed or authorized to act and who, in good faith, has so acted on behalf of his principal. Arthur Rubloff i? Co. v. Comeo Corp. (1978), 63 Ill. App. 3d 362, 380 N.E.2d 15.

In light of the above principles and of the record before us, we conclude that the jury’s finding that plaintiff was the procuring cause of the Walter Frank lease was not against the manifest weight of the evidence.

The first significant action of plaintiff in the chronology leading to the signing of the lease in question was his placement of an advertisement for the building in the Sunday Chicago Tribune Industrial Real Estate section in 1974. In our view, the jury could have found that the advertisement facilitated McGrath’s contact with Cheleo. Although McGrath testified at trial that his first contact with Cheleo was through the sign on the building, a statement he previously had given to an investigator that he first learned about the building through an advertisement in the Tribune was admitted in evidence. Moreover, because McGrath’s sole function as an employee of Walter Frank was to find a new location for its manufacturing plant, the jury could reasonably have inferred that McGrath saw the advertisement even though it may not have been his initial contact.

Plaintiff’s second crucial action was his placement of a sign on the building in January 1974. The significance of such action is apparent, inasmuch as McGrath testified that his first contact with Building Management was from the sign. Plaintiff testified that he installed his sign and removed the sign containing Ryan’s name and telephone number. That testimony was corroborated somewhat by the evidence that Ruilding Management had recently moved, which made the address and telephone number on the old sign incorrect. McGrath testified, on the other hand, that he first learned about the sign in the spring of 1974; that it contained Ryan’s name and telephone number; and that when he called the number on the sign, a woman answered and referred him to Holz. Other testimony indicated, however, that the phone was answered by Joyce Lowry, plaintiff’s secretary, who testified that the call was for plaintiff and because he was not there that she referred McGrath to Holz.

In contrast to the above testimony concerning the sign was that of George Holz. He expressed the belief that plaintiff’s sign was in place for 4 to 6 weeks. This was based on his recollection of first noticing it in July and of seeing the Ryan sign when he showed the building to McGrath. Moreover, Garrison testified that he had no first-hand knowledge as to when the sign was put up or taken down; but he did know that when it was removed, Ryan’s sign was underneath. Garrison’s testimony regarding the sign thus conflicted with that of Holz, who testified that both plaintiff’s and Ryan’s signs were visible simultaneously. Thus, the jury could have reasonably inferred that the Ryan sign, with Ruilding Management’s old address and telephone number on it, was not on the building in January 1974 or that it was completely obscured by plaintiff’s.

Additionally, it appears that the jury could have concluded that plaintiff’s sign was authorized. Although Garrison testified that he had not authorized plaintiff to place the sign on the building, Wallace Carroll could not recall having any such discussion with plaintiff and thus did not specifically contradict plaintiff’s position. Plaintiff testified that Carroll had told him on three occasions to put up a sign, and there was no dispute that either Carroll or Garrison had the authority to order plaintiff to do so. On those facts, the jury was warranted in believing that plaintiff installed the sign which attracted McGrath’s attention.

The third significant event was McGrath’s July 23 telephone call. Lowry stated that McGrath asked for plaintiff, not Ryan, and that she described the building and referred McGrath to Holz since plaintiff was out of town. Although McGrath testified that he met Holz in the spring of 1974 — some 3 to 4 months before meeting plaintiff — Holz stated that he showed the property to McGrath in the late spring or early summer, and the record indicates that Garrison said Holz told him that he showed the building on June 10 or 15. In any event, despite the differences between the parties’ account of the events, it seems clear that the Holz tour of July 23, as authorized by plaintiff, was a significant factor in the procurement of the lease.

Furthermore, the jury also could have found that the Holz tour does not support Chelco’s claim of being the procuring cause. McGrath testified that Holz gave him no documents, and he could not recall if Holz gave him rental information. He also stated that Holz told him 75,000 square feet — the space McGrath sought — was not available. Holz testified that he had been told to refer inquiries to Cheleo, which he did by telling McGrath to contact Garrison. Moreover, the record indicates that McGrath contacted plaintiff for a second tour of the building, and there is no indication of any contact between McGrath and Garrison in this regard.

Plaintiff’s other activities concerning the building are also important on the question of procuring cause. On July 23, plaintiff called McGrath to arrange an appointment for July 26 to tour the building and to discuss a lease. Thereafter, plaintiff picked up McGrath and Cranfill at Walter Frank’s offices and conducted them on a one-hour tour during which he answered questions concerning various aspects of the building, including rental and sales information. He also told them he would confirm the availability of the additional 25,000 square feet they needed and that, at the conclusion of the tour, he gave them a set of floor plans. Later, plaintiff confirmed the tour by sending them a letter, the receipt of which was admitted by McGrath, in which was enclosed additional information on the building. It appears that plaintiff pursued the lease further by calling Carroll and Garrison to verify that 75,000 square feet could be made available, and neither denied this call. Plaintiff also testified that on the same day he called and gave McGrath this information and that he made other follow-up telephone calls to McGrath even after he was terminated by Building Management. Finally, it is significant that plaintiff testified to visiting McGrath and Cranfill at Walter Frank’s plant and office in early August to observe the layout of the manufacturing operation and to help McGrath determine how Walter Frank’s equipment could fit into Chelco’s facility.

