author: MR. JUSTICE DRUCKER McCORMICK, J.,

text:
    Samuel Nineberg and Sam Onischuk, as Co-Conservators of the Estate of Nick Onischuk, an Incompetent, Plaintiffs-Appellants, v. County of Cook, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 50,928.
    First District, Fourth Division.
    September 11, 1967.
    McCORMICK, J., dissenting.
    Arthur S. Gomberg, of Chicago (Samuel Nineberg, pro se, of counsel), for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Edward J. Hladis, Chief of Civil Division, and Theodore M. Swain, Assistant State’s Attorney, of counsel) , for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal from the dismissal of plaintiffs’ third amended complaint in which plaintiffs claimed damages for the alleged negligent issuance by the Registrar of Deeds of a new Torrens Certificate of Title.

Plaintiffs’ third amended complaint alleged the following facts:

Plaintiffs’ incompetent, Nick Onischuk, while competent and a bachelor, acquired the subject property (which was vacant) in 1929 and was issued a Torrens Certificate of Title showing ownership in himself. In July 1945 he was adjudicated incompetent in Cook County and committed to the Manteno State Hospital where he presently resides. On June 21, 1946, plaintiffs were appointed coconservators of his estate. On June 26,1946, a tax foreclosure proceeding for the nonpayment of general taxes on the subject property (which was still vacant) was filed in the Circuit Court of Cook County. No summons was personally served on the plaintiffs or on the incompetent. An affidavit was filed reciting that a diligent search had been conducted for Nick Onischuk, the necessary publication had been made and lis pendens notice of the foreclosure was duly filed. In July 1946 plaintiffs filed an inventory of the incompetent’s estate, listing the subject property as an asset thereof, but neither this document nor the fact of their appointment as coconservators was ever registered in Torrens.

The foreclosure sale occurred in December 1946. The assignee of the purchaser of the subject property obtained a tax deed in March 1949 by order of court. In that proceeding an affidavit was filed reciting that diligent search had been made for the record owner. Upon order of court the Registrar of Titles thereafter issued a new certificate of title. The original certificate, issued to Nick Onischuk in 1929, was never surrendered. Plaintiffs allege that neither they nor the incompetent received notice of any of the aforesaid proceedings.

Defendant’s motion to strike and dismiss plaintiffs’ third amended complaint was allowed, from which plaintiffs appeal.

Plaintiffs contend that there was a duty upon the registrar to conduct an investigation into the propriety of the court order by which the registrar was directed to issue a new certificate of title; that his failure to do so constitutes an omission, mistake or misfeasance of the registrar; and that therefore they are entitled to damages from the defendant. No question of contributory negligence is involved.

It is undisputed that plaintiffs cannot now attack the validity of the newly issued tax deed. Ill Rev Stats, 1965, c 30, § 86. Therefore, alleged improprieties in the proceedings in which the court ultimately directed the registrar to issue a new certificate of title are of no relevance in this case. The sole issue is whether the registrar is required to investigate the propriety of court orders which direct him to issue new certificates of title. We do not believe that it was the intention of the legislature to impose such a cumbersome burden upon the registrar. The fact that the original certificate had never been surrendered is insufficient to place the registrar on notice that the court order is improper, since the registrar is empowered by statute (Ill Rev Stats, 1965, c 39, § 120) to issue a new certificate under that circumstance upon order of court. That statute provides in relevant part:

A tax deed of registered land . . . shall have only the effect of an agreement for the transfer of title upon the register, and may be filed in the registrar’s office, and a transfer effected as in case of other deeds of conveyance.
But no certificate of title shall be issued thereon, except upon the surrender and cancellation of the outstanding certificate of title, or upon the order of court. . . . (Emphasis supplied.)

We find that the registrar issued a new certificate of title in complete accordance with the legislative mandates and therefore, as a matter of law, was not guilty of any “omission, mistake or misfeasance.” Therefore, the plaintiffs’ third amended complaint was properly stricken. The order appealed from is affirmed.

Affirmed.

ENGLISH, P. J., concurs.

McCORMICK, J.,

dissenting:

I must respectfully dissent to the majority opinion. The claim is based on chapter 30, section 138 of Illinois Revised Statutes 1965, which is quoted and which provides that “Any person sustaining loss or damage through any omission, mistake or misfeasance of the registrar,” shall be entitled to recover damages sustained.

The cases in Illinois under this Act are few. Hoffman v. Schroeder, 38 Ill App2d 20, 186 NE2d 381, was a case involving the rights of a mortgagee who accepted a mortgage signed by two persons, one who procured registration of his title by forgery, and the other an imposter who impersonated one of the true owners. The court held that the interest in the property acquired by the mortgagee could not be defeated, then discussed the question as to whether there could be a recovery under the indemnity clause (Ill Rev Stats 1961, c 30, § 138). The court pointed out that an indemnity fund is provided for the satisfaction of claims for damages sustained through omission, mistake or misfeasance by a registrar or his agent in the performance of their duties, and stated:

“The fund thus derived from those who register is in the nature of insurance against loss in instances covered by the Act which include the one before us. It is true that Avondale’s own actions played a part in making possible its loss, but Section 138 speaks of loss suffered through the Registrar’s mistake and does not provide for the tempering of the consequences of such mistake by the mistake of another.”

On rehearing and in a supplemental opinion filed after petition for rehearing, the court said:

“As we pointed out in our opinion, the indemnity fund is in the nature of insurance against mistakes of the registrar and the premium is paid by the applicant for Torrens title. We regard this in the nature of a contractual liability. ... To import into this type of transaction the doctrine of contributory negligence, whereby gross errors of a registrar might be completely cancelled out by some slight mistake on the part of an insured, could discredit the whole system and destroy it as an effective means of assuring titles in this county. The registrar has made the mistake and has a fund to pay for it.”

It is worthy of note that some of the statutes providing for indemnity funds upon registration under the Torrens system do provide that recovery can be had only where the person making the claim has neither acted fraudulently nor been negligent. California Torrens Land Transfer Act (1915 Stats, p 1949, § 105). See Gill v. Johnson, 21 Cal App2d 649, 69 P2d 1016. The same provision is contained in the Massachusetts statute (MGLA ch 185, § 101). See Overly v. Treasurer and Receiver General, 344 Mass 188, 181 NE2d 660.

Other acts are similar to the Illinois Act. The Illinois legislature had the right to determine whether or not the requirement of lack of negligence on the part of the claimant should be essential to recovery. The legislature, by omitting the negligence requirement, determined that the question of negligence was not involved in any claim brought against the indemnity fund. A reviewing court has no power to read into the Act something which the legislature deliberately omitted.

In the instant case, in spite of the misapprehension of the defendant in its brief, there is no collateral attack upon the judgment, nor could there be. All that is sought is indemnity for loss allegedly suffered by the plaintiffs through an omission of the registrar, and the recovery is to be from the indemnity fund. The Illinois Act provides for the method of registering title under the Torrens system. Ill Rev Stats 1965, c 30, §§ 55 through 70. The registration is perfected by a decree of a court of competent jurisdiction. Any order of the court requiring the issuance of a deed was not and could not be any more effective than the order of the court in the original registration proceeding.

In Jones v. York County, Nebraska, 26 F2d 623, the court held that where an infant was the claimant under the indemnity clause, while there could be no collateral attack made upon the decree, a recovery restricted to the indemnity fund constituted no such attack, and recovery was allowed from the indemnity fund.

In Gill v. Johnson, 21 Cal App2d 649, 69 P2d 1016, the court decided a case which was an action to recover compensation under the indemnity fund provisions of the Torrens Land Transfer Act. Fraud was involved, and the plaintiffs brought their action upon the theory that they had been damaged through the operation of the provisions of the Torrens Act by reason of the fraud. (In that Act, as we have pointed out, it is necessary that the claimant show that he is free from negligence.) The court affirmed a finding for the plaintiffs and said, at page 1020:

“We think the assurance fund provisions of this act are similar in effect to an insurance contract between a certificate holder and the state as holder of a certain fund. ‘Insurance is a contract whereby one undertakes to indemnify another against loss, damage, or liability, arising from an unknown or contingent event.’ Civ Code, § 2527. ‘Since the guaranty, as we have indicated, runs against future loss that may be incurred if the record title shall prove to be different from that certified, it is a contract of indemnity.’ Title Ins. & Trust Co. v. Los Angeles, 61 Cal App 232, 214 P 667, 669.”

