author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH JOHNSON, Defendant-Appellant.
    Third District
    No. 82—847
    Opinion filed June 24, 1983.

      Robert Agostinelli and Pamela A. Peters, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gary L. Spencer, State’s Attorney, of Morrison (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

On August 12, 1982, the defendant, Kenneth Johnson, was charged with driving while license suspended in violation of section 6 — 303 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. OBVa, par. 6 — 303). The defendant waived a jury trial and stipulated that at the time and place in question, he was operating a motor vehicle upon a public roadway. The State presented evidence that on August 12, 1982, defendant did not have a valid driver’s license due to an order of suspension entered on September 14, 1979. The 1979 suspension had been extended to July 9, 1982, pursuant to a notice of extension which was mailed to the defendant in 1980.

The defendant moved for dismissal based on the fact that he was not given adequate notice that his license had been suspended. The trial court denied the motion, found the defendant guilty and sentenced him to 14 days in jail.

On appeal, the defendant argues that the State failed to prove beyond a reasonable doubt that he was guilty of driving while license suspended. We agree.

The only two factors necessary to establish a violation of section 6 — 303 are that the defendant was driving a motor vehicle on a public highway and, that at the time, the defendant’s driver’s license was suspended or revoked. The defendant stipulated to the fact that he was driving on a public highway. As to the second factor, the State offered into evidence a certificate from the Secretary of State which declared that on August 12, 1982, the defendant did not have a valid driver’s license. Attached to the certificate was an order of suspension entered on September 14, 1979, which did not specify a period of suspension.

The defendant’s evidence consisted of a notice of extension issued by the Secretary of State on February 21, 1980, which informed the defendant that the suspension of his driving privileges had been extended to July 9, 1982. We believe that this evidence adequately proved that as of July 9, 1982, the defendant’s license was no longer suspended.

The State argues that the notice of extension was irrelevant because the defendant did not take measures to have his license reinstated after July 9, 1982. Therefore, the defendant’s license was still suspended as of August 12,1982.

The major flaw in the State’s argument is that the cases cited in support of the proposition that there is no automatic restoration of driving privileges all refer to license revocation rather than suspension. When a person’s driver’s license has been revoked, he may not be issued another license until the provisions of section 6 — 208 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 6 — 208) have been complied with. In addition, the holder of a revoked license must also pay a reinstatement fee as specified in section 6 — 209 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95V2, par. 6 — 209).

The holder of a suspended license must also pay a reinstatement fee in order to have his license returned. But because Illinois law defines a suspension as a temporary sanction for a period specifically designated by the Secretary of State, failure to pay the fee does not extend the period of suspension. Ill. Rev. Stat. 1981, ch. 95^2, par. 1 — 204.

Although the defendant may have been driving without a valid license in his possession on August 12, 1982, in violation of section 6 — 112 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95V2, par. 6 — 112), the period of suspension had terminated on July 9, 1982. Therefore, we hold that the State failed to prove beyond a reasonable doubt that the defendant was guilty of driving while his license was suspended. The judgment of the circuit court of Whiteside County is reversed.

Reversed.

STOUDER, P.J., and ALLOY, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STOUDER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL DAWE, Defendant-Appellant.
    Third District
    No. 82—668
    Opinion filed June 27, 1983.
    Robert Agostinelli and Gary Hicks, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Bruce W. Black, State’s Attorney, of Pekin (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court;

On May 27, 1982, a two-count indictment was returned in the circuit court of Tazewell County charging the defendant, Daniel Dawe, with the offenses of unlawful possession of cannabis and unlawful possession of a controlled substance. Following a bench trial he was found guilty of both counts and sentenced to two concurrent two-year terms of probation. The issue on appeal is whether the trial court erred in denying the defendant’s motion to quash the search warrant authorizing the police to search the defendant’s premises and to suppress the evidence obtained therefrom. We affirm.

Defendant’s motion to quash the search warrant was filed prior to trial and a hearing was held on the motion on July 30, 1982. On August 11 the court denied defendant’s motion. The issue was whether the complaint for a search warrant was adequate to establish probable cause to search the residence at 2203 Valentine in Pekin, Illinois. In the complaint, Officer Ronald Gilchrist stated the facts upon which he was basing his request for the warrant as follows.

Gilchrist is an undercover police officer assigned to the Multicounty Narcotics Enforcement Group (MEG) in Tazewell County. He became acquainted with an informant who remained confidential for security reasons. The informant had previously been charged with possession of cannabis and had agreed to work for MEG.

On January 23, 1982, the informant was in the residence at 2203 Valentine and met Dan Dawe. In Dawe’s presence he saw what he believed to be between five and 10 pounds of cannabis. He related this to Officer Gilchrist, who told the informant that they would have to establish the informant’s reliability. Pursuant to that goal, the informant told Gilchrist there was another location in Pekin where he could purchase cannabis. They went there and, with Gilchrist watching him, the informant entered the building with $25 in MEG funds. Gilchrist had searched the informant and knew he had no cannabis in his possession. When the informant returned, he had a bag of what proved to be cannabis.

Early in the morning of July 29, 1982, Gilchrist contacted the informant again and met with him that afternoon. The informant told Gilchrist he had been to 2203 Valentine the previous night, had met Dawe there, and Dawe had given him a bag of what he believed to be a pound of cannabis. Gilchrist then swore out the complaint for the search warrant.

The fourth amendment provides that no warrants may issue without probable cause. Probable cause for the issuance of a search warrant may not be based upon hearsay from a confidential informant unless the two-pronged test first announced in Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, is met. This test requires that the judge determining the existence of probable cause be informed of (1) some of the underlying circumstances showing the basis of the informant’s conclusion (basis of knowledge) and (2) some of the underlying circumstances from which it may be concluded that the informant is credible or his information is reliable (veracity).

Both sides agree that the basis of knowledge prong was satisfied. The defendant contends, however, that there were insufficient facts in the complaint to establish the informant’s veracity. The State argues that the controlled purchase of cannabis was sufficient to show the informant was reliable and this established his veracity. We find the complaint satisfied both prongs of the Aguilar test.

The veracity prong of the Aguilar test may be satisfied in either of two ways. The first is to establish facts going to the informant’s credibility; i.e., to his general truthfulness. The second is to show facts going to the likelihood that the information supplied by the informant was true. It is well established that where an informant has given accurate information on other occasions, his information will be considered reliable. (See People v. Thomas (1974), 24 Ill. App. 3d 932, 321 N.E.2d 696.) In the case at bar, the informant gave accurate information regarding another purchase. We find this sufficient to establish the informant’s reliability.

The defendant contends that because the informant made the controlled purchase at the behest of the officer after he implicated the defendant and for the specific purpose of establishing his reliability, the purchase was insufficient to establish reliability. He argues that when an informant knows he is being tested, he is likely to tell the truth because he knows he is being tested and this does not imply that other information he might give is reliable. We disagree.

The circumstances in any controlled purchase are artificial in the sense that they have been planned in advance with police officers. That is what happened here. The informant was searched to make sure he had no drugs on his person. He was given money with which to buy drugs and he left the building with drugs. This is the same procedure that takes place in other cases and which has been held to prove the informant’s reliability. The fact that it takes place after a defendant has been implicated does not change the fundamental situation which gives rise to a finding of reliability.

Nor does the fact that the officer said the purchase was to be made to establish reliability make a difference. Establishing reliability is always part of a controlled buy and simply enunciating it creates no effective difference.

We find the informant’s reliability was adequately established. Therefore, probable cause did exist for the search warrant to be issued and the lower court acted correctly in denying the defendant’s motion. The judgment of the circuit court of Tazewell County is affirmed.

Affirmed.

SCOTT and HEIPLE, JJ., concur.


author: PRESIDING JUSTICE WEBBER

text:
      In re L.E.J., a Minor—(The People of the State of Illinois, Petitioner-Appellee, v. L.E.J., Respondent-Appellant).
    Fourth District
    No. 4—82—0735
    Opinion filed June 29, 1983.

      Daniel D. Yuhas and Jonathan Haile, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Howard L. Hood, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

The minor was adjudicated delinquent by the circuit court of Champaign County and committed to the Department of Corrections. He appeals, contending (1) that the court lacked jurisdiction, and (2) that he should have been given an opportunity to withdraw his admissions which formed the basis of adjudication.

No questions have been raised concerning the guilt of the minor nor reasonable doubt of it. Therefore, an extended recitation of the facts is unnecessary. Suffice it to say, he and a compatriot approached an elderly man who was walking with his dog on a city street in Urbana in the late evening hours of October 8, 1982. A weapon was brandished and money demanded of the man, who told them that he did not possess any upon his person. He was then struck upon the head with the weapon and his attackers walked away. It appears that he was not seriously injured. Both the minor and his companion were shortly afterwards apprehended by the police as a result of an unrelated incident which occurred at Mercy Hospital. Their stories conflicted as to which one possessed and used the weapon.

A delinquency petition was then filed alleging that the minor had committed the offenses of attempt (armed robbery) in violation of sections 8 — 4(a) and 18 — 2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 8 — 4(a), 18 — 2(a)). Additional charges of aggravated battery and attempt (robbery) were later dismissed by the State. At the adjudicatory hearing the minor stipulated and admitted to the charge of attempt (armed robbery) and was declared delinquent. At the dispositional hearing he was committed to the Department of Corrections.

The minor’s principal contention on appeal is that the trial court lacked jurisdiction. We believe that he misapprehends the nature of the jurisdiction of a circuit court in a juvenile proceeding.