Among the events following July 23, it appears that the next time McGrath called Building Management, he asked for plaintiff, who by then had been terminated. This fact could reasonably have suggested to the jury that McGrath desired further negotiations and that he believed such negotiations were to be conducted through plaintiff. Such inference is reinforced by the evidence that prior thereto, Garrison did not contact McGrath after Holz informed him (Garrison) of giving McGrath a tour of the building. (Cf. O’Leary v. Crow (1978), 60 Ill. App. 3d 135, 376 N.E.2d 392 (where the sale was consummated through the efforts of a second broker in an independent solicitation); Modern Tackle Co. v. Bradley Industries, Inc. (1973), 11 Ill. App. 3d 502, 297 N.E.2d 688 (where sale of business was procured through efforts of second broker after plaintiff failed to interest purchaser who declined offer of sale).) Thus, even if the negotiations that ultimately led to the lease did not begin until after the third tour, plaintiff had already taken the necessary preliminary steps that made those negotiations possible at that time, and there is no indication of an independent solicitation or a rejection of Chelco’s terms following the tour by plaintiff. Moreover, it has been held that, as here, where the agreement provides that if the broker produces a customer with whom a transaction is subsequently completed the broker shall be paid a commission. Rigdon v. More (1907), 226 Ill. 382, 80 N.E. 901.

While the record reveals extensive conflict in the testimony, we are of the view that it is supportive of plaintiff’s position that he brought the parties together and was instrumental in the consummation of the transaction. Resolution of contradictory testimony is not a function of the reviewing court, which cannot reevaluate the evidence and set aside a jury verdict merely because it could have reached a different conclusion (Ryon v. Javior (1979), 69 Ill. App. 3d 946, 387 N.E.2d 936; Brown v. Johnson (1978), 60 Ill. App. 3d 76, 378 N.E.2d 757), even if there is conflicting evidence on factual questions which is of substantially equal weight (Bentley v. City of Chicago (1979), 79 Ill. App. 3d 1028, 398 N.E.2d 912). That task rests instead with the jury, which evaluates the weight of the evidence and assesses the credibility of witnesses, and its findings will not be disturbed unless the verdict was palpably erroneous (Russo v. Checker Taxi Co., Inc. (1978), 67 Ill. App. 3d 379, 385 N.E.2d 33) or the opposite verdict is clearly compelled or the findings appear to be unreasonable, arbitrary, and not based on the evidence (Duffek v. Vanderhei (1980), 81 Ill. App. 3d 1078, 401 N.E.2d 1145). The evidence before us does not suggest that the jury’s findings were unreasonable or that the verdict was palpably erroneous and compelled the opposite result, and we therefore hold that the verdict was not contrary to the manifest weight of the evidence.

Cheleo next contends that plaintiff’s instructions Nos. 9 and 11 improperly implied that prior authority to offer space for lease in the building, if proved, governed the determination of plaintiff’s authority with respect to the Walter Frank lease. Instruction No. 9 on plaintiff’s burden of proof (Illinois Pattern Jury Instruction, Civil, No. 21.02 (2d ed. 1971) (modified) (IPI)) in pertinent part required plaintiff to prove:

“Second, that the plaintiff had an agreement with defendant Cheleo Corporation to procure tenants for said building;
Third, that the plaintiff was the procuring cause of the lease of said building to the Walter Frank Organization, dated December 18, 1974.” (Emphasis added.)

Plaintiff’s instruction No. 11 (non-IPI) stated, in pertinent part:

“Plaintiff is not required to demonstrate any particular form of agreement with the defendant for the leasing of the building.” (Emphasis added.)

Cheleo here asserts that use of the words “said building” in No. 9 and “Building” in No. 11, rather than the phrase “available space” foreclosed the jury from considering Chelco’s position that plaintiff lacked authority to secure a tenant for the space leased to Walter Frank and that a narrower instruction should have been given which referred only to the space actually leased by Walter Frank. The effect of those instructions, according to Cheleo, assumed plaintiff had broader authority and unduly emphasized the Stratton Hats lease which plaintiff had previously obtained. We find no merit to this contention.

In general, the criterion for determining the adequacy of jury instructions is whether, taken as a whole and in series, they fairly, fully, and comprehensively apprised the jury as to applicable legal principles (Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 419 N.E.2d 578), and a jury instruction should not assume as true any version of disputed facts which the jury should be expected to resolve (Pioneer Hi-Bred Corn Co. of Illinois v. Northern Illinois Gas Co. (1975), 61 Ill. 2d 6, 329 N.E.2d 228). In this regard, one of the elements plaintiff was required to prove was that he was authorized to find tenants for Cheleo in his capacity as a broker. (See Horan v. Blowitz (1958), 13 Ill. 2d 126, 148 N.E.2d 445; El Reno Wholesale Grocery Co. v. Stocking (1920), 293 Ill. 494, 127 N.E. 642.) We believe, however, that by instructing the jury that plaintiff was to prove he had authority to find a tenant for “said building,” the trial court necessarily informed them that plaintiff had to demonstrate his authority to find a tenant for the “available space” within the building. Thus, rather than precluding consideration of defendant’s position, the instructions in question encompassed it. Instructions Nos. 9 and 11 did not, therefore, assume as true any disputed version of facts but left such determination to the jury.