In the instant case the County brought a tax foreclosure suit filed on June 26, 1946. On June 21, 1946, the plaintiffs had been appointed by the Probate Court of Cook County coconservators of the estate of the incompetent Onischuk, who was adjudicated incompetent and committed to Manteno State Hospital in July 1945. A lis pendens notice of the foreclosure proceeding was filed with the registrar of titles on June 26, 1946. While the suit was pending in July 1946 the plaintiffs filed an inventory in the incompetent’s estate, listing the subject property as an asset. Neither the inventory nor the fact of their appointment was ever memorialized in Torrens by the plaintiffs.

The foreclosure sale occurred in December 1946, and the assignee of the purchaser obtained a tax deed in March 1949, in a proceeding in which was filed an affidavit of diligent search, reciting inability to find the record owner in Chicago and suburbs or by inquiry at his last known address. Thereafter, the registrar of titles, without requiring surrender of the certificate issued to Onischuk in 1929, issued a new certificate of title to the assignee of the purchaser. The original certificate of title still remains in the possession of the plaintiffs, and there is no question that the new certificate conferred a valid title upon the person therein named, nor is any question with regard to that raised in the instant suit.

In spite of the fact that there was no record filed with the registrar, the fact of the incompetency of the ward of the plaintiffs, the appointment of conservators, and the filing of the inventory by them were all part of the records of the Probate Court of Cook County. The indemnity fund provided by statute is, in the opinion of the writer of this dissent, a strict insurance provision, and the plaintiffs have a right to recover.

The duty imposed upon the registrar, insofar as the indemnity fund is concerned, is absolute, and he is required to take notice of the records of the Probate Court of his own county.

The order appealed from should be reversed.

       Plaintiffs base their claim for damages on Ill Rev Stats, 1965, c 30, § 138, which provides:
      Any person sustaining loss or damage through any omission, mistake or misfeasance of the registrar, or of any examiner of titles, or of any deputy or clerk of the registrar in the performance of their respective duties under the provisions of this act, and any persons wrongfully deprived of any land or any interest therein, through the bringing of the same under the provisions of this act, or by the registration of any other person as owner of such land, or by any mistake, omission or misdescription in any certificate, or in any entry or memorandum in the register book, or by any cancellation, and who by the provisions of this act is barred or in any way precluded from bringing an action for the recovery of such land or interest therein, or claim upon the same, shall have a right of action for the damages thus sustained against the county in which such land shall be registered, and may file a claim with the county board, or bring an action at law against the county in which said land is situated for the recovery of such damages.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    Vincent Moroni, Plaintiff-Appellant, v. Gulf, Mobile and Ohio Railroad Company, a Corporation, Defendant-Appellee.
    Gen. No. 50,369.
    First District, Third Division.
    September 14, 1967.

      James A. Dooley, of Chicago, for appellant.
    Winston, Strawn, Smith & Patterson, of Chicago (Edward J. Wendrow and Richard J. Brennan, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from an order granting defendant, Gulf, Mobile and Ohio Railroad Company’s motion for summary judgment.

The original complaint in this action was against Intrusion-Prepakt, Incorporated, and Gulf, Mobile and Ohio Railroad Company, hereinafter called G. M. & 0. A motion to dismiss was filed by Intrusion on the ground that the Workmen’s Compensation Act precluded plaintiff’s recovery against Intrusion. See Moroni v. Intrusion-Prepakt, Inc., 24 Ill App2d 534, 165 NE2d 346, wherein the appellate court reversed the dismissal by the trial court.

The matter before us involves the count against defendant G. M. & 0. to recover damages for personal injuries sustained by the plaintiff when a board on a scaffold on which he was standing became loose and caused him to be thrown to the ground. Intrusion-Prepakt, Incorporated, erected a scaffold to enable plaintiff, who was an employee of Intrusion-Prepakt, Incorporated, to perform certain construction work on a viaduct owned by the defendant, G. M. & 0. A jury trial was demanded by defendant. The court on motion of defendant G. M. & 0. granted summary judgment. The amended complaint charged G. M. & 0. with violating the Illinois Structural Work Act, as a result of which the plaintiff was injured. The defendant G. M. & 0. admitted ownership, maintenance, operation and control of the viaduct on which the plaintiff was working, but denied guilt under the Illinois Structural Work Act. A counterclaim was filed by G. M. & 0. against Intrusion-Prepakt alleging that Intrusion was liable to G. M. & O. for any sums awarded to the plaintiff by reason of this action. A motion for summary judgment against the plaintiff was filed by G. M. & 0. in which it stated that there was no genuine issue as to any material fact, and that it was entitled to a judgment as a matter of law. As heretofore noted, this motion was granted.

The plaintiff in this court raises two points: (1) a trial court must deny a motion for summary judgment when it appears that there is a triable issue of fact present and such a motion cannot be employed to impair the right of trial by jury, and (2) the record showed defendant had the right to control the work; this fact in itself made a triable issue of fact.

The defendant, G. M. & 0., had entered into a contract with Intrusion-Prepakt, Incorporated, which provided, among other things, the following:

“The Contractor proposes: . . .
“5. To comply at all times with any instructions given by the designated representative of the Owner, provided that the Contractor shall retain full control of his special materials and processes.”

Paragraph 2 of the contract provided in part as follows:

“The Contractor proposes: . . .
“2. To supply the fine and coarse aggregates and to supply all other materials and supplies, other than furnished by the Owner, necessary to carry out the work; provided that, if requested by the Owner, the Contractor first shall obtain approval of any purchase. . . .”

The contract also provided the following:

“This proposal is submitted with the understanding that the Owner will agree:
“1. ... To furnish the Contractor with bi-monthly statements of costs of materials supplied by the Owner, for the purpose of computing the total cost of the work and the contract fee.”

The work generally was that of repairing structures which were then in existence and making some additional reinforcements with concrete between the beams and girders, and was being performed from the underside of the viaduct. Plaintiff, who was standing on the scaffold, was thrown therefrom onto the ground below when a board on the scaffold came loose.

In support of its motion for summary judgment G. M. & 0. filed the affidavits of L. F. Rapier, a bridge and building supervisor for G. M. & 0., and Victor E. Erickson, who was at the time of the accident the field superintendent for Intrusion on the construction work involved.

Rapier set forth in his affidavit that he was aware of the contract under which Intrusion was to do certain repair work to the G. M. & 0. Bridge. He stated no G. M. & 0. employees ever worked at the Osgood Street Project or assisted the Intrusion employees in any way, but that G. M. & 0. purchased some cement and sold it to Intrusion for use on the job. Rapier had no supervision over the work being done and never made any suggestions or gave any instructions to any Intrusion employees or supervisors. He further stated that he would go by the job to see how the work was coming along and to see whether it appeared to conform to the specifications in the contract. He did this about two or three times a month and would sometimes stop and greet Erickson, an Intrusion employee. He would ask Erickson how the work was coming along and then go elsewhere where he did have charge of the work. Once or twice during the months of the project he called his superiors in Mobile to tell them how much of the job was completed. When the job was finished he went to the project site to satisfy himself that the area had been cleaned up and that the contract specifications had been met and reported orally to his superiors. He further stated that he had never inspected any scaffolding.

Erickson in his affidavit stated that he was the field superintendent on the project and that he supervised whatever work was done. He also stated that all the men who did the work were employees of Intrusion and took orders from him or his foremen, Delbert Yallaly and Mr. Pekula. He stated he had entire supervision of the work and no G. M. & 0. employee ever volunteered any suggestions or gave any orders or instructions to him or his men, and that he never asked any of the G. M. & 0. people for any safety suggestions or to make any inspection of the project. He knew Rapier, who would stop by to say hello and leave in a short time. Rapier never spoke to him about the method or manner of doing the work and never gave him any orders about the work or discussed the details of the contract. Rapier did not inspect the scaffolding or other equipment.

Plaintiff filed a counteraffidavit which stated that the deposition of Erickson had been taken under section 60 of the Civil Practice Act. The deposition was attached to the counteraffidavit filed with the court.

Although defendant questions the propriety of plaintiff’s deposing of Erickson under section 60 as a hostile witness (since Erickson left the employ of Intrusion-Prepakt in 1960 and the deposition was taken in 1963), this argument is not meritorious. The court in Campione v. Henry C. Lytton & Co., 57 Ill App2d 147, 206 NE2d 780, held that where no objection is made to the character of the affidavits in the summary judgment proceeding, the point may not be raised for the first time on appeal.