We pause briefly to comment on the usage of the term “juvenile court” in referring to a circuit court sitting in a juvenile case. It is not a separate court. The Constitution of 1970 (Ill. Const. 1970, art. VI, sec. 1) provides only for “circuit courts.” This was likewise true of the Constitution of 1870, as amended in 1962. (Ill. Const. 1870, art. VI (1962), sec. 1.) Prior to that time the Constitution of 1870 provided for a variety of courts, including “one supreme court, circuit courts, county courts, justices of the peace, police magistrates, and such courts as may be created by law in and for cities and incorporated towns.” (Ill. Const. 1870, art. VI, sec. 1.) Under the predecessor statute of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 701 — 1 et seq.), the Family Court Act (Ill. Rev. Stat. 1951, ch. 23, par. 190 et seq.), circuit and county courts were given “original jurisdiction in all cases coming within the terms of” that act. (Ill. Rev. Stat. 1951, ch. 23, par. 191.) As a matter of practice, except in Cook County, most juvenile cases were heard in the county courts and a habit of usage grew up of calling these hearings “juvenile court.” Although the appellation is useful in identifying the nature of the proceeding, there is no such tribunal as a “juvenile court” under either the present or the predecessor statute. Even the supreme court, by momentary lapse, referred to the Family Court Act (Ill. Rev. Stat. 1955, ch. 23, par. 192b) as the “Juvenile Court Act.” People ex rel. Houghland v. Leonard (1953), 415 Ill. 135, 112 N.E.2d 697.

Back to the case at bar: the minor’s jurisdictional argument stems from the admitted failure of the State to notify his natural father and an aunt of the adjudicatory hearing. The petition alleged as respondents in addition to the minor:

“MOTHER: Eddie Mae Hicks, L/K/A - 307 W. Clark, Urbana or 1201N. Busey, Urbana, IL
GUARDIAN: Department of Children and Family Services, 3402 N. Mattis, Champaign, IL
FATHER: Leroy James, 608 N. Randolph, Champaign, IL or Unit A, Tudor Court, Dobbins Down, Champaign, IL.”

The record does not disclose service or notification to any of these. The mother appeared at the adjudicatory hearing, although there is nothing in the record to indicate how she learned of it. The Department of Children and Family Services (Department) appeared throughout. It apparently became aware of the minor’s current problems by reason of having been awarded guardianship of the minor as a result of a prior neglect proceeding in 1979. The father never appeared. In the record there is an affidavit for service by publication, signed by the State’s Attorney, and setting up the last known addresses of the father as being the same as set forth in the petition recited above. Insofar as the record shows, there was no publication. An aunt, Ms. Patterson, appeared at the dispositional hearing, although she was not named as a respondent. A probation officer’s report indicates that the Department had placed the minor with her in foster care about four months prior to the instant offense and that he was residing with her at the time. She visited with him once while he was in detention from the date of the offense until the adjudicatory hearing.

While we cannot condone the cavalier attitude of the State in failing to give notice to any respondent mother, guardian, or father, we are likewise disturbed by the failure of defense counsel to enter any objection thereto. Nevertheless, under the circumstances here present, we do not find any impairment of the circuit court’s jurisdiction, although we are apprehensive that the bench and bar are reading In re J.W. (1981), 87 Ill. 2d 56, 429 N.E.2d 501, and In re S.W.C. (1982), 110 Ill. App. 3d 695, 442 N.E.2d 961, too expansively.

The jurisdiction of the circuit court is no longer dependent upon statutes and derives from the constitution itself. (In re Estate of Mears (1982), 110 Ill. App. 3d 1133, 443 N.E.2d 289.) In the area of juvenile proceedings this distinction may be observed in the difference in language between the Juvenile Court Act and its predecessor, the Family Court Act. The former speaks of “jurisdictional facts” (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 1) while the latter specifically conferred original jurisdiction, as set forth above. Under the Constitution of 1970 the circuit court has original jurisdiction “of all justiciable matters.” (Ill. Const. 1970, art. VI, sec. 9.) While that term is not easily defined, in the juvenile context its apparent meaning is an offense for which the juvenile may be accountable. This is what has traditionally been designated as subject matter jurisdiction. The existence of subject matter jurisdiction was expressly acknowledged in J. W. where the supreme court said, “The court, then, had jurisdiction of the subject matter and of the persons of the minor and his mother, but not of the person of the father.” 87 Ill. 2d 56, 59, 429 N.E.2d 501, 503.

Jurisdiction of persons under the Juvenile Court Act is regulated by that statute and is one of the conditions precedent to the exercise of subject matter jurisdiction. (.Mears.) To state the matter another way, subject matter jurisdiction is the power of the court to adjudicate; personal jurisdiction is the ability to exercise that power as to particular individuals. Lack of personal jurisdiction does not deprive the court of subject matter jurisdiction; only the ability to exercise its power upon those who have not been brought into court by summons or otherwise.

Thus, in the seminal case of In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428, where the juvenile was taken into custody without notice to his parents, where a petition for delinquency was filed and not served on either the juvenile or his parents and made no reference to the factual basis for its filing, and where both the juvenile and his parents were deprived of fundamental rights, the Supreme Court held that there was a due process violation, but nowhere did it hold that the Arizona court lacked jurisdiction. In fact, it reversed and remanded. Lack of personal jurisdiction may yield a voidable order, but such an order is not void for lack of subject matter jurisdiction.

We feel that the same rationale underlies the decision of our supreme court in J.W. There was no service of any kind upon the father, yet there was no doubt in the court’s mind that subject matter jurisdiction existed.

This is not to say that subject matter jurisdiction alone allows the court to proceed to judgment. Gault mandates quite the contrary. What is meant is that lack of service over some of the respondents will not deprive the court of jurisdiction; in some cases such a lack will be meaningless (e.g., J.W.)-, in others it may require reversal of the order, not for lack of jurisdiction, but for a statutory or constitutional violation. In this connection we believe that In re T.B. (1978), 65 Ill. App. 3d 903, 382 N.E.2d 1292, may be questioned for its statement that failure to obtain proper notice on the juvenile’s mother deprived the court of jurisdiction and made its orders void. The authority cited was decided under the Family Court Act and the Constitution of 1870. The differences in those documents from the Juvenile Court Act and the Constitution of 1970 have already been noted. Furthermore, if the order were void for lack of jurisdiction, outright reversal would have been proper; however, the court elected to reverse and remand on the basis of Gault.

Turning at last to the facts of the instant case, we find nothing in this record which would deprive the court of jurisdiction. The petition contained the names and last known residences of his parents and the name and residence of his legal guardian. (Ill. Rev. Stat. 1981, ch. 37, pars. 704 — l(2)(c), (d).) Inexplicably no attempt at notification, publication, or service was made upon any of the named respondents, but, as previously indicated, the mother appeared at the adjudicatory hearing and the Department, as legal guardian, appeared throughout. There is no showing in the record that the father had any significant relationship with the minor other than a placement by the Department of the minor in foster care with the father. This placement terminated about 17 months prior to the instant offense and thereafter the father left the Champaign area and was believed to be somewhere in the State of Colorado. He fits precisely in the mold of J.W. and was not an indispensable party.

The same may be said of the aunt, Ms. Patterson. The petition must state “the name and residence of his legal guardian or the person or persons having custody or control of the minor.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 37, par. 704-l(2)(d).) The Department was named as guardian; while the aunt had custody, it was foster care under the direction of the Department. She also was not an indispensable party, and as previously noted, voluntarily appeared at the dispositional hearing.

In summary, there are no deficiencies in the notice requirements which render the court’s orders voidable, nor have there been any due process violations.

The minor’s final contention is that the court should have given him an opportunity to withdraw his stipulation and admission of guilt under Supreme Court Rule 402(d) (87 Ill. 2d R. 402(d)) and cites for this proposition People v. Collins (1981), 100 Ill. App. 3d 611, 426 N.E.2d 1274. The supreme court has specifically held that the requirements of Rule 402 do not apply in juvenile cases. In re Beasley (1977), 66 Ill. 2d 385, 362 N.E.2d 1024.

We have examined the trial court’s admonitions with care and find that they fully meet constitutional muster.

The orders of the circuit court of Champaign County are affirmed.

Affirmed.

MILLS and GREEN, JJ., concur.


author: JUSTICE ALLOY

text:
    WILLIAM DAVID DRAGOVAN, JR., a Minor, by William David Dragovan, Sr., his Father and Next Friend, Plaintiff-Appellant, v. THE CITY OF CREST HILL et al., Defendants-Appellees—(Dennis Jaskoviak, Sr., et al., Defendants).
    Third District
    No. 82—689
    Opinion filed June 21, 1983.
    Roman R. Okrei, of Stefanich, McGarry & Wols, Ltd., of Joliet, for appellant.
    Thomas Feehan and Pamela E. Davis, both of Thomas, Wallace, Feehan, Baron, and Kaplan, Ltd., of Joliet, for appellees.
   JUSTICE ALLOY

delivered the opinion of the court:

The plaintiff sued the city of Crest Hill and Dennis Jaskoviak, Sr., individually and in his official capacity, to recover for injuries sustained by him as a result of a shooting. The trial court granted summary judgment in favor of the city and Jaskoviak in his official capacity. The plaintiff now appeals.