Furthermore, concerning Chelco’s reference to the Stratton Hats lease, we do not think the challenged instructions permitted the jury to conclude that since plaintiff was authorized to secure the Stratton Hats lease, he was also authorized to obtain the Walter Frank lease. Neither does the record indicate that plaintiff had authority to obtain the Stratton Hats lease but lacked authority to procure other tenants. The potential for such errors was, in our view, eliminated by the specific reference to the lease given to Walter Frank. By that reference, the jury was instructed to determine whether plaintiff was authorized to find a tenant for the space which Walter Frank leased. Moreover, contrary to Chelco’s contention, the giving of instruction No. 11 was consistent with the law of this State which provides that a broker’s authority may be implied from the conduct of the principal. (Cole v. Brundage (1976), 36 Ill. App. 3d 782, 344 N.E.2d 583; Van C. Argiris Co. v. Caine Steel Co. (1974), 20 Ill. App. 3d 315, 314 N.E.2d 361.) Although the jury must not be instructed in a confusing or misleading manner (Silverman v. General Motors Corp. (1981), 99 Ill. App. 3d 593, 425 N.E.2d 1099), a common sense view of the challenged instructions does not suggest that the jury was confused or misled or that it was not comprehensibly informed on the issue of plaintiff’s authority. We conclude, therefore, that there is no merit in Cheleo’s contention that plaintiff’s instructions Nos. 9 and 11 were improperly given.

Cheleo further maintains that plaintiff’s instructions Nos. 12 and 12F repetitively instructed the jury as to what was not required in order to establish procuring cause and thereby afforded the jury no guidance in determining if plaintiff was the procuring cause of the instant lease. Instructions Nos. 12 and 12F (non-IPI) provided:

“In order for the plaintiff to be regarded as the procuring cause of the lease of the [building], the plaintiff must show that he was instrumental in bringing the parties together. It is not necessary for the plaintiff to have personally introduced the tenant to the defendant. It is sufficient if the lease was effected through the efforts of the plaintiff, or through information derived from him.
It is not necessary for the plaintiff to have been physically present at the closing of the lease in order for the plaintiff to be regarded as the procuring cause of the lease.”

Inasmuch as those instructions accurately stated relevant principles of law, as discussed above, and are supported by evidence in the record (see Figarelli v. Ihde (1976), 39 Ill. App. 3d 1023, 351 N.E.2d 624; Biggerstaff v. New York, Chicago & St. Louis R.R. Co. (1957), 13 Ill. App. 2d 85, 141 N.E.2d 72), they gave the jury adequate guidance on the question of procuring cause. We conclude, therefore, that the trial court did not err in giving them.

Finally, Cheleo contends that the trial court erred in permitting plaintiff to impeach his own testimony on direct examination. It is sufficient to note that we have examined the record relative to this point and find that if any error was committed, it was not prejudicial.

We next consider plaintiff’s contention in his cross-appeal that the trial court erred in denying leave to amend his complaint by adding a count (count II). In this regard, section 46(1) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 46(1)) provides in relevant part:

“At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, discontinuing as to any plaintiff or defendant, changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross demand.”

Although a party has no absolute right to amend pleadings (Whildin v. Kovacs (1980), 82 Ill. App. 3d 1015, 403 N.E.2d 694), section 46(1) is to be liberally applied to permit resolution of cases on their merits rather than on procedural technicalities (Bloom v. Landy (1979), 72 Ill. App. 3d 383, 389 N.E.2d 1286) and to enable a party to fully present his case (Banks v. United Insurance Co. of America (1975), 28 Ill. App. 3d 60, 328 N.E.2d 167). Motions to amend the pleadings are addressed to the sound discretion of the trial court (First National Bank & Trust Co. v. Sousanes (1978), 66 Ill. App. 3d 394, 384 N.E.2d 30), and the test for determining if such discretion was properly exercised is whether allowance of the amendment furthers the ends of justice (Wallace v. Weinrich (1980), 87 Ill. App. 3d 868, 409 N.E.2d 336; Economy Fire & Casualty Co. v. Pearce (1979), 79 Ill. App. 3d 559, 399 N.E.2d 151).