Plaintiff’s counteraffidavit set forth that Erickson had signed a statement in direct contradiction of his deposition and his affidavit in support of G. M. & O.’s motion for summary judgment. The statement of Erickson was attached to the counteraffidavit and was introduced as plaintiff’s Exhibit 1 at the taking of the deposition. Erickson in his statement said that Rapier or his master carpenter would make frequent visits to look the job over as it progressed, and that it was not uncommon for Rapier to make suggestions for the improvement of equipment insofar as safety was concerned. He further stated that Rapier was very conscientious and interested in seeing that the work was being done in the manner that the contract called for, and it was common practice on Rapier’s part to watch the laborers perform their jobs and see that things were going well and “he would not hesitate to call my attention to possible improvements or changes through the entire 5 or 6 months that it took to complete the work.”

Prior to the final ruling granting defendant’s motion for summary judgment, the motion judge considered the transcript of testimony of Delbert Yallaly, a foreman of Intrusion on this project. That testimony was taken before a trial judge and a jury in a trial of this case which was ended by the judge declaring a mistrial. That transcript was filed with the proceeding by the order of the motion judge. Yallaly’s testimony revealed that Rapier would come on the job once or twice a week from the first week the job started. Rapier and Erickson would look the job over and when Rapier left Erickson would tell Yallaly that “we have to do a little more work here.” He stated he would see Rapier walk around and point at different things and Rapier at times would stay maybe an hour or so. Rapier would approve parts, and sometimes he would wait for Rapier to come before putting some men on some work.

The defendant in its brief argued that the contract between G. M. & 0. and Intrusion-Prepakt, which the plaintiff so strongly relied upon, was not called to the trial court’s attention. The contract is a part of the record before this court. It was attached to verified answers to interrogatories filed by Intrusion-Prepakt, the third party defendant to defendant appellee’s action against it.

The plaintiff argued that the contract was a part of the record and was before the court at the time the judgment was entered on the motion for summary judgment. Intrusion-Prepakt, Incorporated, has been a party defendant in these proceedings since the filing of the action. There is no question but that the contract involved was a part of the court file, and is a part of this record.

In Frick v. O’Hare-Chicago Corp., 70 Ill App2d 303, 217 NE2d 552, the court stated on page 309:

“The basic question on this appeal is: Does an examination of this entire record show fairly and without doubt that there is no genuine issue as to whether defendant O’Hare came within the Structural Work Act term of ‘having charge of’ the construction work, during the performance of which plaintiff was injured?”

In Bertlee Co., Inc. v. Illinois Publishing & Printing Co., 320 Ill App 490, 495, 52 NE2d 47, the court said:

“A summary judgment can be granted only where the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The purpose of the summary judgment procedure is not to try an issue of fact but rather to determine whether there is an issue of fact.”

We realize from the record before us that the trial court’s file was extremely large in this case, and that the judge who heard the motion for summary judgment possibly could have overlooked the answer to interrogatories to which the contract was attached. However, we cannot say here that it was not brought to the trial court's attention. The defendant contends that it could not properly be brought to the trial court’s attention because it was not included in any affidavit submitted by the plaintiff. Section 57 of the Civil Practice Act (Ill Rev Stats 1965, c 110, par 57) under subsection 3 provides that the judgment or decree sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law.

We conclude that the contract, the interpretation of which is important to a decision in this case, was legally before the motion judge and that it, being incorporated in an answer under oath to interrogatories by Intrusion-Prepakt, comes within the definition of an affidavit.

G. M. & O. relies somewhat upon Kobus v. Formfit Co., 56 Ill App2d 449, 206 NE2d 477, which case has been reversed by the Supreme Court since the filing of G. M. & O.’s brief. In Kobus v. Formfit Co., 35 Ill2d 533, 221 NE2d 633, the court held that a contract which provided that the contractor shall permit and facilitate the inspection of work by the owner and his agents, and that the owner may order changes in the work, was sufficient to hold an owner upon the theory that he was “in charge of” the work within the meaning of the Structural Work Act.

In Larson v. Commonwealth Edison Co., 33 Ill2d 316, 325, 211 NE2d 247, the court said:

“Even at common law retention of the right to control the work is sufficient to subject one to duty and tort responsibility, (see: Schwartz v. Gilmore, 45 Ill 455, 457; Best Manufacturing Co. v. Peoria Creamery Co., 307 Ill 238, 241-242; Hartley v. Red Ball Transit Co., 344 Ill 534, 539; Restatement of Torts, sec 414 and comment; 57 CJS, Master & Servant, sec 602) and the retention of the right to control must carry with it the same duty and responsibility under the Scaffold Act. Otherwise, the absurd result would be that a statute designed to broaden the common-law duty and to give added protection, would be construed as imposing a lesser duty than the common law. Certainly it was not the legislative intent that those retaining the right to supervise or control the work could be freed from duty by doing nothing, for section 9 imposes liability for a wilful failure to comply with any of the provisions of the act, as well as wilful violation.

The contract in the case before us required the contractor to comply at all times with any instructions given by the designated representative of the owner. To that extent the owner was given the power to supervise and control the work.

In Carlson v. Metropolitan Sanitary Dist. of Greater Chicago, 64 Ill App2d 331, 337, 213 NE2d 129, the court said:

“Defendant says that the actual control of the manner and method of doing the work, not the mere right to control, is necessary for an owner to be a party ‘having charge of’ the work under the Structural Work Act. The defendant in its contract retained the right to control the manner and method of doing the work and the trial judge not only equated ‘in charge’ as used in the Scaffold Act with control over the manner and method of doing the work but also considered control over the manner and method of doing the work as synonymous with actual control over the minutiae of detail involved in a construction project. We agree with the plaintiff that this is not a proper test. In Gannon v. Chicago, M., St. P. & P. Ey. Co., 22 Ill2d 305, 175 NE2d 785, the court pointed out that all the construction work, including the bricklaying, assembling and construction of the scaffolds and other operations, was done by Marhoefer & Company and its employees under a contract with the railroad and that although the railroad architect and engineers made frequent inspections of the structural activities, there was no inspection of the scaffolds and ladders or other appliances at any time and they exercised no control over the manner in which the work was being done. On these facts the Supreme Court in Gannon held (p 323) that it was a question of fact whether the owner could be deemed to be in charge of the construction within the meaning of the Act, and that it was the province of the jury, under proper instructions, to make that determination.”

A recent case, Grotty v. High-Low Foods, Inc., 78. Ill App 2d 237, 223 NE2d 442, further clarified this point in holding that more than one person or firm may be in charge of a construction job, and that one need not erect and/or use the scaffold to come within the purview of the Act as “having charge of” the job.

There can no longer be any doubt that one having the power to supervise or control may be held liable in an action under the Structural Work Act, and that the question is one of fact whether the owner can be deemed to be in charge of the construction within the meaning of the act. Since it is a question of fact, it is the province of the jury to make that determination after being properly instructed. As to the contention that the pleadings and depositions, together with the affidavit, show that there is no genuine issue as to any material fact, we feel that this is untenable. The affidavits in support of the motion and in opposition thereto create a genuine issue of material fact.

The defendant filed an affidavit of Erickson, who was the field superintendent for Intrusion-Prepakt, Incorporated, to the effect that no G. M. & 0. employee at any time gave any instructions or orders regarding the work. Plaintiff filed a counteraffidavit which set forth that Erickson, while being interviewed on November 2, 1962, signed a statement which is in direct contradiction of his later deposition and his affidavit in support of G. M. & O.’s motion for summary judgment. That statement was attached to the counteraffidavit and was introduced as plaintiff’s Exhibit 1 at the taking of the deposition. Erickson at the deposition hearing admitted that he had signed the contrary statement. Both the affidavit and the statement went to the question of whether the defendant, G. M. & 0., actually controlled and supervised the work. Under the foregoing circumstances it cannot be said that there is no triable issue of fact present.

The judgment of the trial court is reversed and remanded with directions to vacate the order granting summary judgment and enter an order denying the motion for summary judgment.

Reversed and remanded with directions.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE DEMPSEY

text:
    In the Matter of the Estate of William A. Melody, Deceased. People of the State of Illinois, Plaintiff-Appellee, v. Pauline Owens, Defendant-Appellant.
    Gen. No. 51,027.
    First District, Third Division.
    September 14, 1967.