Jaskoviak is chief of police for the city of Crest Hill. In November 1979, Chief Jaskoviak removed a .45-caliber revolver from a police evidence locker. The police department came into possession of this weapon when it confiscated the gun in the course of an arrest six years earlier. Under a prior court order, this gun should have been made inoperable and used by the police for display purposes only. At the time of the incident here, however, the gun was in working order.

Jaskoviak, contemplating an addition to the police department’s arsenal, took the gun in order to test fire it. He did not sign for the gun nor did he leave any record of its removal, in contravention of the department’s procedures for handling evidence property. Jaskoviak brought the gun to his home and, the next morning, drove to a quarry to test the gun.

The plaintiff and Jaskoviak’s minor son (also a defendant in this action, but not a party to this appeal) accompanied Jaskoviak to the quarry. Jaskoviak fired the weapon and also allowed both his son and the plaintiff to fire it. After this, Jaskoviak and the two boys went back to Jaskoviak’s home. Jaskoviak left the gun on a sofa in the living room and went into another room to eat his lunch. Jaskoviak’s son and the plaintiff went into the living room, supposedly to clean the gun. A short time later, Jaskoviak’s son shot the plaintiff in the face and neck. As a result of this gunshot wound, the.plaintiff is partially paralyzed. The plaintiff was 10 years old at the time of the shooting.

The issue here is whether the city can be held responsible for Jaskoviak’s actions. The city contends that Jaskoviak’s conduct was ultra vires, so his actions cannot be said to be within the scope of his employment. The plaintiff argues that there is at least a triable issue as to whether Jaskoviak was acting within the scope of his employment.

The crux of the city’s argument is that its power to deal with the weapon was limited by the Criminal Code of 1961 and the prior court order. By statute, a court may transfer a confiscated weapon either to the county sheriff for eventual destruction or to the governmental body whose police department originally seized the weapon. (Ill. Rev. Stat. 1981, eh. 38, par. 24 — 6.) Since a court order directed the city to use the gun only for display purposes and only in inoperable condition, the city contends that Chief Jaskoviak’s use of the weapon was beyond the scope of its municipal powers. The city contends, therefore, that Chief Jaskoviak’s actions were ultra vires and that the city is absolved of responsibility for his actions.

Before we address the merits of the appeal, one preliminary matter must be determined. The motion of the appellant to allow its brief and argument, which is addressed to one of the four motions for summary judgment, to stand as its argument on all four motions for summary judgment is allowed.

Turning to the merits, we note that this appeal comes to this court on a motion for summary judgment. Summary judgment should be granted to a party only if the pleadings, depositions, admissions and affidavits reveal no genuine issue of fact and only if the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005; Sheetz v. Morgan (1981), 98 Ill. App. 3d 794, 424 N.E.2d 867.) Because summary judgment is a drastic measure, it should be granted only when the movant’s right to it is free from doubt. (United Security Insurance Co. v. Mason (1978), 59 Ill. App. 3d 982, 376 N.E.2d 653.) Cases in which an employer’s or principal’s liability depends upon whether another individual was acting within the scope of his employment or agency are usually inappropriate for resolution by summary judgment. See, e.g., Wallace v. Smith (1979), 75 Ill. App. 3d 739, 394 N.E.2d 665; Marlaire v. Smith (1978), 62 Ill. App. 3d 995, 379 N.E.2d 763.

In the case at bar, the defendant’s motion for summary judgment should not have been granted. At the time Jaskoviak took possession and control of the gun, he was chief of police for the city. His stated and undisputed purpose was to test the weapon for possible use in the police department’s arsenal. As the chief of police, Jaskoviak was responsible for the proper performance of the police department, and it would be reasonable to conclude that those responsibilities included the maintenance and supply of the police department’s arsenal. At least, the question of whether Jaskoviak’s actions were within the scope of his employment is a triable issue of fact that is inappropriate for resolution by summary judgment.

The city’s argument to the contrary does not withstand analysis. Violation of a statute does not render a municipal employee’s actions ultra vires. Such a rule would, de facto, grant municipalities almost complete immunity from suit. The city refers to the statute ■ and the court order as a limitation on its powers, as distinguished from an illegal action by its employee. This is a distinction without a difference. If we accept the city’s argument, an automobile collision which resulted from a police officer driving at an excessive speed could not result in liability for the city. Arguably, absent lawful justification, a municipality has no “power” to have its vehicles exceed speed limits. Nor could a city ever be held liable for a battery committed upon an individual by a police officer. Again, a municipality has no “power” to subject individuals to unjustified force or violence. Yet liability is regularly imposed upon municipalities for such actions by their employees, even when those actions may also amount to a violation of a statute. (E.g., Baselski v. City of Chicago (1972), 9 Ill. App. 3d 516, 292 N.E.2d 475 (suit for negligence; violation of traffic law); King v. City of Chicago (1978), 66 Ill. App. 3d 356, 384 N.E.2d 22 (suit for wilful and wanton conduct; battery by police officer).) Actions in disregard of a statute or court order does not, therefore, sever the scope of employment as a matter of law.

The defendants’ reliance upon Ward v. Forest Preserve District (1957), 13 Ill. App. 2d 257, 141 N.E.2d 753, is misplaced. In Ward, the superintendent of the district called the plaintiff a Communist. The trial court dismissed the plaintiff’s suit for defamation. The appellate court affirmed, ruling that the plaintiff’s failure to allege special damages was fatal to his action. In dicta, the court observed that the district could not be held liable because a municipality cannot confer authority upon its agents to represent it beyond its corporate powers. Although, the superintendent, acting in his official capacity, slandered the plaintiff, the court opined that such statements were ultra vires. Citing no authority, the court reasoned that liability could attach only if the district had power to take such action in the first place and if it later ratified the superintendent’s actions.

Our review of the relevant case law reveals no case which has cited Ward’s dicta or subscribed to its view in actions such as that in that case at bar. On the contrary, the cases which have imposed liability on municipalities for negligent and intentional conduct of their employees, including conduct which the municipality would have no power to take or ratify, brings the reasoning of Ward into question, at least as far as concerns tort actions. E.g., Baselski; King; Marlaire. See also LaMonte v. City of Belleville (1976), 41 Ill. App. 3d 697, 355 N.E.2d 70 (wilful and unjustified use of deadly force).

Whether Chief Jaskoviak was acting within the scope of his employment is a triable issue of material fact. On the record, summary judgment should not have been granted to either the city or to Jaskoviak in his official capacity.

The judgment of the circuit court of Will County is, accordingly, reversed and the cause is remanded for further proceedings.

Reversed and remanded.

STOUDER, P.J., and BARRY, J., concur.


author: JUSTICE SCOTT

text:
    DENNIS PYSE, Plaintiff-Appellant, v. PATRICIA BYRD, Defendant-Appellee.
    Third District
    No. 82—721
    Opinion filed June 24, 1983.

      John Olivero and William LaSorella, both of Peru, for appellant.
    George C. Hupp, Sr., and Gale F. Murrin III, both of Hupp, Irion, Hupp & Murrin, P.C., of Ottawa, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The plaintiff, Dennis Pyse, was severely injured on July 4, 1979, when the motorcycle he was driving ran into the rear end of an automobile driven by the defendant, Patricia Byrd. The plaintiff filed suit seeking to recover damages for his injuries. After a trial before a La Salle County jury, a verdict was returned for the defendant under the law of comparative negligence, the jury concluding that the defendant was guilty of no negligence based upon the evidence before it. The plaintiff has appealed the jury’s verdict, alleging that numerous errors occurred in the La Salle County trial which would require a reversal of the verdict.

On the day of the collision in question, the plaintiff and his wife attended a Fourth of July picnic at a rural farmhouse which was rented by Emerson Byrd and his wife, Patricia Byrd, the defendant. Numerous friends and relatives of Mr. and Mrs. Byrd also attended the picnic. During the course of the picnic games were played, dinner was served, and alcoholic beverages were consumed. At approximately 11 p.m., the defendant left the farmhouse to drive her mother-in-law to the latter’s home in Mendota. She expected the plaintiff to follow her, driving his motorcycle. Both vehicles left the farmhouse traveling west along North 42d Road. Just a quarter of a mile from the farmhouse, North 42d Road intersected with County Highway 19. The defendant, followed by the plaintiff, turned north on County Highway 19 and traveled just over 800 feet from the intersection to past the top of a knoll in the road. As the plaintiff reached the top of the knoll in County Highway 19, the bright headlights of an approaching southbound car hindered his visibility. Just a third of a mile beyond the crest of the knoll, County Highway 19 curves to the left. On July 4, 1979, the plaintiff did not round that curve on his motorcycle, for moments after passing the crest of the knoll, the plaintiff collided with the rear end of the defendant’s car, which he was following.

The plaintiff’s theory of the case is that the defendant negligently stopped or almost stopped her automobile on County Highway 19 after dusk. The defendant testified that she reduced her speed to between 40 and 45 miles per hour to negotiate the curve in County Highway 19. Her theory of the case is that the plaintiff negligently drove his motorcycle too fast, after dusk and after drinking all day at the Fourth of July picnic. At the outset, the plaintiff urges that the verdict of the La Salle County jury should be reversed because it is against the manifest weight of the credible evidence.