Furthermore, while an amendment should not ordinarily be permitted if it sets forth matters of which the pleader had full knowledge at the time of filing the original pleading and no excuse is offered for not putting the substance of the amendment therein (Mayfair Construction Co. v. Security Insurance Co. (1977), 51 Ill. App. 3d 588, 366 N.E.2d 1020; Mundt v. Ragnar Benson, Inc. (1974), 18 Ill. App. 3d 758, 310 N.E.2d 633), such amendment will be allowed if justice is not served by denying leave to amend, all doubts being resolved in favor of allowing amendments (Lawson v. Hill (1979), 77 Ill. App. 3d 835, 396 N.E.2d 617). It is equally well established, however, that courts should not permit the amendment of pleadings if the other party would be prejudiced (Mentesana v. La Franco (1979), 73 Ill. App. 3d 204, 391 N.E.2d 416) or surprised thereby (First National Bank & Trust Co. v. Sousanes (1978), 66 Ill. App. 3d 394, 396, 384 N.E.2d 30, 31).

In the case before us, plaintiff filed his original complaint in September 1975 to recover a brokerage commission allegedly due him from Building Management and Cheleo, and the record indicates that at an evidence deposition taken in May 1976, plaintiff stated that under his oral contract with defendants he was to be paid a salary, brokerage fees, and — upon becoming president of Building Management — a monthly management commission, and it was indicated in the deposition that he became president in January 1974.

Thereafter, on May 15, 1980, plaintiff moved for leave to amend the original complaint to add a claim for recovery of the monthly management commission. No action was taken on that motion until the case was assigned to trial, at which time it was denied by the trial judge.

It is our belief that the trial court should have allowed the amendment. The proof concerning the claim for such commission could apparently have been presented without delaying the case, and it is apparent that the management commission was one of the alleged terms of employment in the oral contract, so that the evidence presented by Cheleo to refute the brokerage commission claim would have been essentially the same as that presented against the claim for the management commission. (See United Air Lines, Inc. v. Conductron Corp. (1979), 69 Ill. App. 3d 847, 387 N.E.2d 1272; cf. Able v. Pure Oil Co. (1972), 8 Ill. App. 3d 558, 290 N.E.2d 331 (trial court did not abuse discretion in denying leave to amend complaint where amendments were substantially included within issues already framed by pleadings).) Thus, Cheleo would not have been prejudiced by the proposed amendment, nor would it have materially altered the nature and quality of the proof required to defend. (See Blazina v. Blazina (1976), 42 Ill. App. 3d 159, 356 N.E.2d 164.) Moreover, Cheleo cannot claim surprise since the motion was presented about three weeks before the case was assigned to a trial judge. (See Servbest Foods, Inc. v. Emessee Industries, Inc. (1980), 82 Ill. App. 3d 662, 403 N.E.2d 1.) Although plaintiff had full knowledge of the matters set forth in the amendment and offered no excuse for failing to include the substance of the amendment in the original pleading, in view of the record before us we believe that justice was not served in denying leave to amend and that the trial court abused its discretion in so doing. We therefore reverse the order denying leave to amend, and this cause will be remanded for further proceedings in that regard.

Finally, we consider plaintiff’s other contention on cross-appeal, that the trial court erred in denying him prejudgment interest, to which he argues entitlement under the provisions of section 2 of the Interest Act which allows prejudgment interest to creditors at the rate of 5 percent per year “on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance * * * and on money withheld by an unreasonable and vexatious delay of payment.” (Ill. Rev. Stat. 1979, ch. 74, par. 2.) We find this contention to be without merit.

We need not determine whether the amount of interest due is capable of ascertainment, since we think it clear from the record before us that money was not withheld by Cheleo because of an unreasonable and vexatious delay of payment. Neither an honest dispute regarding the existence of a legal obligation nor the defense of a lawsuit can be regarded as unreasonable and vexatious delays of payment. (Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App. 3d 480, 408 N.E.2d 1069; Hamilton v. American Gage & Machine Corp. (1976), 35 Ill. App. 3d 845, 342 N.E.2d 758; Santucci Construction Co. v. County of Cook (1974), 21 Ill. App. 3d 527, 315 N.E.2d 565.) Rather, the claimant must show that his opponent has thrown obstacles in the way of collection or has otherwise induced the creditor to delay collection proceedings (Kespohl v. Northern Trust Co. (1970), 131 Ill. App. 2d 188, 266 N.E.2d 371) or such claimant must establish conduct on the part of his opponent which is tantamount to fraud (Hamilton v. American Gage & Machine Corp.). Here, it is apparent that no action of Cheleo, other than the defense of this suit, occasioned the delay in payment. Decisions concerning the award of prejudgment interest are questions of fact, and their determination will not be disturbed on review unless contrary to the manifest weight of the evidence. (Hamilton v. American Gage ir Machine Corp.) Consistent with that standard, we cannot say the trial court’s finding was incorrect.

For the reasons stated, the judgment entered on the verdict for plaintiff is affirmed; the order denying prejudgment interest to plaintiff is affirmed; the order denying plaintiff leave to amend his complaint is reversed and this cause is remanded for further proceedings in that regard.

Affirmed in part, reversed in part and remanded with instructions.

LORENZ and WILSON, JJ., concur.

       Building Management was dismissed from this action by directed verdict at the close of plaintiff’s case.