      Howard T. Savage, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Ronald Butler, Assistant State’s Attorney, and Edward J. Hladis, Chief of Civil Division, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Pauline Owens was adjudged guilty of criminal contempt in the Probate Division of the Circuit Court and was sentenced to one year in jail. On appeal she contends: (1) her conduct was not contemptuous since it was not calculated to obstruct the administration of justice or impugn the dignity of the court; (2) the court erred in denying her a jury trial; (3) her conviction should be reversed because of certain irregularities and improprieties which occurred in the course of the proceeding, and (4) the sentence imposed should be reduced.

The defendant was a practical nurse and had been caring for William Melody for several years. Melody died on July 6, 1964. Two days later the defendant consulted an attorney. She told him that a petition to probate Melody’s will had been filed and that she knew there was a subsequent will which could not now be found. She asked him to draw up a will to replace the lost one. He said he would check it out and requested her to contact him the next day. She did so and he told her that he did not want any part of it. Several days later the defendant telephoned the attorney to ask if he would reconsider. He repeated what he had said before but added that if she would bring $1,500 in cash to his office, he would take it. The next day she called him at home to say it was very important that he see her the following day. On that day she said that arrangements for two witnesses were already being made and they were to be paid. He refused to take the money and again said he would have nothing to do with the matter. On July 14th she went to another lawyer. She told him that Melody was deceased and that it was necessary to prepare a new will for him because the present one was not in accord with his wishes. The will was drawn up, signed with the decedent’s name, witnessed by Velma Hoyle and Betty Jean Tewel, and the attorney subsequently presented it for admission to probate. At the hearing on proof of the will it was shown to be spurious and was denied admission to probate. Contempt proceedings were initiated against the attorney and the defendant. The attorney was convicted and his conviction affirmed. People v. Bloom, 35 Ill2d 255, 220 NE2d 475 (1966).

The first issue is whether the defendant’s activities constituted contempt. The gist of her argument is that her acts were irrelevant to the functioning of the court.

Conduct which is calculated to embarrass, hinder or obstruct a court in its administration of justice or to derogate from its authority or dignity is a contempt of court. People v. Gholson, 412 Ill 294, 106 NE2d 333 (1952); People v. Bialek, 31 Ill App2d 281, 175 NE2d 278 (1961). The defendant’s acts had as their purpose the admission to probate of a will which she knew was not the will of the decedent, and as part of her undertaking she helped to obtain a person who was willing to commit perjury in testifying before the Probate Court and helped coach the witness to lie convincingly. After the second attorney agreed to prepare the will he told the defendant he wanted two white witnesses to witness the will and asked if she could find them. She said no, but she could find two colored people for him. He said this would not stand up in court. The defendant then told him the telephone number of Velma Hoyle (with whom she had talked about being a witness while Melody was alive). The defendant denied knowing whether Hoyle communicated with the attorney or just what took place; however, she admitted that the attorney asked her to take the typed will to Hoyle, that she sent Hoyle some photographs of the deceased and that, in response to Hoyle’s questions, she told her as much as she possibly could about Melody’s apartment and the surroundings. It is obvious that the defendant suggested Hoyle as a witness who might be willing to commit perjury and that she assisted her to give false testimony.

The Illinois cases and cases of other jurisdictions demonstrate that the defendant’s actions impinged upon the Probate Court’s performance of its duties so substantially as to warrant punishment as contempt. In Beattie v. People, 33 Ill App 651 (1889), the court stated that “an attorney who procures false evidence, knowing it to be false, with the intention of deceiving the court and thus interfering with the due administration of justice, is . . . guilty of contempt of court. . . .” Likewise in Osborne v. Purdome (Mo), 244 SW2d 1005 (1951) and Grant v. State, 213 Tenn 440, 374 SW2d 391 (1964), attorneys who had encouraged witnesses to testify falsely were held in contempt. The judicial process is impeded by any person who knowingly causes false testimony to be presented, whether lawyer, party or merely someone interested in the outcome of the proceeding. Hence, there is no basis for restricting the rule of these cases to attorneys, and nonlawyers have been held in contempt for similar transgressions. In People v. Hodge, 23 Ill2d 425, 178 NE2d 354 (1961), Hodge was an “alibi witness” in a criminal proceeding. After Hodge testified, a second “alibi witness” took the stand. The testimony of the second witness differed from that of Hodge, and Hodge, sitting in the rear of the courtroom, began to direct the witness by shaking her head and gesticulating. The witness then changed her testimony to corroborate Hodge’s. Hodge was held in contempt and her conviction was affirmed. The nature of her actions, the brazen attempt to influence the witness to change her testimony, was the essence of the contempt; the place of the contempt — in the presence of the court — determined only the procedure to be followed in the contempt proceeding. Sammons v. State, 181 Miss 45, 178 So 596 (1938), involved a person charged with selling intoxicating liquor to minors. Sammons sought to influence the testimony of witnesses subpoenaed to appear before the grand jury, suggesting that they say they drank beer rather than whisky. He was convicted of contempt, and on appeal it was held that it was plainly contempt of court to attempt to interfere with the function of the court by suppressing the truth. See also State v. Havel, 120 Neb 832, 235 NE 584 (1931), where the court held that when onejnduces and arranges with witnesses to testify falsely and at the time of trial calls the witnesses to testify and they testify falsely, his action constitutes contempt. Defendant Owens’ conduct was a contempt of court and, in accord with these cases, it was appropriate that it be punished as such.

The defendant next contends that the Probate Court erred in denying her a jury trial. She argues that the denial was error because it is only when a contempt is direct that trial by jury is not a defendant’s right and because the sentence imposed was a jail term in excess of six months.

The first part of the defendant’s contention is based on the distinction between direct and indirect contempt. A direct contempt is committed in open court in the ocular presence of the judge or in any place set apart for the use of any constituent part of the court. In punishing a direct contempt the judge may act upon his personal knowledge of the facts and may impose a penalty summarily without the filing of an information or entry of a rule to show cause and without any hearing. An indirect contempt is one committed out of the presence of the court; before punishment may be ordered an information, notice, citation or rule to show cause must be served upon the alleged contemnor and he is entitled to a hearing. People v. Hagopian, 408 Ill 618, 97 NE2d 782 (1951). In People v. Bloom, supra, the court explained that the reason why trial by jury is not available in criminal contempt proceedings is “not that a contempt is comparatively petty or trivial but that a summary proceeding for punishment is essential to performance of the judicial function.” Since only a direct contempt may be punished summarily, the defendant concludes that a right to jury trial exists when the contempt alleged is indirect.

The Supreme Court’s statement of the rationale for the denial of a jury trial in contempt proceedings cannot be understood as incorporating a difference between proceedings for direct contempt and those for indirect contempt. The court stated that a summary proceeding for contempt makes interposition of a jury inexpedient, but “summary” was meant to denote the speedy and peremptory character of the proceeding and did not refer to the type of proceeding in which notice to the defendant and the hearing of testimony are dispensed with. The distinction sought to be made by the defendant was rejected in People ex rel. Stollar v. Ogilvie, 36 Ill2d 261, 222 NE2d 496 (1966). There the defendant, like the defendant in the instant case, was guilty of an indirect contempt. (The facts are set forth in People v. Stollar, 31 Ill2d 154, 201 NE2d 97 (1964).) Again speaking in terms of the exercise of summary, contempt power, the court held that there is no right to trial by jury in a criminal contempt case.

The second part of the defendant’s argument is that she was entitled to a jury trial because the sentence imposed exceeded six months in jail. This was the precise issue in People ex rel. Stollar v. Ogilvie, supra, and the court decided it adversely to the defendant.

The third point is that certain irregularities and improprieties which occurred during the course of the proceeding require that the conviction be reversed. Three instances are alleged: (a) no order was entered that the defendant show cause why she should not be held in contempt and no petition asked that she be held in contempt; (b) promises of leniency were made to induce the defendant to testify against herself, and (e) the defendant was subjected to cross-examination by an attorney representing neither herself nor the State and during this cross-examination her own attorney left the courtroom.