A road sign on County Highway 19 warns northbound motorists that the roadway curves to the left just north of the locations where the subject collision occurred. The same road sign advises approaching motorists that the speed limit for the curve is 45 miles per hour, a reduction from the usual speed limit on County Highway 19 of 55 miles per hour. A reading of the record in this case reveals disputes in the testimony as to the precise location of the collision. By one version of events, the collision occurred in the 55-mile-per-hour speed zone, south of the reduced speed zone for the curve, where the defendant had stopped or almost stopped her vehicle waiting for the plaintiff to catch up to her. By another version of events, the collision occurred within the reduced speed zone for the curve, when the defendant had reduced the speed of her vehicle to between 40 and 45 miles per hour. While we find evidence in the record to support both points of view, it is axiomatic that a reviewing court will not reweigh the evidence in the record, but will only review the evidence to determine if the conclusions reached by the finder-of-fact are sufficiently supported by credible evidence. (2 Ill. L. & Prac. Appeal & Error sec. 777 (1953).) Where, as here, there is substantial evidence to support the jury’s conclusion, we will not set aside its verdict.

The use of the plaintiff’s pretrial deposition during the course of the proceedings in the La Salle County court resulted in four rulings by the circuit judge which the plaintiff alleges were reversible error. First, it is urged that a question and answer from the deposition were used to impeach the plaintiff’s testimony at trial when the question itself was confusing and misleading. In reviewing the transcript of proceedings, it is apparent that no timely objection based upon the grounds argued in plaintiff’s appellate brief was argued to the trial court. At the trial below, in his attempted impeachment of the plaintiff, the defendant’s attorney read eight questions and eight corresponding answers from the plaintiff’s pretrial deposition. Among the eight questions read was the question objected to now as confusing and misleading. The plaintiff’s attorney interposed the following objection:

“I object. Are you going to read the whole deposition.”

The objection presented in the court below provided the trial judge no opportunity to rule on the issue of whether the colloquy in the deposition was confusing and misleading. Where the grounds of objection to admission of testimony have not been included in the objection entered in the trial court, we will not consider such grounds on appeal. (Svenson v. Miller Builders, Inc. (1979), 74 Ill. App. 3d 75, 392 N.E.2d 628; Tripp v. Bureau Service Co. (1978), 62 Ill. App. 3d 998, 379 N.E.2d 324; Continental Illinois National Bank & Trust Co. v. Eastern Illinois Water Co. (1975), 31 Ill. App. 3d 148, 334 N.E.2d 96.) Accordingly, we conclude that plaintiff’s objection was not preserved for appeal.

Additionally, the plaintiff believes his case in the court below was prejudiced when his attorney was not permitted to read additional portions of his pretrial deposition in an attempt to rehabilitate his testimony. The Supreme Court Rules provide that:

“If only a part of a deposition is read or used at the trial by a party, any other party may at that time read or use or require him to read any other part of the deposition which ought in fairness to be considered in connection with the part read or used.” (87 Ill. 2d R. 212(c).)

The privilege provided by Rule 212 to require additional portions of a deposition to be read is not unconditional, but rather is conditioned on the rule of fairness. The fairness standard of Rule 212 reflects the purposes of the rule, that is to prevent distortion which might occur when a party introduces isolated statements from a deposition into evidence. Before a party can force another to read additional portions of a deposition into evidence, the trial court must first conclude that the additional statements are necessary to either explain or modify statements originally introduced by the other party. (Dombrowski v. Laschinski (1978), 67 Ill. App. 3d 506, 385 N.E.2d 35; Morse v. Hardinger (1976), 34 Ill. App. 3d 1020, 341 N.E.2d 172.) To require the reading of the entire deposition, or portions of the deposition which do not explain or modify statements originally introduced, is improper. (Wise v. St. Mary’s Hospital (1978), 64 Ill. App. 3d 587, 381 N.E.2d 809.) We believe no error occurred in the instant case, as the portions of the deposition which plaintiff’s attorney sought to read in an attempt to rehabilitate his client’s testimony neither explained nor modified the impeachment testimony and therefore did not meet the fairness test required by the Supreme Court Rule.

The plaintiff’s pretrial deposition again became an issue in the proceedings before the circuit court when the plaintiff’s attorney was prohibited from reading portions of that deposition during closing argument. A lengthy discussion occurred at the bench concerning the portions of the deposition which were sought to be read, and as pointed out in the defendant’s appellate brief, there was considerable confusion as to which portions of the deposition were in issue. A review of the transcript of the side bar discussion leaves us only to guess which portions of the deposition were sought to be the subject of the closing argument. Since it is impossible to tell what portions of the deposition were in issue, and since no offer of proof was made which would assist this court, we have no alternative but to conclude that this alleged error has not been properly preserved for review. (Hamming v. Murphy (1980), 83 Ill. App. 3d 1130, 404 N.E.2d 1026; Motion Picture Appeal Board v. S. K. Films (1978), 65 Ill. App. 3d 217, 382 N.E.2d 103; Simon v. Plotkin (1977), 50 Ill. App. 3d 603, 365 N.E.2d 1022.) This is especially the rule where, as here, ambiguity surrounding the trial court’s ruling results in uncertainty as to the portions of the deposition which were excluded from use by plaintiff’s attorney in closing argument. Pioneer Hi-Bred Corn Co. v. Northern Illinois Gas Co. (1975), 61 Ill. 2d 6, 329 N.E.2d 228.

Finally, the plaintiff’s pretrial deposition became a point of contention in the circuit court when the defendant’s attorney was permitted to read portions of the deposition during closing argument, portions which had not previously been part of the trial record. We agree that a statement of counsel regarding facts not in evidence is improper and may be prejudicial. (Gabosch v. Tullman (1974), 21 Ill. App. 3d 908, 316 N.E.2d 226.) On the other hand, where comments on facts dehors the record are essentially cumulative of evidence properly before the jury, any error which occurs is not prejudicial, and therefore harmless. (Lawson v. Belt Ry. Co. (1975), 34 Ill. App. 3d 7, 339 N.E.2d 381; Ervin v. Neil (1980), 81 Ill. App. 3d 5, 400 N.E.2d 667.) Since the statements from plaintiff’s pretrial deposition which the defendant’s counsel read set forth facts to which plaintiff had directly testified during the course of the trial, we believe the error which occurred in reading those matters not in evidence was in fact harmless.

The plaintiff has, in his brief, raised a question as to the propriety of the circuit court giving defendant’s instructions Nos. 6 and 8 and the court’s instruction No. 1. The only reference to these instructions in plaintiff’s post-trial motion is found in paragraph 39, which reads as follows:

“39. The Court erred in overruling plaintiff’s objections to defendant’s instructions Nos. 6, 7 & 8, and others and giving court’s instruction No. 1 on the issues.”

The Civil Practice Act provides that:

“The post-trial motion must contain the points relied upon, particularly specifying the grounds in support thereof, ***.” (Ill. Rev. Stat. 1981, ch. 110, par. 68.1(2).)

Our Supreme Court Rules further provide that:

“A party may not urge as error on review of the ruling on his post-trial motion any point, ground, or relief not specified in the motion.” (87 Ill. 2d R. 366(b)(2)(iii).)

In interpreting the Civil Practice Act and Supreme Court Rules, it has been determined that summarily listing jury instructions in the post-trial motion does not set forth with specificity sufficient to preserve the matter for review any alleged error in those instructions. (Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 415 N.E.2d 337; Turney v. Ford Motor Co. (1981), 94 Ill. App. 3d 678, 418 N.E.2d 1079; Powers v. Illinois Central Gulf R.R. Co. (1981), 92 Ill. App. 3d 1033, 416 N.E.2d 1161.) In the instant case, the pertinent paragraph of the post-trial motion is virtually identical to the post-trial motion in Brown, Turney and Powers. In each of those cases, it was determined that the lack of specificity in the post-trial motion waived for appellate review any alleged error in the jury instructions. Inasmuch as the facts before us are indistinguishable, we hold the same rule of law to apply.

The plaintiff asserts that certain hearsay statements allegedly uttered by his wife, Emerson Byrd and Carlton Mann were improperly admitted into evidence. Again, it would appear that no error occurred. Before the plaintiff left the Fourth of July picnic, he had a conversation with Emerson Byrd and his wife. At trial, Mr. Byrd was questioned about that conversation. In response to questioning, Mr. Byrd described the conversation:

“I said he was drunk, you know, you’re drunk. And I don’t want you to drive. And he kept persisting about it. And he told his wife to ride with him. And I says, you know, I don’t think its a good idea. And she said, No, you’re drunk.”

At this point plaintiff’s attorney interposed an objection, asserting that Mr. Byrd’s testimony concerning statements made by the plaintiff’s wife were hearsay. The court sustained that objection, and defendant’s counsel cautioned the witness about testifying as to remarks made by other persons who were parties to the conversation. Later, Carlton Mann was called to the -witness stand. Mr. Mann recalled a conversation that he had with the plaintiff just prior to the plaintiff’s leaving the picnic:

“I stated the fact that he was — I think he was unable to drive his motorcycle on home that evening. And then-.”

Again, an objection was interposed by plaintiff’s counsel. The objection was overruled. The plaintiff urges on appeal that the out-of-court declaration of Mrs. Pyse, Mr. Byrd and Mr. Mann all constituted inadmissible hearsay. We agree that the out-of-court declarations of Mrs. Pyse as testified to by Mr. Byrd were hearsay statements. However, the court sustained the plaintiff’s objection to this testimony. The court ordered the remark stricken and ordered the jury to disregard it. We believe this was sufficient to cure any error which occurred.