       Although plaintiff declined to disclose to Garrison the identity of Walter Frank as the potential tenant, that fact has no bearing on the question of procuring cause, inasmuch as the contacts between the parties were still at the preliminary negotiation stage.


author: JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PATRICK FAUSZ, Defendant-Appellant.
    Fifth District
    No. 81-211
    Opinion filed May 26, 1982.

      Marvin W. Goldenhersh, of Goldenhersh and Goldenhersh, of Belleville, for appellant.
    Alan E. Stumpf, State’s Attorney, of Waterloo (Martin N. Ashley and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KASSERMAN

delivered the opinion of the court;

The defendant, Patrick Fausz, was charged by information with the murder of Michael Lux and the attempted murder of James D. Weber. A jury found the defendant not guilty of the offenses of murder, attempted murder, and involuntary manslaughter but convicted him of the offense of voluntary manslaughter. The trial court entered a judgment of guilty of voluntary manslaughter and sentenced defendant to imprisonment for a term of three years.

On appeal the defendant raises three issues: (1) whether the defendant was properly convicted of voluntary manslaughter; (2) whether the defendant was prejudiced by the presence of the decedent’s family and friends during trial; and (3) whether the defendant’s sentence was an abuse of discretion.

On September 3,1980, Mr. Lux, Mr. Weber and Rodney Godier were out drinking together. At approximately 10:30 p.m. they arrived at a tavern owned and operated by defendant in Boxtown, Illinois. While at this establishment, they overheard the defendant tell Joe Benton that he was placing the two bottles of whiskey he owed him inside his pickup truck. The three companions “teased” the defendant, suggesting that he should place the whiskey in Weber’s automobile instead of Mr. Benton’s pickup truck.

Soon after midnight, Mr. Lux, Mr. Weber, and Mr. Godier left the tavern building and loitered in the parking lot. The defendant watched them from the door. At one point, Mr. Weber walked over to Mr. Benton’s pickup truck but walked away when approached by Shinny Juelfs, a patron of the tavern. The trio then got into Mr. Weber’s car, backed down the road from the tavern and smoked some marijuana. Afterward, they drove the car without lights slowly forward to a location south of the tavern, then left the vehicle and urinated.

The defendant, becoming suspicious of the trio’s activities, obtained the pistol he kept on the premises for protection and went into the parking lot. He observed Mr. Weber approach Mr. Benton’s pickup truck. The defendant confronted Mr. Weber and told him to leave. When Mr. Weber moved towards him, the defendant advised him that he had a gun and repeated his order to leave. Mr. Weber walked back to his car.

A short time later, the defendant observed Mr. Lux near Mr. Benton’s pickup truck and went out into the dimly lit parking lot to confront him. Defendant believed that Mr. Lux had taken the two bottles of whiskey and ordered him to stop. Mr. Lux, however, began running. According to defendant, he fired a shot into the air and then attempted to fire over Mr. Lux’ head. Mr. Lux was struck by one of the shots but made it back to Mr. Weber’s car, which was immediately driven off. The defendant and Joe Faulkner, another patron of the tavern, entered an automobile and pursued them. When the automobile containing the defendant and Mr. Faulkner drew near to Mr. Weber’s automobile, the defendant fired a third shot which struck Mr. Weber’s left front fender. After the defendant and Mr. Faulkner ceased their pursuit, Mr. Weber drove Mr. Lux to the Red Bud Hospital in Prairie Du Rocher, Illinois, where Mr. Lux was pronounced dead. It was later determined that Mr. Lux’ death was caused by a bullet wound in the back.

At about 4 a.m. following the shooting, deputy sheriffs Tom Kocher and Darrell Hoffman went to the tavern to conduct an investigation. Both the defendant and Mr. Faulkner denied any knowledge of a gun or shooting. A few hours later, the deputies returned to the tavern with a search warrant. After searching the premises, the deputies advised the defendant that he was under arrest for murder. The defendant appeared shocked and surprised and gave the deputies a statement regarding what had occurred.

At trial the defendant maintained that his shooting of Mr. Lux was accidental and that he had no intention of causing any injury. Numerous witnesses testified regarding the defendant’s reputation for being a peaceful and law abiding citizen. Defendant testified in his own behalf that he fired his pistol only to scare Mr. Lux and the others and to force them to stop. He stated that he had no intention of hurting anyone and that he never thought that he had a right to shoot the three individuals.

On appeal, defendant first contends that the evidence is not sufficient to support a voluntary manslaughter instruction or verdict.

A person who kills another without legal justification commits voluntary manslaughter if, at the time of the killing, he acts under sudden and intense passion resulting from serious provocation or if, at the time of the killing, he has an unreasonable belief that the circumstances were such, if they existed, as would justify or exonerate the killing under the Criminal Code. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2(a) and (b).) Where the evidence fails to establish either of these mental states, a conviction for voluntary manslaughter cannot stand. See People v. Dodson (1973), 11 Ill. App. 3d 709, 713-14, 297 N.E.2d 367, 370-71.