Examination of the record discloses that the allegations of the defendant are without merit: (a) A writ of attachment was issued against the defendant on petition of the State’s Attorney on September 10, 1964. The writ directed that the defendant be brought before the court to show cause why she should not be held in contempt, and a copy of the petition charging the circumstances of the contempt was served with the writ. On November 18, 1964, the State’s Attorney filed a petition wherein the circumstances of the contempt were alleged; the petition ended with the statement that the defendant’s acts were contemptuous, thereby subjecting her to punishment for contempt. The petition adequately notified the defendant of the charge of contempt, the acts claimed to constitute the contempt and the possibility of her being punished unless she presented a defense. Moreover, a similar petition was examined by the Supreme Court in People v. Bloom, supra; the court found the defects in it were matters of form only, (b) At the close of the proceeding against the defendant her attorney told the court that she wanted to tell the truth and that as far as he knew nobody had promised her anything. The defendant took the stand and, in response to questions of the court, stated that she had heard what her attorney said, that she wished to testify and that nobody had made any promise to her. The statements in the record which — the defendant argues — intimate that she was promised special consideration for testifying, do not appear to us to do so. Moreover, the express denials by her and her attorney that her testimony was improperly elicited far outweigh the implication she professes to see in the statements. (c) The contempt proceeding against the defendant began and ended on February 1,1965, and during the hearing she was fully and ably represented by counsel. The proceeding against Bloom, the attorney who had presented the will, commenced the next day. The defendant was called as a witness for the State. For some period during her cross-examination by the lawyer for Bloom, her attorney apparently was not in court. It is this cross-examination and absence to which the defendant refers. Cross-examination of the defendant by Bloom’s attorney was proper, for it was Bloom who was then the subject of the proceeding. Since the State had previously rested its case against the defendant, she was then merely a witness and it was not necessary for her attorney to be in attendance during her cross-examination.

The final point raised is that the sentence of one year in jail is excessive. In light of the circumstances shown by the evidence, the Probate Court did not abuse its discretion in imposing the sentence. The acts of the defendant were willful, deliberate and a flagrant attempt to obstruct justice.

The judgment of the Probate Division of the Circuit Court is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


text:
    Michael J. O’Malley and Beverly Bank, an Illinois Banking Corporation, as Trustee Under Trust No. 8-0644, Plaintiffs-Appellees, v. Nathan Cummings, Defendant-Appellant.
    Gen. No. 51,571.
    First District, Third Division.
    September 14, 1967.

      Hopkins, Sutter, Owen, Mulroy, Wentz & Davis, of Chicago (Anderson A. Owen, Thomas C. Shields, and George Kelm, of counsel), for appellant.
    Altheimer, Gray, Naiburg, Strasburger & Lawton, of Chicago (Lionel G. Gross, Norman M. Gold, and Roger B. Harris, of counsel), for appellees.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

In an amended complaint the plaintiffs, Michael O’Malley and the Beverly Bank, as beneficiary and trustee respectively of a trust agreement, sought specific performance of a contract. By the contract the defendant, Nathan Cummings, had agreed to sell a parcel of improved real estate to the bank’s assignor, Harold Richter. Opposing motions for summary judgment were filed, that of the plaintiffs was granted, specific performance was decreed and the defendant appeals.

The contract was executed on May 1, 1965. The purchase price was $150,000 less $15,000 earnest money paid on that date. Cummings was to deliver a preliminary report on title for insurance in the policy amount of the purchase price. If the report disclosed title defects other than those permitted by the agreement, Cummings had to cure them within 60 days from the date of the preliminary report and to furnish a later report showing them cured, removed or waived. From May 1st until termination of the agreement Richter was entitled to the income from the property and was required to pay all the expenses of its operation, including taxes; part of his obligation in this regard was to deposit with Cummings on or before the 15th day of each month $1,337.60, an amount stated to be %2th of the general real estate tax. The closing date was to be “such date as shall be agreed upon between Seller and Buyer, but . . . not later than November 1, 1965.” Paragraph 11 of the contract provided:

“Remedies Upon Default. If Buyer defaults hereunder, the earnest money of $15,000 shall be forfeited as liquidated damages in lieu of all other remedies by Seller and this Agreement shall thereupon be terminated. If Seller defaults hereunder, the earnest money shall be refunded to Buyer, in lieu of all other remedies of Buyer and this Agreement shall be terminated.”

Some time after May 1st Cummings delivered to Richter a preliminary title report in the policy amount of $50,000 which showed as an unpermitted objection an unsatisfied judgment against Cummings’ predecessor in title. Richter caused the title insurer to waive several other title defects but did not complain about the judgment lien nor about the deficiency in the amount of the policy. Five times during October 1965 Cummings’ attorney telephoned Richter to inquire when the sale would be consummated. Richter at first agreed to have the closing on October 29th and then changed it to November 1st, but he did not keep his appointment. On November 2nd Cummings sent notice that the agreement was terminated due to Richter’s default, and retained both the $15,000 earnest money and $6,701.80 which had been deposited for the real estate taxes. On November 12th the plaintiffs filed their original complaint to enjoin Cummings from interfering with their possession of the premises, and on November 27th they tendered a cheek for the unpaid balance of the purchase price less prorations. The tender was refused. Thereupon the complaint was amended and the prayer for specific performance added.

Cummings contends that summary judgment should not have been granted the plaintiffs because specific performance may be decreed only if the moving party has complied with all the provisions of the contract, and Richter was in default in the performance of his contractual obligations when the contract was terminated and his tender of performance — 26 days after the closing date — was too late to cure his default. The defendant also contends that paragraph 11 of the contract excluded specific performance from the remedies available upon a default.

In decreeing specific performance the chancellor apparently held that Cummings was not entitled to terminate the contract because of Richter’s default for, if he was not, the subsequent tender of performance qualified the plaintiffs to seek specific performance. Cf. Lang v. Parks, 19 Ill2d 223, 166 NE2d 10 (1960). The contract did not provide that timely performance was essential. Because of this, the chancellor could have reasoned that Richter’s failure to perform at the time set out in the contract did not of itself preclude the plaintiffs from obtaining specific performance and that the decree should issue since the tender was made within a reasonable time after the stated time. Murphy v. Lockwood, 21 Ill 611 (1859); Restatement, Contracts, § 276(e) (1932). However, the parties to a contract may make timely performance material even though there is no express provision to that effect. Zempel v. Hughes, 235 Ill 424, 85 NE 641 (1908); Bishop v. Newton, 20 Ill 175 (1858). Therefore, a consideration of the conduct of the parties and the circumstances accompanying performance of their duties is necessary to determine whether time was of the essence and whether the tender was effective to cure the default.

The contract imposed a variety of duties on both parties and set forth the times by which they were to be performed, but in several instances each party failed in his compliance with its terms. For example, Richter at least twice, in June and again in August, 1965, failed to make the deposit for the real estate taxes. He was informed of his neglect, tendered the amounts owing and the defendant received them without objection. Cummings failed to furnish the preliminary title report in the amount of $150,000 within 20 days from the date of the agreement; although he was billed by the title insurer for insurance in the agreed amount, the only report he furnished stated that it was for $50,000. The unpermitted judgment lien, which the preliminary report disclosed, was subsequently waived by the title insurer, but no supplementary report showing this fact was sent to Richter. Finally, on November 1st the property was subject to an unpermitted tax lien; Cummings had, however, initiated proceedings which would lead to elimination of the tax deficiency.

The plaintiffs contend that the delays and defaults in the performance of the contract show that the parties did not regard the time of performance as essential. But waiver of the time element of one provision of a contract does not necessarily effect a waiver of all of its time specifications; the extent to which the contract is modified depends upon the nature of the change and the intention of the parties. Boardman v. Bubert, 325 Ill 38, 155 NE 784 (1927). Although Cummings was in default in the performance of several of his obligations, his defaults could have been rectified at the consummation of the sale. The evidence discloses that he fully desired the closing to be, as the contract provided, “not later than November 1, 1965.” His attorney telephoned Eichter on October 8th, October 14th, October 15th, October 28th and October 29th to ask when Richter would be prepared to close the sale, and he did not indicate that the time would be extended beyond November 1st. Richter agreed to the November 1st appointment but failed to show up. It should be noted that neither Richter nor the plaintiffs prior to the filing of the complaint protested about Cummings’ defaults. In these circumstances it cannot be said that the parties intended to deviate from their agreement to consummate the transaction by November 1st.

The remedies provision of the contract established as the defendant’s sole remedy a declaration of forfeiture and termination of the agreement. If he did not exercise his remedy immediately upon the default, the contract would remain in effect, his right to terminate it might be deemed waived (cf. Brown v. Jurczak, 397 Ill 532, 74 NE2d 821 (1947)), and his title would be encumbered by the “option to purchase” thereby created in Richter. The remedies provision, considered with the agreement to complete the sale by November 1st and Cummings’ earnest and repeated attempts to meet with Richter and close the deal by the specified date, makes clear that timely performance was material. Consequently, the notice given after Richter failed to attend the closing terminated the agreement, and the tender of performance came too late. Since Richter failed to comply with the contractual term setting the closing date, the plaintiffs are not entitled to the relief decreed. Cf. Beesley Realty Co. v. Busalachi, 28 Ill2d 162, 190 NE2d 715 (1963) and Robnett v. Miller, 303 Ill 515, 135 NE 705 (1922).