The out-of-court declarations of Mr. Byrd and Mr. Mann were not, we believe, properly classified as hearsay. The real basis for the exclusion of hearsay evidence generally lies in the fact that a declarant, if he is absent from court and not available as a witness, is not subject to the testing process of cross-examination to reveal weaknesses in his perception, memory and integrity. Where the declarant is present in court, testifies as to his declaration, and is subject to cross-examination with regard to that declaration, the basis for excluding hearsay is removed, and the declaration itself does not satisfy the definition of hearsay. (2 Gard, Illinois Evidence Manual Rule 12:02 (2d ed. 1979); McCormick, Evidence sec. 245, at 583 (2d ed. 1972); Cleary, Handbook of Illinois Evidence sec. 13.1 (1956).) Where, as here, the declarant himself testified as to prior out-of-court declarations, and was therefore present and subject to cross-examination, no hearsay objection is appropriate.

After this case had been given to the La Salle County jury for its decision, and after but a short time of deliberation, the jury delivered the following message to the bailiff:

“Were blood tests taken of Mr. Pyse at the hospital? Is that information available to us?”

It is the plaintiff’s contention that this message from the jury indicates that the deliberations of the jury were tainted by their fixation on the issue of intoxication. The plaintiff concedes that the court responded properly to the jury’s inquiry, but nevertheless he believes that the inquiry itself demonstrated an undue emphasis on the question of his intoxication at the time of the collision on July 4, 1979. Our review of the transcript of proceedings persuades us that the jury’s consideration of the intoxication issue was not a fixation on a spurious issue, but rather was a conscientious attempt to focus on a crucial point of dispute. The plaintiff’s ability to remember, his ability to focus despite the glare of oncoming headlights, his ability to react in light of impending danger, and his ability to judge relative speeds and distances could all have been impaired in a state of intoxication. Thus, evidence of intoxication was crucial to the fact-finding process. The jury here is to be commended, rather than faulted, for identifying one of the decisive issues for their consideration. For that reason, we cannot agree with the characterization of the jury’s concern as a prejudicial fixation.

For the reasons we have set forth above, and in reliance on the authorities cited, we conclude that the judgment of the circuit court of La Salle County should be affirmed.

Affirmed.

STOUDER, P.J., and ALLOY, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. STEVE POLK, JR., Defendant-Appellee.
    Third District
    No. 82—850
    Opinion filed June 30, 1983.

      Gary L. Morris, Assistant Corporation Counsel, of Peoria, for the People.
    Michael W. Heller, of Peoria, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The defendant-appellee, Steve Polk, Jr., was arrested on July 8, 1982, in Peoria, Illinois, for driving while under the influence of alcohol, driving while license suspended and speeding. He was taken to St. Francis Hospital where a blood alcohol test was performed. Because the defendant was in a state of shock, no oral or written consent to the blood test was obtained from him.

On November 3, 1982, defense counsel filed a motion to suppress the results of the blood alcohol test on the basis that no valid consent had been given. The motion was called up for hearing on November 9. At that time, the State agreed to the entry of an order allowing the defendant’s motion and suppressing, the results of the test. Subsequently, the State filed a motion to vacate the earlier order suppressing the blood test. It is from a denial of its motion to vacate that the State appeals.

Prior to January 1, 1982, the relevant portion of the implied consent statute in Illinois read as follows:

“Any person who is dead, unconscious or who is otherwise in a condition rendering him incapable of refusal, shall be deemed to have withdrawn the consent provided by this Section.” (Ill. Rev. Stat. 1979, ch. 951/2, par. 11 — 501.1(e).)

Effective January 1, 1982, the statute was amended to read as follows:

“Any person who is dead, unconscious or who is otherwise in a condition rendering such person incapable of refusal, shall be deemed not to have withdrawn the consent provided by paragraph (a) of this Section ***.” Ill. Rev. Stat. 1981, ch. 95V2, par. 11 — 501.1(b).

It is clear that the law governing the taking of alcohol blood tests from persons incapable of giving their consent has changed drastically. Implied consent to such tests, once deemed withdrawn, is now considered not to be withdrawn.

It is equally clear that the trial judge erred in allowing the defendant’s motion to suppress since that motion was based on a statutory provision no longer in effect. Likewise, the State erred in agreeing to the allowance of the defendant’s motion.

The problem arises. What, if anything, can be done to remedy the compounded error? In this appeal, the State argues that the agreed-to order can be analogized to a contract and set aside upon the same basis that a contract may be rescinded. The State further argues that where a stipulation is entered into under mistake of law or in violation of public policy, the court may relieve the parties of the burdens placed upon them by the stipulation. In rebuttal, the defendant correctly points out that while a court may set aside stipulations under certain circumstances, there is no requirement that stipulations based on mistakes of law be set aside. The defendant also contends that an agreed-to order is not a stipulation in the technical and literal sense of the word.

While an agreed-to order is not, literally, a stipulation, the distinction between the two is not such as to render meaningless the body of case law on the withdrawal from or rescission of a stipulation. The law in Illinois is well settled that: “Parties will not be relieved from a stipulation in the absence of a clear showing that the matter stipulated is untrue, and then only when the application is seasonably made.” Brink v. Industrial Com. (1938), 368 Ill. 607, 609, 15 N.E.2d 491, 492; In re Estate of Moss (1969), 109 Ill. App. 2d 185, 192-93, 248 N.E.2d 513, 516.

In the case at bar, the matter agreed to by the parties, as expressed in the trial judge’s November 9, 1982, order allowing the defendant’s motion to suppress, was the application of that portion of the implied consent statute in Illinois disallowing the taking of blood tests from one unable to give consent. This matter was untrue. The relevant statutory provision then in effect did not require specific oral or written consent. In addition, the State’s filing of the motion to vacate on December 3,1982, was “seasonably made.”

Vacating the suppression motion will restore the parties to the status quo ante. Thus, no one is prejudiced or harmed by the vacation of the erroneously entered suppression order.

Accordingly, the order of the circuit court of Peoria County denying the State’s motion to vacate the court’s earlier order suppressing the results of the defendant’s blood alcohol test is reversed, and this cause is remanded to the trial court for further proceedings.

Reversed and remanded.

BARRY and SCOTT, JJ., concur.


author: PRESIDING JUSTICE STOUDER JUSTICE BARRY,

text:
    BERNARD VASQUEZ, Petitioner-Appellant, v. THE MUNICIPAL OFFICERS ELECTORAL BOARD et al., Respondents-Appellees.
    Third District
    No. 3—83—0166
    Opinion filed June 24, 1983.

      BARRY, J., concurring in part and dissenting in part.
    Burton S. Odelson and Mark H. Sterk, both of Odelson & Associates, Ltd., of Evergreen Park, for appellant.
    Franklin D. Burkey, of Joliet, for appellees.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This action was commenced in the circuit court of Will County by Bernard Vasquez seeking to review a decision of the electoral board for the village of Steger pursuant to section 10 — 10.1 of the Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 10 — 10.1). By written objection presented to the electoral board, Bernard Vasquez objected to the nomination of Edward C. Grollemond, Richard J. Porter, Kenneth B. Shipley and Clarence T. Helsel seeking village offices under the name and style of the “Action IV Party” with respect to an election to be held on April 12, 1983. The objection requested the electoral board to strike the nominating petitions of such persons and to prevent such persons from being listed on the ballot either individually or as members of the Action IV Party. The electoral board for Steger denied the objections and upon review by the circuit court of Will County the action of the electoral board was approved. On appeal to this court, we granted an expedited briefing and hearing schedule and by our memorandum of decision, dated March 18, "1983, one Justice dissenting, we reversed the orders of the circuit court and electoral board directing that the names of the individuals should appear on the written ballot but without the designation “Action IV Party” or any other party designation. In said memorandum order we also indicated opinions of the court would follow.

The facts are substantially undisputed. The appellees nomination petitions requested that they be designated as “Action IV Party,” a new political party for the village of Steger.

The Action Party has run candidates for election for many years in the village of Steger under the label “Action Party” and Action Party II, III and now VI. The same group of people headed by Louis Sherman, village president, have been involved with this party since its inception in 1977, as testified to by all three members of the electoral board. The Action Party, in 1977 ran a ticket for the municipal offices of village president, clerk and trustees; Louis Sherman ran for president, William Hodge for clerk, Milford Bisping and Edward C. Grollemond for trustees. This ticket won the election and received more than 5% of the vote cast.

At the next ensuing village election in April 1979, the Action Party again ran candidates for office. This time only three trustees were up for election, Edward C. Grollemond and Richard J. Porter being two of the candidates of said Action Party at that time. The Action Party filed their petitions as a “New Political Party” under the name Action II using the roman numeral II, a number, along with the party name, “Action Party.”

In 1981, the last municipal election in Steger, the incumbent mayor (Sherman), clerk (Hodge) and trustee (Bisping) all ran for reelection under the same party name, “Action Party,” using the roman numeral III after the party name. It is significant to note that all three party members who have run under the “Action” designation in 1977 and 1981 were the members of the electoral board below that decided the issues in. this case. All three members testified, under oath, that the roman numeral designation after the party name signified that it was the second, third and now the fourth time the Action Party was running candidates for office.

The nomination papers objected to below reveal that Edward C. Grollemond and Richard J. Porter (who have previously run under the “Action Party” label) are running for re-election along with Kenneth B. Shipley and Clarence T. Helsel, as the “Action IV Party” candidates. The Action Party is not chartered or incorporated. It has neither officers nor members as such and no bylaws or rules. There is some continuity of personnel associated with the party label in the village elections occurring since 1977 but no activities of the group in between such village elections.