During the instructions conference, the State, in response to the defendant’s objection to the giving of a voluntary manslaughter instruction, argued that the defendant’s testimony that he fired his pistol to protect the two bottles of whiskey in Mr. Benton’s pickup truck was sufficient to establish provocation which warranted a voluntary manslaughter instruction. This contention must be rejected because mere trespass to property does not amount to sufficient provocation to establish the offense of voluntary manslaughter. (See People v. Free (1976), 37 Ill. App. 3d 1050, 1052, 347 N.E.2d 505, 507; People v. Hammock (1979), 68 Ill. App. 3d 34, 39, 385 N.E.2d 796, 801.) The trial court was apparently misled by this argument and as a consequence granted the State’s request for a voluntary manslaughter instruction.

On appeal, the State advances an alternative theory that the defendant’s testimony allows an inference that the defendant’s actions were the result of an unreasonable belief that he had to protect himself from bodily harm. In support of this position, the State points principally to the fact that the defendant was aware of the fact that Mr. Weber had previously “kicked the living daylights” out of a person and that Mr. Weber “started for him” when the defendant confronted him near Mr. Benton’s pickup truck. We find, however, that the evidence, including the defendant’s own testimony, indicates that the defendant acted to protect property and not himself when he fired in the direction of the fleeing Mr. Lux. Moreover, the defendant’s testimony which suggests a fear of Mr. Weber does not justify a belief, reasonable or otherwise, that Mr. Lux, who had no reputation for violence and who was unknown to the defendant at the time of the shooting, was in any way a danger to the defendant.

The applicable principle governing this case was set forth by our supreme court in People v. Newman (1935), 360 Ill. 226, 231-32, 195 N.E. 645, 647. There the court stated:

“[W]here the evidence is such that it admits of but one of two conclusions, either that the defendant is guilty of murder or is innocent, the giving of an instruction and form of verdict on manslaughter is improper, and where given at the request of the People amounts to error requiring a reversal of the judgment if the accused be found guilty of the lesser crime. [Citations.]”

The State seeks to distinguish Newman on the ground that it was decided prior to the adoption of section 2 — 9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 2 — 9), which defines “Included offense.” It is suggested that under this statute, it is permissible for a jury to convict a defendant of a lesser included offense regardless of whether the requisite mental element is proved at trial. We disagree. Neither the jury’s historic power of leniency nor the fact that the defendant could have been convicted of a greater offense allows a conviction for an offense where all the elements are not proved. (See People v. Dodson (1973), 11 Ill. App. 3d 709.) In this regard, the cases relied upon by the State implicitly recognize that a defendant may be convicted of voluntary manslaughter when charged with murder only where the evidence warrants such a finding. See, e.g., People v. Sykes (1977), 45 Ill. App. 3d 674, 678, 359 N.E.2d 897, 900; People v. Lewis (1977), 51 Ill. App. 3d 109, 116-17, 366 N.E.2d 446, 451.

Additionally, we perceive no change in the law as set forth in Newman resulting from the adoption of section 2 — 9 of the Criminal Code. This statute does not purport to allow convictions where the elements of a lesser included offense are not adequately established. We must reject the State’s contention that the adoption of section 2 — 9 obviated the Newman holding that where there is no evidence in the record upon which a manslaughter verdict can be based, the giving of such an instruction constitutes reversible error. See People v. Echoles (1976), 36 Ill. App. 3d 845, 854-55, 344 N.E.2d 620, 627-28; People v. McMurry (1965), 64 Ill. App. 2d 248, 252-53, 212 N.E.2d 7, 9.

The State alternatively requests that we exercise our power under Supreme Court Rule 615(b)(3) (73 Ill. 2d R. 615(b)(3)) and reduce the degree of the offense to involuntary manslaughter. There is some merit to the State’s observation that the defendant acted with such recklessness as to warrant a conviction for involuntary manslaughter under section 9 — 3 of the Criminal Code of 1961. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 3; see People v. Bauman (1975), 34 Ill. App. 3d 582,340 N.E.2d 178.) The State’s request ignores, however, the fact that the jury in this case specifically acquitted the defendant of the offense of involuntary manslaughter. We cannot usurp the jury’s factual determination in this regard and enter a judgment of guilty for an offense for which the defendant was acquitted. Therefore, we must refuse the State’s request to reduce the degree of the offense.

The evidence fails to establish the defendant’s guilt of voluntary manslaughter, and the defendant was acquitted of all other offenses upon which the jury was instructed. Therefore, we reverse the judgment of the circuit court of Monroe County without remand. In this regard, we note that the court in People v. Thompson (1973), 11 Ill. App. 3d 752, 297 N.E.2d 592, was presented with a case in which the defendant had been charged with and tried for murder, but the jury found him guilty of the lesser included offense of voluntary manslaughter. The court there observed that the voluntary manslaughter conviction could stand only if the evidence adduced at trial established the necessary elements of the lesser included offense. The conviction in Thompson was reversed without remand, the court finding that the evidence was insufficient for the purpose of proving defendant guilty of voluntary manslaughter. The court based its refusal to remand on the fact that the defendant’s conviction of the lesser crime amounted to an acquittal of murder. In the case at bar, defendant was expressly found not guilty of murder by the jury.