Our decision on the defendant’s first point makes unnecessary a discussion of his second. However, there remains one last point for consideration, and that point also involves paragraph 11 of the contract. Purporting to act in accordance with that provision, the defendant declared that the $6,701.80 tax deposits as well as the $15,000.00 earnest money were forfeited. Forfeitures are not favored in equity, and agreements making time the essence of a contract will not impel a court of equity to recognize a forfeiture where to do so would result in giving one party an unfair advantage over the other. Witherstine v. Snyder, 225 Ill App 189 (1922). It would be inequitable to sanction the forfeiture because both parties were in default and there is a great inequality between the loss to be suffered by the plaintiffs and the benefit to be gained by the defendant. Because of this inequity and mutual nonperformance, both parties are barred from resorting to the remedies provision, and the contract must be rescinded. Horan v. Blowitz, 13 Ill2d 126,148 NE2d 445 (1958).

The plaintiffs are entitled to the return of their earnest money and tax deposits. They and the defendant must be returned as nearly as possible to the condition in which they stood before the contract was made. The summary judgment and the decree for specific performance will be reversed. The cause will be remanded for further proceedings not inconsistent with the views expressed herein.

Reversed and remanded with directions.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: MR. PRESIDING JUSTICE CRAVEN

text:
    Gary Kirby, Plaintiff-Appellee, v. General Paving Company, a Corporation, City of Urbana, a Municipal Corporation, and Richard J. Wozencraft, Defendants. General Paving Company, a Corporation, and City of Urbana, a Municipal Corporation, Defendants-Appellants.
    Gen. No. 10,852.
    Fourth District.
    September 19, 1967.

      Phillips, Phebus, Tummelson & Barth, of Urbana (Darius E. Phebus, John T. Phipps, and Francis J. Jahn, of counsel), for appellants.
    Summers, Watson and Kimpel, of Champaign, for appellee.
   MR. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court.

Defendants appeal from a joint judgment in the amount of $40,000 entered upon verdicts of a jury in favor of plaintiff, Kirby, contending that the verdicts were contrary to law, and outright reversal is sought. In the alternative, defendants complain of trial-court rulings on certain exhibits and instructions, and seek a new trial.

Kirby was a passenger in an automobile which turned right from Race Street and went east on Elm Street in Urbana, Illinois, at about 11:45 p. m. on January 9, 1965. The car, driven by Wozencraft, passed through the intersection of Broadway and Elm and mounted a median strip about 50 feet east of the intersection of Broadway on Elm. The car then continued east another 50 feet straddling the median until it struck a concrete light standard being constructed by a subcontractor of defendant General Paving Company. The collision caused serious injuries to the plaintiff and no complaint is made that the verdict is excessive.

The evidence showed that median strips were present on Green and Race Streets which were traveled by the car occupied by the plaintiff on the way to the scene. The Elm Street median strip curbing had been constructed the preceding November. The resurfacing of Elm Street had been finished at the same time. The only construction work remaining to be done was inside the median strip curbing, consisting of placing fill material and constructing lighting facilities there. There was no work crew or construction equipment present on the night of the collision. Elm Street is 57 feet wide and the median which divided eastbound from westbound traffic was four feet wide and in the center. Light standard bases were being constructed of concrete. These bases were two feet high and were located in the middle of the median about 90 feet apart. On the evening in question, no poles were affixed to them. No street lights were present. The standards were covered with light-colored construction paper. The curbing of the median was composed of light-colored concrete six inches high and the traveled portion of the roadway was of dark-colored asphalt. No unusual weather conditions were present.

There is a slight “S” curve in Elm Street beginning west of the Broadway intersection and ending east. This is caused by an offset of the center line of Elm on each side of the intersection. The extended center lines of Elm Street east and west of the intersection would parallel each other 22 feet and 8 inches apart. Traffic would be required to turn slightly to the north to follow the traffic lanes provided.

In the two months following completion of the resurfacing of Elm and the installation of the curbing on the median, no accidents had occurred. During this time, as on the night in question, there were no street lights present.

The headlights were burning on the Wozencraft car. Outside lighting was present near the scene emitted by lights of undetermined brilliance from the Urbana Post Office on the southeast corner, the City Building on the northwest corner, and Champaign County Courthouse on the northeast corner, and by a municipal parking lot on the southwest corner. All the witnesses giving evidence on the point testified that the median strip on Elm was visible and identifiable as a median strip from 100 or more feet away.

The plaintiff gave no explanation for the accident except that Wozencraft did not complete his turn occasioned by the offset of Elm in the blocks east and west of Broadway. Wozencraft had no memory of the trip. Plaintiff said that prior to entering Elm, while traveling on Race, Wozencraft was driving 35-40 mph and did not slow appreciably for the turn onto Elm.

The allegations of negligence in the complaint charge the defendant city and contractor with permitting “the said construction area ... to be and remain unlighted, unmarked and unbarricaded and without any signal to warn the members of the traveling public of the unsafe, dangerous and hazardous condition, which said condition amounted to a trap since it was not visible to members of the traveling public and there was no effective warning thereof.”

In determining whether the case should be reversed, pertinent observations should be made concerning what was not shown by the evidence nor charged by the plaintiff. There was no allegation or evidence that any unusual conditions existed on the surface of the street normally used for traffic which contributed to cause this injury. There was no allegation or evidence that the plan of construction of the slight “S” curve on Elm Street failed to comply with reasonable engineering standards or that the design, degree or length of the curve created a hazard for a motorist proceeding east on Elm Street with his car under control. Despite the lack of street lighting, there is no evidence that a motorist, with headlights burning, traveling parallel to the curb of the median could not see it, and the evidence in the record affirmatively indicated otherwise.

The status of the plaintiff, Kirby, as a passenger in the car of another is not an issue here respecting the duty, if any, of the defendants to warn the motoring public of the construction or condition of the median strip. We are here concerned with the concepts of negligence and duty. Any duty owed by the defendants would be owed equally to all persons in vehicles using the city street, whether passenger or driver.

We likewise conclude from the evidence that should the duty to warn exist, the question of whether Wozencraft’s operation of the car was the sole proximate cause of the crash and resulting injuries to the plaintiff was pre-eminently a question of fact for the jury which returned a verdict resolving this issue adverse to the defendants.

It is clear, then, that this controlling issue is one of law. As stated by the Supreme Court in a recent case:

“As a prerequisite . . . the plaintiff must establish that the defendant owed a duty to protect . . . (the plaintiff) from the injury alleged to have been sustained. (Citing cases.)” . . . Mick v. The Kroger Co., 37 Ill2d 148, 150 (224 NE2d 859, 861 (1967)).

A duty to warn exists where there is unequal knowledge, actual or constructive, and the defendant, possessed of such knowledge, knows or should know that harm might or could occur if no warning is given. Hamilton v. Faulkner, 80 Ill App2d 159, 224 NE2d 304 (4th Dist 1967); Herington v. Illinois Power Co., 79 Ill App2d 431, 223 NE2d 729 (4th Dist 1967). “The purpose of warning is to apprise a party ... of a danger of which he is not aware . . . .” Bakovich v. Peoples Gas Light & Coke Co., 45 Ill App2d 182, 195 NE2d 260, 263 (1st Dist 1963).

These general principles of law, viewed in the context of this evidence, control our decision. The median was visible and no warning of it was required. The surface of the street was finished and no contention is made that the curbing or street surface caused or contributed to cause the occurrence. A car leaving the traveled portion of the street which mounted a six-inch curb to straddle a median strip would sooner or later, if not stopped, encounter difficulty. The nature of that difficulty was caused in this instance by new construction but that fact is of no significance legally. The “darkness” testified to by the witnesses is conclusionary in nature and overcome by testimony that the median, despite the darkness, was visible to anyone looking — a patent condition, not a latent defect. Under these circumstances, the construction in the median was a condition, not a legal cause of the accident, and no warning of its existence was necessary. Fricke v. St. Louis Bridge Co., 309 Ill App 279, 32 NE2d 1016 (4th Dist 1941).

This judgment must be and is reversed.