This controversy arises because, according to the appellant, statutory provisions applicable to the election have been violated. Section 10 — 2 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 10 — 2) provides in pertinent part:

“A political party which, at the last election in any congressional district *** municipality or other political subdivision or district *** polled more than 5% of the entire vote cast within . such territorial area or political subdivision, as the case may be, has voted as a unit for the election of officers to serve the respective territorial area of such district or political subdivision, is hereby declared to be an ‘established political party’ within the meaning of this Article as to such district or political subdivision.”

Section 10 — 2 further provides that once a party has become an established party by receiving more than 5% of the votes at an election within a political subdivision, such party’s candidates shall thereafter be nominated by primary procedures or caucus procedures described in section 7 — 1 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 7 — 1). Section 10 — 1 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 10 — 1) provides that candidates for election by established parties may not be nominated under the provisions of article 10 of the Election Code, its provision for nomination applying only to new parties.

In this case it is undisputed the “Action Party” was a new party in 1977 receiving more than 5% of the vote for village candidates at that election. It is also undisputed that “Action II Party” and “Action III Party” received more than 5% of the vote cast for village officers in the elections of 1979 and 1981, even though in each of those years the parties so designated petitioned for nomination as a new party.

The initial question to be resolved is whether “Action IV Party” is the same party which was designated “Action III Party” in 1981 and in prior years under the Action Party label. We hold that such party is the same party and does not become a new party in terms of label designation merely by adding a number which according to the witnesses, merely designated the number of times the party had been on the ballot. The defendants for all practical purposes, concede the “Action IV Party” was not a new party because under the statutory definition it as a party had received more than 5% of the total vote cast at the next preceding election for village officers and was thereby an “established party” as described in the statute.

The appellees suggest they are not an established party because they are not organized as a party. However, the statutes neither refer to or require that parties either new or established be organized in any particular form, and if the association form which the individuals have adopted in their desire to associate as a new party is sufficient for that purpose it is also sufficient for the purpose of becoming an established party when the group receives the percentage of the vote designated in the statute. If continuing formal organization were required, then the statute would be meaningless because the general purpose and intent of the statute could easily be circumvented either by not organizing or changing the formal organization structure at each election. Nor do we believe the statute can be said to apply only to major parties meaning either the Republican or Democratic party. There is obviously from a reading of the statute, no such exception described therein and indeed no reason appears in the Act either why it would be so limited or why it should not apply to all parties once they have received the substantial percentage of votes cast required by the statute.

The statute, section 10 — 2 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 10 — 2), provides that nominations by “established parties” may not be made under article 10 of the Election Code but can only be made under article 7 of the Election Code. It is undisputed that article 7 of the Election Code was not complied with, and the only provision of the Election Code which the appellees sought nomination under was article 10 and this they were not entitled to do.

Having determined that the appellees were not properly nominated as candidates of the “Action IV Party,” the question remains as to whether the nominations are completely void or whether it is only the party designation which is invalid and we hold the latter is true. In our opinion the nominating petitions were signed by sufficient voters to entitle the appellees to be placed on the ballot as individuals, and the statutory prohibition against designating themselves as a new party when they are not is amply affectuated by striking the party designation. See Doty v. Representation For Every Person (REP) Party (1981), 97 Ill. App. 3d 316, 422 N.E.2d 1156.

For the foregoing reasons the judgment of the circuit court of Will County and the decision of the electoral board of the village of Steger are reversed to the extent they permit the designation of the appellees as the “Action IV Party.” The appellees as individuals, without any party designation, may be placed on the written ballot.

Reversed in part, affirmed in part.

ALLOY, J., concurs.

JUSTICE BARRY,

concurring in part and dissenting in part:

I agree with the majority to the extent that it allowed the names of the respondent candidates to appear on the official ballot. I do not agree that the party designation “Action IV Party” was an improper designation for the respondent party; and I, therefore, dissent from that portion of the majority opinion which reverses the decision of the electoral board to permit respondents’ designation as “Action IV Party” to be included on the ballot.

First, some of the history of the matter in the village of Steger before us should be again detailed. Respondent William Hodge first ran for village clerk under the “Good Government” party label in 1969. He ran to succeed himself in 1973 under the label “Better Government,” as did Louis Sherman and Marcia Piacentini for village president and trustee, respectively. Hodge again ran for clerk in 1977 under “Action Party.” The latter ticket was also comprised of Louis Sherman for village president, Marcia Piacentini, Don Paradiso and Garland Love for trustees. At the ensuing election in 1979, when three trustees were to be elected, three candidates petitioned using the party label, “Action II Party” — Bernard Vasquez, the petitioner herein, Edward C. Grollemond and Richard J. Porter, respondents herein; and in 1981, five candidates for the village offices — Sherman, Hodge, Milford Bisping, Alvin Harcus and “Red” Loman — petitioned under the party name “Action III Party,” and were unopposed. Then, in 1983, four candidates for trustee filed petitions, again as a new political party named “Action IV Party.” Of the four 1983 “Action IV Party” candidates, two had not previously been candidates and had not had any association with any of the aforementioned parties.

Though the party labels bear obvious similarities, they are clearly distinguished by the insertion of Roman numerals “II,” “III” and “IV” in between the words “Action” and “Party,” not “after the party name” as suggested in the majority opinion. Mr. Vasquez testified that the citizens of Steger associate the Action Party with Lou Sherman and Bill Hodge “because they are the founders of such parties.” (Emphasis added.) It is also important to note that no candidate filed in 1983 using the party designation “Action III Party” or, for that matter, any other party label which used the words “Action Party.”

As I understand article 10 of the Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 10 — 1 et seq.), the purpose is to provide a means for those choosing to associate politically to place a slate of candidates on the ballot and, at the same time, to prevent confusion between the name used by those so associated and that of an established party. We must also keep in mind that, like the right to vote, access to the ballot as a candidate is a basic political right that should not be unduly restricted.

The majority seems to base its holding upon its conclusion that respondents “for all practical purposes” concede that “Action IV Party” was not a new party because it received more than 5% of the total vote at the “next preceeeding [sic] election.” I have searched the briefs and the record and can find no such concession by the respondents. The respondents do not deny, of course, that some of them in the past have used the “Action” designations, and respondents do state that “Action III Party” was an established political party after the 1981 village election because “Action III Party” received more than 5% of the vote in the 1981 election. And, respondents stated during oral argument before this court that “Action IV Party” contains the name in part of “Action III Party,” which had been an established political party. These admissions do not, in my opinion, amount to a concession that “Action IV Party” was an established party; and they do not detract from respondents’ position in this appeal. Further, as indicated by the majority, the record is totally devoid of any party structure or activity of any kind by the respondents between general elections.

When a party is established under the 5% rule in one election year and it fails to field any candidate for purposes of the subsequent election, then that party ceases to exist as an established political party. (Foster v. Municipal Officers Electoral Board (1983), 113 Ill. App. 3d 721, 447 N.E.2d 990.) Accordingly, “Action III Party” ceased to be an established party when it failed to nominate candidates for the 1983 municipal primary (as did “Action Party” in 1979 and “Action II Party” in 1981). To hold otherwise would allow for independent parties and splinter groups to remain “alive” indefinitely.

In Foster, the issue before us was squarely addressed, and, in my opinion, correctly determined. There, the “Countryside Independent Party” elected ward aldermen in the city of Countryside in 1981. The party and its candidates received more than 5% of the vote cast. In 1983, a party named the “Independent Party of Countryside” petitioned as a new party. Another “Independent Party of Countryside” had elected candidates in 1979. The reviewing court held that the “Independent Party of Countryside” had been an established political party after the 1979 municipal election, but then ceased to exist as an established political party when it slated no candidates in the 1981 primary. Hence, the “Independent Party of Countryside” was a “new” party in 1983, and nomination by petition for the general election was proper.

The appellate court in Foster also held that the name “Independent Party of Countryside” was not the same as the name “Countryside Independent Party” within the meaning of section 10 — 5(2) of the Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 10 — 5(2)), which provides that a new party “shall not bear the same name as, nor include the name of any established political party ***.” The fact that the words were in different order in one name than in the other was sufficient to make the names different. Analogizing to Foster, I am convinced that the change from “Action III Party” to “Action IV Party” was likewise sufficient to make the names different. The fact that some of the individual members of “Action III Party” created and became members of the “Action IV Party” is not controlling. In 1983 “Action IV Party” was a new political party and, as in Foster, nomination by petition was proper.

In addition it is clear in the instant case that there was no confusion among the electorate since only one slate of nominees used the words “Action Party” in their party name. Further, the absence of confusion was admitted in uncontradicted testimony before the electoral board and by counsel for the petitioner and counsel for the respondents in oral argument before this court. In this connection it is interesting to note that the Foster court thought the similarity in names was confusing but that the legislative purpose of section 10 — 5 was not clearly expressed to be to prohibit confusion.

I believe that section 10 — 5(2) is primarily intended to prevent a new political party from trading on the name of an established party — particularly one of the major parties. An example of the sort of abuse that the statute seeks to prevent was demonstrated in Doty v. Representation for Every Person (REP) Party (1981), 97 Ill. App. 3d 316, 422 N.E.2d 1156. There, the word “REP” was determined to be within the proscription of the statute because it was readily susceptible of interpretation as “Republican,” one of the major established parties.