Because of our decision, we need not address the other issues raised by the defendant.

For the foregoing reasons, the judgment of the circuit court of Monroe County is reversed.

Reversed.

JONES and WELCH, JJ., concur.


text:
    CHARLES GINN, Plaintiff-Appellant, v. CONSOLIDATION COAL COMPANY, Defendant-Appellee.
    Fifth District
    No. 81-286
    Opinion filed June 10, 1982.
    Bernard J. Ysursa and Donald W. Urban, both of Sprague, Sprague & Ysursa, of Belleville, for appellant.
    Don Johnson, of Hohlt, House, DeMoss & Johnson, of Pinckneyville, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

On December 3, 1980, plaintiff, Charles Ginn, filed a suit in the circuit court of Perry County, Illinois, against defendant, Consolidation Coal Company, seeking damages and injunctive relief. The action arose as a result of blasting operations conducted by defendant at one of its surface coal mines which allegedly caused damage to plaintiff’s property. Defendant filed a motion to dismiss plaintiff’s complaint on the grounds, inter alia, that the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. sec. 1201 et seq. (Supp. 11977)) (hereinafter referred to as the Surface Mining Act) and the Federal regulations promulgated thereunder pre-empted the jurisdiction of the State courts. On May 18, 1981, the trial court, finding that Federal law was pre-emptive, dismissed plaintiff’s complaint with prejudice and this appeal resulted.

Plaintiff’s complaint alleged that he and his wife, Margie Ginn, owned improved real estate on Rural Route #2, Pinckneyville, Illinois. It was further alleged that during 1980 defendant operated the Burning Star Mine No. 2 and conducted blasting operations with excessively heavy charges of explosives within 1000 feet of the dwelling located on plaintiff’s real estate and within 300 feet of the property line. Plaintiff contends that as a result of defendant’s blasting activities, stones and other debris were thrown upon plaintiff’s property and structural damage to plaintiff’s dwelling occurred.

Plaintiff’s brief on appeal contains additional allegations not found in his complaint although some of these allegations were set forth in plaintiff’s trial brief in opposition to defendant’s motion to dismiss. The defendant, while noting that only well pleaded facts contained in the complaint are properly before this court, chooses to treat these additional allegations as judicial admissions for purposes of establishing plaintiff’s failure to exhaust his administrative remedies.

Such additional allegations are as follows: Plaintiff exercised his right to request a preblast survey of the condition of his dwelling. The defendant’s blasting caused plaintiff to complain to the Federal Office of Surface Mining. Consequently, a Federal inspection of the defendant’s operations was made and a notice of violation was issued to the defendant on June 27, 1980. When plaintiff failed “to receive amicable or administrative satisfaction,” he filed the action in the instant case.

There are two issues before this court: (1) whether the Surface Mining Act has pre-empted the common law jurisdiction of State courts and provided the exclusive remedy in the case at bar; and (2) whether plaintiff’s failure to exhaust the administrative remedies available to him precludes him from filing the instant action.

We first address the question of whether Illinois tort law concerning the use of explosives has been pre-empted by the Surface Mining Act. Under the supremacy clause (U.S. Const., art. VI), Federal law pre-empts State law when the latter “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (Hines v. Davidowitz (1941), 312 U.S. 52, 67, 85 L. Ed. 581, 586-87, 61 S. Ct. 399, 404.) Absent an express Congressional intent to pre-empt State laws, courts will normally not find such pre-emption unless the State action directly conflicts with a Federal law or would frustrate a Federal scheme or unless, from the totality of circumstances, it appears that Congress sought to exclude State laws on the same subject. (Malone v. White Motor Corp. (1978), 435 U.S. 497, 504, 55 L. Ed. 2d 443, 450-51, 98 S. Ct. 1185, 1189-90.) In situations where Congress is alleged to have implicitly preempted a field which traditionally has been occupied by the States, it is assumed that there is no pre-emption unless that was the clear and manifest purpose of Congress. (Jones v. Rath Packing Co. (1977), 430 U.S. 519, 525, 51 L. Ed. 2d 604, 613-14, 97 S. Ct. 1305, 1309-10; Rice v. Santa Fe Elevator Corp. (1947), 331 U.S. 218, 230, 91 L. Ed. 1447, 1459, 67 S. Ct. 1146, 1152.) Tort liability is traditionally a function of State common law, and this fact has been afforded due consideration in determining whether Congress intended to pre-empt State law. See United Construction Workers v. Laburnum Construction Corp. (1954), 347 U.S. 656, 663-64, 98 L. Ed. 1025, 1030-31, 74 S. Ct. 833, 836-38; Praznik v. Sport Aero, Inc. (1976), 42 Ill. App. 3d 330, 341-42, 355 N.E.2d 686, 694-95.