Judgment reversed.

SMITH and TRAPP, JJ., concur.


text:
    Donald M. Clark, Plaintiff-Appellant, v. Quincy Housing Authority, Defendant-Appellee.
    Gen. No. 10,865.
    Fourth District.
    September 19, 1967.

      Pollock and Ennis, of Quincy (W. Dakin Williams, of counsel), for appellant.
    Loos and Schnack, of Quincy (Loren E. Schnack, of counsel), for appellee.
   MR. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court.

Plaintiff was on certain premises owned by the Quincy Housing Authority in connection with his business as a salesman. He was in the process of collecting bills from certain of his customers who were tenants of the Housing Authority. This was during the daylight hours of January 9, 1965. He slipped on a piece of linoleum scrap near his car on that date, the fall resulting in a broken leg. At the close of all the evidence in this action for personal injuries, the trial court directed a verdict in favor of the defendant. The only issue on this appeal is whether such action was proper.

The evidence at the trial disclosed that the plaintiff parked his car in the service drive of the housing project. He had been to the apartment of one of his customers and had returned from this call and entered his car when another customer called to him and asked him to come to her apartment. He got out of his car and proceeded around the front of the car and the front bumper when he slipped on a piece of linoleum, fell and broke his leg. There were many pieces of linoleum in the general area and the plaintiff had seen them on many occasions. He knew they were present in the area of his car on the date in question.

The evidence further establishes that in addition to knowledge of the presence of the linoleum in the area, plaintiff knew it was slippery. He stated, however, that he did not see the pieces of linoleum immediately prior to his fall, observing that “if I would have seen them, I would not have fell.”

Under these circumstances, we think the plaintiff failed to make a prima facie case of negligence or to meet his burden of showing exercise of ordinary care in his own behalf. In either case, the trial court would be justified in refusing to allow the case to go to the jury and in directing a verdict. Thoele v. Mazel, 8 Ill App 2d 237, 131 NE2d 133 (1st Dist 1956).

The former rule that only evidence favorable to the party opposing a motion for directed verdict may be considered by the court in passing upon the motion is no longer the rule. The present test permits of an examination of all of the evidence, and if after considering all of the evidence there is no substantial evidentiary dispute the court may direct a verdict, and indeed should do so. Pedrick v. Peoria & E. R. R. Co., 37 Ill2d 494, 229 NE2d 504. As to this case, whether under the old or the new test with reference to directing verdicts, it is clear from the plaintiff’s own evidence that he was aware of a condition on the premises and aware that that condition was likely to cause him injury, and in fact it did. It is well-settled that the existence of a duty on the part of the defendant does not excuse the plaintiff from looking when he should look and from seeing that which is within the range of vision. That duty is amplified in this case by the evidence that the plaintiff had prior knowledge of the hazard, if indeed the piece of linoleum was that. Under this state of the evidence, the trial court properly directed a verdict for the defendant. Ferguson v. Lounsberry, 58 Ill App2d 456, 207 NE2d 309 (4th Dist 1965). The judgment is affirmed.

Judgment affirmed.

SMITH and TRAPP, JJ., concur.


author: MR. PRESIDING JUSTICE DAVIS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Elton Harter, Defendant-Appellant.
    Gen. No. 66-92.
    Second District.
    September 20, 1967.

      Samuel Dean, of Rockford, for appellant.
    William R. Nash, State’s Attorney of Winnebago County, of Rockford (William H. Snively, Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal by the defendant, an indigent person, from the judgment order of May 26, 1966, entered on a jury verdict, determining him to be a sexually dangerous person.

The defendant was charged by information with the criminal offense of an attempt to contribute to the sexual delinquency of Dewey Renton, age 17, on January 6, 1966, in that he attempted to commit an act of sexual deviate conduct with Renton, in violation of section 8-4 of the Criminal Code. (Ill Rev Stats 1965, c 38, par 8-4.) On February 24, 1966, the defendant, through counsel, made a motion to quash the information, which was not argued, and entered a plea of not guilty to this charge.

Also, on that date, a petition was filed in accordance with the provisions of section 3 of the Sexually Dangerous Persons Act (Ill Rev Stats 1965, c 38, par 105-3), which alleged certain facts tending to show that the defendant was sexually dangerous; and that by virtue of such facts, he was, in fact, sexually dangerous. The petition requested the court to appoint two psychiatrists to examine him and report their determination to the court. The examinations were made and the psychiatrists filed their written reports with the court and delivered copies thereof to the defendant.

The court appointed counsel to represent the defendant at the hearing on February 24, 1966, and said counsel, on his own motion, was given leave to withdraw as attorney for the defendant on March 21, 1966. On March 23, 1966, the court appointed new counsel for the defendant and this attorney ably represented the defendant under most difficult circumstances in the trial court and in this appeal.

Originally, the defendant refused to permit the court appointed psychiatrists to examine him, and it was only after a court order had been entered continuing the case for compliance with the examination order, that the psychiatrists were able to complete their examination. Throughout the proceeding in the trial court and upon appeal, the defendant’s conduct was erratic and was characterized by suspicion and emotional hostility and resentment. Independent of counsel, he filed motions, written instruments which were beyond classification, and wrote letters to a Federal Judge seeking intervention in the proceeding.

One psychiatrist reported that on the basis of the prior charges, coupled with the present examination, the defendant could be classified as a sexually dangerous person. The other reported that on the basis of the present examination and the present allegations and past history of sexual aberrations, the defendant was a sexually dangerous person. At the trial, each psychiatrist testified that, in his opinion, the defendant was a sexually dangerous person.

The evidence indicated that upon arrest, the defendant made a voluntary statement wherein he admitted the offense charged in the information, namely: that of an attempt to contribute to the sexual delinquency of Dewey Renton. One deputy sheriff testifed concerning the taking of the statement and its contents, and another corroborated this testimony. Dewey Renton, the complaining witness, testified for the People and his testimony likewise fully substantiated the charge.

Deputy clerks testified concerning the defendant’s pri- or convictions with reference to sexual offenses. This testimony established that in cause number 2302, an information was filed which charged that the defendant on the 1st day of November, 1964, contributed to the sexual delinquency of a child. The first count of the information charged that Harter committed the offense of contributing to the sexual delinquency of a minor child in that he, with intent to arouse or satisfy his sexual desires, lewdly performed an act in the presence of Billy Peppers, Bobby Peppers and Mike Phillips, children of the age of 18 years, in violation of paragraph 11-5, chapter 38, Ill Rev Stats 1963; that the defendant was represented by counsel; that the case was tried before a jury which found him guilty as charged in Count I of the Information; and that the defendant was sentenced to the Vandalia State Farm for one year and a mittimus issued thereon.

In cause number 29208, the testimony proved that an information issued which charged that the defendant, on December 8, 1956, committed acts of assault upon Frank Stokes, with intent to commit a lewd and lascivious act upon the person of Stokes; that the defendant was represented by counsel in said case; and that thereafter, the defendant entered a plea of guilty, signed a jury waiver and was sentenced to four months confinement in the county jail.

The defendant testified on his own behalf. He admitted that he was with Renton on the date in question but denied the acts attributed to him. He endeavored to explain the prior conviction of contributing to the sexual delinquency of a minor in cause number 2302, by stating that the kids ran into his house while they were burning leaves; that beer and whiskey was in his house and that it was for this reason that he was convicted. However, the record belied this explanation. Sufficient evidence identified the defendant as the Elton Harter who was the defendant in causes numbered 2302 and 29208.

The defendant denied being arrested in connection with the Stokes charge and introduced his F. B. I. sheet which failed to note such arrest, but showed fourteen arrests, six prison sentences and one additional charge of contributing to the sexual delinquency of a minor. The court asked both the defendant and his counsel if they wished this exhibit admitted in evidence and each answered affirmatively.

On cross-examination, the defendant admitted his arrest in connection with the Stokes incident. A statement made by the defendant relative thereto, which constituted a confession of the deviate sexual acts with Stokes, a minor, was admitted in evidence. On cross-examination, the defendant denied making such statement. On rebuttal, the People introduced the testimony of a deputy sheriff that the statement was in fact made.

Various witnesses testified on the defendant’s behalf that they had never known him to be involved in any sexual misconduct.

The defendant here contends that the People failed to prove by a preponderance of the evidence that he was a sexually dangerous person. He argues, obliquely, that the only sexual charges used to support the petition are misdemeanors. However, section 105-5 of the Sexually Dangerous Persons Act provides:

“At the hearing on the petition it shall be competent to introduce evidence of the commission by the respondent of any number of crimes together with whatever punishments, if any, were inflicted.” (Italics ours.)