By contrast, I find nothing inherently confusing in the use of “Action IV Party” as a party designation for the 1983 municipal election in the village of Steger — certainly it cannot be said that the instant case falls within the rule of Doty. Finally, it is common knowledge that smaller units of government in Illinois often have difficulty attracting candidates, and can ill afford costly primaries, particularly when no candidates seek nomination. The statutory scheme of the Election Code, as discussed herein, benefits such governmental entities as well as the individuals who seek to serve them. The general election petition procedure has become standard in local elections. I believe the statutory purpose is not violated when, as here, no confusion or advantage results.

For the foregoing reasons, I would affirm the decision of the electoral board.


author: JUSTICE WELCH

text:
      In re ESTATE OF DAVID GENE McMILLAN, a Disabled Adult-(St. Louis University Hospitals, Petitioner-Appellant, v. Estate of David Gene McMillan, Respondent-Appellee—(The Department of Public Aid, Intervenor-Appellee)).
    Fifth District
    No. 82—611
    Opinion filed July 7, 1983.
    Terry J. Galganski, of Whaley and McAuliffe, of Clayton, Missouri, for appellant.
    J. Mark Maclin, of DuQuoin, for appellee Estate of David Gene McMillan.
    Neil F. Hartigan, Attorney General, of Springfield (Kathleen J. Lien, Assistant Attorney General, of counsel), for appellee Illinois Department of Public Aid.
   JUSTICE WELCH

delivered the opinion of the court:

David Gene McMillan, of Dowell, Illinois, was severely injured in an automobile accident on July 25, 1978, when he was 16 years old. He was riding home from a softball game in a car driven by Kevin Toler when it was struck by a vehicle driven by Charlotte Pedigo. Pedigo, an uninsured motorist with no assets, was convicted for driving while intoxicated arid sentenced to a term of imprisonment at the Dwight Correctional Center. David suffered brain-stem injuries which rendered him a spastic quadriplegic.

David was adjudicated a disabled person on March 17, 1981, and his mother, Maribel McMillan, was appointed his guardian. At a hearing on August 31, 1982, the trial court viewed a portion of the ABC television program “20/20” which showed the extent of the youth’s injuries while he was at the Rehabilitation Institute of Chicago. The court also heard testimony concerning the accident and the proposed insurance settlement with Kevin Toler, who was insured by the Country Mutual Insurance Company. Although Toler’s uninsured motorist coverage had maximum limits of $10,000 liability and $5,000 medical, Country Mutual offered a $50,000 settlement after the comparative negligence doctrine was adopted in Illinois. Maribel McMillan, as David’s guardian, testified that she would accept the settlement, subject to the court’s approval. Accordingly, in an order dated August 31, 1982, the circuit court of Jackson County approved the proposed settlement and ordered payment of $50,000.

A subsequent hearing was held on September 28, 1982, to adjudicate claims filed against the estate for medical expenses incurred as a result of David’s treatment. St. Louis University Hospitals filed liens totaling $22,090.74 for hospital services and supplies between July 26 and October 12, 1978, pursuant to section 1 of “An Act providing for a lien for nonprofit hospitals ***” (Ill. Rev. Stat. 1981, ch. 82, par. 97). The Illinois Department of Public Aid filed liens of $91,661.73 for medical payments made between July 25, 1978, and March 12, 1982. The Department of Public Aid’s liens were filed against the estate pursuant to section 11 — 22 of the Illinois Public Aid Code (Ill. Rev. Stat. 1981, ch. 23, par. 11 — 22).

From the $50,000 settlement, the trial court ordered payment of $200 for guardian ad litem fees, $11,500 for attorney fees on behalf of the estate, $6,627 for payment of the liens of St. Louis University Hospitals, $9,166.77 for payment of the public aid liens and $22,506.83, plus interest, for Maribel McMillan as guardian of her son’s estate. St. Louis University Hospital has appealed.

On appeal, the hospital raises two issues. First the hospital asserts that the trial court erred in its adjudication of the hospital’s lien because the statutory provisions concerning hospital liens mandate an adjudication of its lien in this case equal to $16,666.67, one-third of the settlement proceeds collected by the McMillan estate. (Ill. Rev. Stat. 1981, ch. 82, par. 97.) Secondly, the hospital argues that the trial court abused its discretion in its adjudication of Illinois Department of Public Aid liens based upon the evidence presented. In addition to the estate’s brief, responding to each of these issues, the Illinois Department of Public Aid has filed a brief, through the Attorney General of Illinois, as intervenor-appellee. The Department argues that the adjudication of its lien was correct and that St. Louis University Hospital has no standing to challenge its lien. Because we find the hospital’s first argument to be dispositive of this appeal, we need not address the other arguments raised.

The hospital’s-first assertion is that the trial court erred in its adjudication of its lien because a lien equal to one-third of the settlement proceeds is mandated by statute. (Ill. Rev. Stat. 1981, ch. 82, par. 97.) The statute provides:

“Every hospital organized for nonprofit, or hospital maintained and operated entirely by a county, rendering service in the treatment, care and maintenance, of such injured person shall have a lien upon all such claims and causes of action for the amount of its reasonable charges at ward rates in such hospital organized for nonprofit, or hospital maintained and operated entirely by a county up to the date of payment of such damages.
Provided, however, that the total amount of all liens hereunder shall not exceed one-third of the sum paid or due to said injured person on said claim or right of action, and provided further, that said lien shall in addition include a notice in writing containing the name and address of the injured person, the date of the injury, the name and address of the hospital organized for nonprofit, or hospital maintained and operated entirely by a county, and the name of the party alleged to be liable to make compensation to such injured person for the injuries received, shall be served on both the injured person and the party against whom such claim or right of action exists.
Service shall be made by registered mail or in person.” (Ill. Rev. Stat. 1981, ch. 82, par. 97.)

Under this statute, the hospital contends it is entitled to payment of $16,666.67, instead of the $6,627 awarded by the trial court. The hospital reasons that the statute requires use of a “mechanical” one-third formula with no court discretion except to reduce a hospital lien in excess of one-third of the sum paid or due the injured person to an amount equal to one-third of the sum paid. See Wheaton v. Department of Public Aid (1981), 92 Ill. App. 3d 1084, 416 N.E.2d 780; O’Donnell v. Sears, Roebuck & Co. (1979), 71 Ill. App. 3d 1, 388 N.E.2d 1073.

In O’Donnell, a 16-year-old boy suffered a broken neck and was rendered quadriplegic when he dove from a water-slide into an above-ground swimming pool. Before trial, plaintiff reached a settlement with the manufacturer and retailer of the slide, with the plaintiff to receive a lifetime annuity of $22,000 per year, with 3% increments compounded annually. A portion of the boy’s medical care had been provided by Oak Forest Hospital, operated by the Health and Hospitals Governing Commission of Cook County. A balance of $10,898.75 remained due, so the hospital asserted a lien pursuant to section 1 of “An Act providing for a lien for nonprofit hospitals ***” (Ill. Rev. Stat. 1977, ch. 82, par. 97) and perfected its lien by sending notice by registered mail to all parties. The trial court ordered that the plaintiff pay the hospital $500 out of the first year annuity payments and continued adjudication of the liens for one year. The hospital appealed.

The appellate court affirmed and remanded, noting that in order for the hospital to fully enforce its lien, the plaintiff would have to receive or have due him about $33,000; therefore, since the plaintiff’s right to receive payment was conditioned upon his life, the hospital’s claim for full enforcement of its lien was premature. The appellate court went on to state, in dicta, that when considering a hospital lien, “the court is only charged with the responsibility of adjudicating and enforcing hospital liens pursuant to a mechanical ‘one-third of proceeds’ formula,” with no trial court discretion. O’Donnell v. Sears, Roebuck & Co. (1979), 71 Ill. App. 3d 1, 13, 388 N.E.2d 1073, 1083.

In Wheaton v. Department of Public Aid, the plaintiff, injured in an automobile accident, settled his case for $10,000. After treatment, a balance of $2,366.67 was due to the Swedish American Hospital, which filed a lien for that amount. The trial court ruled that the hospital’s lien could not be reduced and plaintiff appealed. The appellate court affirmed, holding that as long as the lien of a hospital does not exceed one-third of the settlement, the trial court has no authority to reduce the lien. Wheaton v. Department of Public Aid (1981), 92 Ill. App. 3d 1084, 1086, 416 N.E.2d 780, 782.

Since O’Donnell and Wheaton, this statutory provision has been discussed in In re Estate of Enloe (1982), 109 Ill. App. 3d 1089, 441 N.E.2d 868. Shannon Enloe, under the age of two during medical treatment, was injured in an automobile accident when she was eight days old. A hospital lien was entered by the trial court in the amount of $11,627.91. The appellate court observed that liens had been filed only in the amount of $11,043.06. The hospital argued, citing O’Donnell, that the appellate court could not reduce the lien because the only justification for reduction of a hospital lien is if it exceeds one-third of the total amount of recovery. The appellate court rejected this argument and affirmed the trial court as modified. The court held that the O’Donnell limitations of the power to reduce liens did not allow the trial court to grant a lien over the amount properly filed by the hospital. In re Estate of Enloe.