Defendant argues that the broad purposes set forth in the Surface Mining Act and the regulations adopted thereunder (see Hodel v. Virginia Surface Mining & Reclamation Association, Inc. (1981), 452 U.S. 264, 268-72, 69 L. Ed. 2d 1, 11-13, 101 S. Ct. 2352, 2356-58) are so comprehensive as to exclude State common law actions for damages resulting from explosives used in mining operations. We disagree. Neither the history nor the stated purposes of the Surface Mining Act suggests a Congressional intent to extinguish State common law liability for damages resulting from blasting operations. (See H.R. Rep. No. 95-218, 95th Cong., 1st Sess. (1977) , reprinted in [1977] U.S. Code Cong. & Ad. News 593; 30 U.S.C. sec. 1202 (Supp. I 1977).) A claim of pre-emption is not made meritorious simply by reference to the comprehensive nature of Federal regulations under a particular act of Congress. Praznik v. Sport Aero, Inc.

Defendant further urges that since subsection 1270(f) (30 U.S.C. sec. 1270(f) (Supp. 11977)) provides a civil action for damages resulting from violations of any rule, regulation, order, or permit issued under the Surface Mining Act, an intent to pre-empt State common law actions may be inferred. We must reject this assertion in light of the savings clause found in subsection 1270(e), which provides:

“Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any of the provisions of this chapter and the regulations thereunder, or to seek any other relief (including relief against the Secretary or the appropriate State regulatory authority).” (30 U.S.C. sec. 1270(e) (Supp. I 1977).)

We conclude that this provision is an express indication that section 1270 should not be read as limiting other remedies which might exist. See City of Milwaukee v. Illinois (1981), 451 U.S. 304, 328, 68 L. Ed. 2d 114, 133, 101 S. Ct. 1784, 1798.

Furthermore, one of the express purposes of the Surface Mining Act is to protect the rights of surface landowners (30 U.S.C. sec. 1202 (Supp. I 1977)), and subsection 1270(f) (30 U.S.C. sec. 1270(f) (Supp. I 1977)) requires that individuals alleged to have suffered damage establish an injury resulting from a violation of a rule or regulation promulgated under the Surface Mining Act. In Illinois, on the other hand, common law civil liability resulting from blasting operations amounts to strict liability and requires merely a showing of a causal connection between the alleged damage and the use of explosives. (FitzSimons & Connell Co. v. Braun & Fitts (1902), 199 Ill. 390, 396-97, 65 N.E. 249, 251; Feet v. Dolese & Shepard Co. (1963), 41 Ill. App. 2d 358, 368, 190 N.E.2d 613, 618.) Therefore, we conclude that the imposition of tort liability on the basis of more stringent State law is consistent with the purposes of the Federal law. See Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 440, 396 N.E.2d 534.

The defendant maintains that a finding of pre-emption is mandated by City of Milwaukee v. Illinois and Middlesex County Sewerage Authority v. National Sea Clammers Association (1981), 453 U.S. 1, 69 L. Ed. 2d 435, 101 S. Ct. 2615; however, defendant’s reliance on these cases is misplaced. Both of these cases held that implied Federal common law remedies were pre-empted by Congressional act. The analysis in determining whether Federal common law is pre-empted by Federal statutory law is less stringent than that employed in discerning whether Federal law pre-empts State law. City of Milwaukee v. Illinois (1981), 451 U.S. 304, 316, 68 L. Ed. 2d 114, 126, 101 S. Ct. 1784, 1792.

In view of the above considerations, we conclude that plaintiff’s common law action for damages resulting from the use of explosives may be maintained in this State and hold that such action constitutes a separate and additional remedy under State law available to a party who has suffered damages as a result of the use of explosives in mining operations.

Defendant, relying on the fact that plaintiff admits in his brief that he had originally sought relief through administrative channels, argues that plaintiff’s failure to exhaust his administrative remedies precludes him from bringing his common law action. We disagree. The exhaustion of administrative remedies is required in situations where a party seeks judicial review of an administrative action. (Strom International, Ltd. v. Spar Warehouse & Distributors, Inc. (1979), 69 Ill. App. 3d 696, 388 N.E.2d 108.) “It requires both that plaintiff has been aggrieved by some administrative action and that there is an effective administrative remedy which would resolve plaintiff’s problem.” (69 Ill. App. 3d 696, 699-700, 388 N.E.2d 108, Ill.) In the case at bar, plaintiff does not ask for judicial review of any administrative action nor are we persuaded that he was required to seek relief through an administrative agency before seeking relief under the common law. While plaintiff’s brief indicates that he complained to the Federal Office of Surface Mining about the blasting and that as a result a notice of violation was issued to the defendant, there was no administrative determination by which plaintiff has been “aggrieved.”

Additionally, we note that the Surface Mining Act does not expressly require a party to pursue administrative remedies before proceeding to court to obtain common law remedies. Indeed, the language found in subsection 1270(e) that “[njothing in this section shall restrict any right which any person 0 * * may have under * * 0 common law * ° suggests that no exhaustion of administrative remedies is necessitated by the Surface Mining Act and that the institution of administrative proceedings is not a condition precedent to proceeding in the State courts in an action for damages.

Accordingly, we find that the trial court erred in dismissing plaintiff’s complaint under the pre-emption doctrine. The judgment of the circuit court of Perry County is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

JONES and HARRISON, JJ., concur.