In the case at bar, the hospital filed liens in the amount of $22,090.74. It has never been argued in the trial court or on appeal that the liens were not properly filed, or that the charges were unreasonable or not actually incurred. A settlement was reached in the amount of $50,000, one-third of which would be $16,666.67. The McMillan estate asserts that O’Donnell, Wheaton and Enloe are factually distinguishable because the lien amount in each case was actually less than one-third of the total settlement. In this case, the estate argues, the lien was for more than one-third of the settlement. We find this argument to be unpersuasive. The point made by the hospital is not that the court must always award one-third of any settlement, but that once a lien is properly established, the court may only reduce the lien when it exceeds one-third of the settlement. O’Donnell, Wheaton and Enloe support this conclusion and accordingly, we hold that the trial court’s order, reducing the lien of St. Louis University Hospitals to $6,627 was erroneous in light of the plain language of section 1 of “An Act providing for a lien for nonprofit hospitals ***” (Ill. Rev. Stat. 1981, ch. 82, par. 97).

Because the trial court’s adjudication of the hospital lien was erroneous, we reverse the trial court’s order and remand for further proceedings consistent with this order.

Reversed and remanded.

JONES and EARNS, JJ., concur.


author: JUSTICE McGLOON

text:
    AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO et al., Plaintiffs-Appellees, v. WALLACE A. ERICKSON et al., Defendants—(Wallace A. Erickson and Wallace A. Erickson & Co. et al., Defendants-Appellants).
    First District (1st Division)
    Nos. 82—1546, 82—1663 cons.
    Opinion filed June 20, 1983.
    Rehearing denied July 25, 1983.

      Robert P. Sheridan and John C. Vojta, both of Sapoznick, Sheridan & Freidin, of Chicago, for appellants.
    Michael R. Turoff, Arthur L. Klein, and Michael J. Ranallo, all of Arnstein, Gluck & Lehr, of Chicago, for appellees.
   JUSTICE McGLOON

delivered the opinion of the court:

This is an appeal by defendants (Wallace Erickson, Gwendolyn B. Erickson and Wallace A. Erickson & Co.) from an order granting plaintiffs’ (American National Bank and Trust Company of Chicago, Kenneth C. DeGon and Ruth Getz) motion for summary judgment in the amount of $4,546,618. The issues presented for review are whether the trial court erred in granting summary judgment for plaintiffs and whether the trial court erred in measuring damages.

We affirm.

Initially, we note that the separate appeals filed by Wallace A. Erickson (Wallace) and Wallace A. Erickson & Co. (the Company), and Gwendolyn Erickson (Gwendolyn) have been consolidated because they relate to the same summary judgment order.

In 1969, Wallace and Gwendolyn each owned 50% of the outstanding common stock of the Company. American National Bank loaned the Company $500,000 which was personally guaranteed by plaintiffs’ decedent, William Getz. On May 2, 1969, Getz entered into a written agreement (agreement) with Wallace and Gwendolyn. The agreement provided that Getz loan Wallace 17,000 shares of Teledyne Corporation common stock for a period of two years. As security for the loan, all the outstanding shares of Erickson & Co. were pledged to Getz. During the two-year period, Wallace enjoyed full power to dispose of the shares restricted only by the requirement that he retire the $500,000 American National Bank loan upon any transfer or disposition of the shares.

The repayment provision of the agreement is particularly relevant to this appeal. Paragraph 1(g) provided:

“On or before two (2) years, [Wallace] shall deliver to Getz *** (1) stock certificates representing the number and class of shares of Teledyne (or such other corporation into which shares of Common Stock of Teledyne shall have been converted) which Getz would then hold had he (aa) owned *** 17,000 shares of Common Stock of Teledyne on [May 2, 1969] and (bb) had he not transferred any said shares or any non-cash distributions *** and (2) an amount of money *** equal to the total cash dividends, if any that Getz would have received ***.’’

The agreement further specified that:

“It is the intention of the parties with respect to the foregoing that on or before two (2) years after the date of this Agreement [Wallace] shall deliver to Getz shares of stock and cash so as to replace Getz in exactly the same position with respect to the [17,000] shares loaned pursuant to this Agreement as he would be had he had not loaned the shares to [Wallace] and had he continued to have said [17,000] shares of Common Stock of Teledyne and all distributions made with respect thereto, but without interest.”

Wallace failed to deliver the stock certificates and cash dividends, as required, on May 2, 1971. The following day, Wallace wrote Getz and acknowledged his default. He also proposed a modification of the agreement, whereby he agreed to repay the loaned Teledyne shares and to transfer to Getz the outstanding stock of Erickson & Co., which had previously been pledged as security. The modification was accepted. In 1974, Wallace repaid 1,000 shares of loaned Teledyne stock, leaving 17,035 shares still due and owing (18,035 shares was owed to Getz on May 2,1971, by virtue of two 3% stock splits).

In January 1976, Getz commenced this action by filing a verified complaint seeking repayment of the loan. The present plaintiffs were substituted after Getz died and his estate was closed. On May 7, 1976, defendants filed a verified answer which admitted all of the material allegations of facts pledged in plaintiffs’ verified complaint. Thereafter, plaintiffs moved for summary judgment based upon defendants’ verified answers. Defendants were granted leave to amend their answer. The amended answer denied the previous admissions and asserted various affirmative defenses.

After a hearing, the trial court granted plaintiffs’ motion for summary judgment. In July 1981, judgment was entered against Wallace and Erickson & Co. and plaintiffs were awarded damages of $5,046,618.70. In determining the damages the trial court multiplied the value of the stock as of the date of the order ($258) by 31,940 shares. (The shares increased to 31,940 due to various stock splits.) Finally, the trial court reduced the award by $500,000 to account for the shares of Erickson & Co. stock previously conveyed to Getz pursuant to the modification agreement. The court further ordered that appropriate entries be made in the books of Erickson & Co. to reflect that plaintiffs were the legal holders of 100% of its outstanding shares.

First, defendants contend that the trial court erred in entering summary judgment for plaintiffs. To support their contention, defendants argue that because their amended answer superseded their original verified answer, the original answer cannot be relied upon to support plaintiffs’ motion for summary judgment. We disagree.

As a general rule, an amended pleading which is complete in itself, ordinarily supersedes the prior pleading. (Precision Extrusions, Inc. v. Stewart (1962), 36 Ill. App. 2d 30, 183 N.E.2d 547.) However, a well-recognized exception exists where the original pleading is verified. (Yarc v. American Hospital Supply Corp. (1974), 17 Ill. App. 3d 667, 307 N.E.2d 749; Burdin v. Jefferson Trust & Savings Bank (1971), 133 Ill. App. 2d 703, 269 N.E.2d 340.) In such cases, the verified pleading remains part of the record. (Yare; Burdin.) Moreover, any admissions which are not the product of mistake or inadvertence, contained in the original verified pleading, are binding judicial admissions. (Yarc; Burdin.) Furthermore, they remain binding upon the pleader even after an amendment. Farwell Construction Co. v. Ticktin (1978), 59 Ill. App. 3d 954, 376 N.E.2d 621.

In their original verified answer, defendants admitted all of the material allegations which were necessary to support summary judgment for plaintiffs. In their motion for leave to amend their answer, defendants averred that their original answer failed to contain certain allegations “due to inadvertence.” However, the amended answer failed to disclose the original sworn admissions were a product of inadvertence. Here, as in Yare, defendants merely abandoned the sworn admissions contained in their original answer without sufficient explanation. (Tare.) Thus, we conclude that the trial court properly considered the judicial admissions in defendants’ original verified answer. The judicial admissions were conclusive as to defendants’ liability and summary judgment was properly granted.

Second, defendants contend that the trial court erred in measuring damages. They argue that the proper measure of damages is the value of the shares as of the date of the breach. Again, we must disagree.

Paragraph 1(g), which is set forth above, provided that Wallace repay the loan of Teledyne shares by delivering to Getz stock certificates of Teledyne Corporation or such other corporation into which the loaned Teledyne shares were converted. Wallace was required to deliver to Getz the equivalent number of shares which he would have held, on the repayment date, had he never transferred the Teledyne shares including any stock dividends or splits plus cash representing the cash dividends which were distributed. The agreement specifically provided that “it is the intention of the parties” that Getz receive “*** shares of stock and cash so as to replace Getz in exactly the same position *** as he would be had he not loaned the shares ***.”

The proper measure of damages in a breach of contract action is the amount which will place an injured party in the position he would have been had the contract been performed. Menicocci v. Archer National Bank (1978), 67 Ill. App. 3d 388, 385 N.E.2d 63; Kemp v. Gannett (1977), 50 Ill. App. 3d 429, 365 N.E.2d 1112.

In the instant case, the trial court awarded plaintiffs a sum representing the value of the loaned shares as of the date which the court entered judgment. A lesser award would have enabled defendants to benefit from breaching the agreement. It would also have deprived plaintiffs of the increased value of the shares which they would have received had the agreement been performed. We therefore find that the trial court’s measure of damages was proper.

Finally, Gwendolyn argues that the trial court erred by disposing of her interest in the Company’s outstanding common stock since no relief was sought against her. However, the trial court’s order provided that defendants receive a credit for the value of shares previously conveyed to Getz pursuant to the modification agreement of May 3, 1971. It also provided that Erickson & Co. make the appropriate entries on its records to reflect that plaintiffs were the legal holders of the outstanding stock of the Company. The trial court did not dispose of Gwendolyn’s interest. The actual transfer took place on May 3, 1971, when Wallace transferred to Getz outstanding common stock of Erickson & Co.

Gwendolyn argues that Wallace had no authority to deal with her interest. However, this issue was never raised before the trial court and cannot be argued for the first time on appeal. Kaufman & Broad Homes v. Allied Homes, Inc. (1980), 86 Ill. App. 3d 498, 408 N.E.2d 91.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

GOLDBERG and CAMPBELL, JJ., concur.