Section 11-5 of the Criminal Code (Ill Rev Stats 1965, c 38, par 11-5) entitled “Contributing to the Sexual Delinquency of a Child,” provides:

“(a) Any person of the age of 14 years and upwards who performs or submits to any of the following acts with any person under the age of 18 contributes to the sexual delinquency of a child:
“(1) Any act of sexual intercourse; or
“(2) Any act of deviate sexual conduct; or
“(3) Any lewd fondling or touching of either the child or the person done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the person or both; or
“(4) Any lewd act done in the presence of the child with the intent to arouse or to satisfy the sexual desires of either the person or the child or both.
“ (b) It shall not be a defense to contributing to the sexual delinquency of a child that the accused reasonably believed the child to be of, the age of 18 or upwards.
“ (c) Penalty.
“A person convicted of contributing to the sexual delinquency of a child shall be fined not to exceed $1,000 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both.”

The offense above defined is a misdemeanor. (Ill Rev Stats 1965, c 38, pars 2-7 and 2-11.) The word “crime” embraces misdemeanors. Every misdemeanor is a crime, though not one of the gravest character. Van Meter v. People, 60 Ill 168, 170 (1871). The word “crime” generally includes all offenses, both felonies and misdemeanors. Consequently, the defendant’s contention that the sexual crimes to support such petition must be felonies is without merit.

The facts of this case were presented to the jury for determination. While the defendant’s testimony was subject to many infirmities, if believed by the jury, it could create a conflict on certain of the issues. However, such conflict, of itself, would not destroy the preponderance of the evidence required to sustain the verdict of the jury. Such verdict, based on credible and substantial evidence, was not rendered reversible by the fact that there was other evidence in the case, which might, if believed, have resulted in a different verdict. A verdict will not be set aside merely because the jury could have found differently or because this court might feel that other conclusions would be more reasonable. Henry v. Robert Kettell Const. Corp., 82 Ill App2d 420, 431, 226 NE2d 89 (1967).

A reviewing court is not the judge of the credibility of the witnesses, or the weight of the evidence, and it does not determine the preponderance of the evidence. Jenkins v. Hechtman, 83 Ill App2d 72, 76, 226 NE2d 383 (1967). It was within the province of the ju-ry, under the facts and circumstances of this case, to decide whether the defendant was a sexually dangerous person. We cannot say, as we must, to reverse a verdict of the jury on the disputed factual testimony, that an opposite conclusion is clearly evident, plain and indisputable. A court of review must take into consideration not only the verdict of the jury, but also the fact that the trial judge who also saw and heard the witnesses and heard the argument of defendant’s attorney, denied the defendant’s post-trial motions. Pozdro v. Dynowski, 83 Ill App2d 79, 87, 226 NE2d 377 (1967); Vasic v. Chicago Transit Authority, 33 Ill App2d 11, l1e, 180 NE 2d 347 (1961). We cannot say that the verdict and the judgment entered thereon are manifestly against the weight of the evidence.

In addition, the defendant’s contention that the evidence of the People was not of such clear and convincing nature as to prove, by a preponderance of the evidence, that the defendant was a sexually dangerous person, ignores the rule that it is within the province of the jury, as the trier of the facts, to believe certain witnesses and disbelieve others. People v. Arnold, 27 Ill2d 294, 296, 189 NE2d 241 (1963); People v. Nicholson, 55 Ill App2d 361, 370, 204 NE2d 482 (1965); People v. Wilson, 52 Ill App2d 304, 313, 202 NE2d 103 (1964).

The defendant further contends that he had no opportunity to stand trial for the offense of an attempt to contribute to the sexual delinquency of Dewey Renton, a minor, as charged in the information which issued against him; and that it was a denial of due process to admit evidence of the Renton incident at the trial wherein he was charged with being a sexually dangerous person. However, it is only after a person is charged with a criminal offense and when it appears to the State’s Attorney that the person so charged is a sexually dangerous person, that the State’s Attorney can file a petition for such determination. Such petition is filed in the same proceeding wherein the accused stands charged with a criminal offense. (Ill Rev Stats 1965, c 38, par 105-3.)

Under section 5 of the Act, supra, evidence of the commission of any number of crimes, together with the punishment inflicted, if any, may be offered in evidence. If the principal offense charged is a sexual crime, it would assuredly be relevant and would have a pertinent bearing on the defendant’s present mental condition — a matter in issue under the petition. This testimony would not deprive the defendant of his day in court and the benefit of an orderly proceeding according to the law. He would have an opportunity to refute any adverse testimony relative to the principal offense charged. The verdict of the jury or the decision of the court relative to whether the accused was a sexually dangerous person would be given only after the defendant had his opportunity to present his defense to the petition. While we fully recognize that due process of law must be observed in this proceeding because of its close resemblance to a criminal procedure (People v. Olmstead, 32 Ill2d 306, 309, 205 NE2d 625 (1965); People v. Turner, 63 Ill App 2d 353, 356, 211 NE2d 486 (1965); People v. McDonald, 44 Ill App2d 348, 353, 194 NE2d 541 (1963); Ill Rev Stats 1965, c 38, par 105-3.01), we believe that the proceedings contemplated by the Act and followed herein guarantees all the procedural safeguards and substantive protection embodied within the concept of the untainted administration of justice — the hallmark of due process. Pettigrew v. National Accounts System, Inc., 67 Ill App2d 344, 350, 351, 213 NE2d 778 (1966). The defendant further argues that he should have been tried for the principal offense — the misdemeanor — prior to being tried on the petition under the Sexually Dangerous Persons Act. However, such procedure is neither intended nor required by the Act.

It was proven by a preponderance of the evidence that the mental disorder of the defendant had existed for a period of more than one year; and that he had a criminal propensity to commit sex offenses in the nature of sexual assault or molestation of children, as was evidenced by the Stokes incident of December 8, 1956, the Billy Peppers, Bobby Peppers and Mike Phillips occurrence of November 1, 1964, and the Dewey Renton attempt of January 6, 1966. The pyschiatrists were each given the definition of a sexually dangerous person, and testified that the defendant was a sexually dangerous person as defined by the Act; and that his mental condition had existed for more than one year.

The defendant endeavored to explain away these incidents. However, when a defendant elects to justify or explain his presence at or near the scene of a crime, or his connection therewith, he must tell a reasonable story or be judged by its improbabilities. People v. Malmenato, 14 Ill2d 52, 59, 150 NE2d 806 (1958); People v. Booher, 73 Ill App2d 226, 229, 218 NE2d 779 (1966).

The defendant also complains that the trial court erred in failing to instruct the jury on the purpose of the Sexually Dangerous Persons Act, as set forth in defendant’s instruction number 8. Such alleged error need not be considered in that it was not set forth in defendant’s written motion for new trial (People v. Armes, 28 Ill2d 83, 87, 190 NE2d 812 (1963); People v. Hunter, 23 Ill2d 177, 178, 177 NE2d 138 (1961); People v. Flynn, 8 Ill2d 116, 118, 119, 133 NE2d 257 (1956)), and because the defendant failed to abstract all of the instructions which were tendered and given. People v. Bybee, 9 Ill2d 214, 221, 137 NE2d 251 (1956); People v. Weil, 243 Ill 208, 214, 90 NE 731 (1910). Nevertheless, we have gone to the record with reference to the instructions, and find that when the given instructions are considered as a series, along with defendant’s instruction number 12, that the subject matter of defendant’s instruction number 8 was adequately covered; and that the jury was properly instructed.

Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

MORAN and ABRAHAMSON, JJ., concur.


author: STOUDER, P. J.

text:
    Hilda Proehl, Petitioner-Appellant, v. Howard B. Leadley, Conservator of the Estate and Person of Etta J. Schwartz, Incompetent, and Theodore J. Weaver, Petitioners-Appellees, Etta J. Schwartz, Eugene H. Rennick, Jr., Guardian Ad Litem, and John C. Hedrich, Guardian Ad Litem, Defendants-Appellees.
    Gen. No. 66-94.
    Third District.
    September 29, 1967.

      D. J. McRae, and Andrews and Andrews, of Kewanee, for appellant.
    Eugene H. Rennick, Jr., pro se, of Toulon, Glen L. Borden, of Wyoming, and John C. Hedrick, of Princeton, for appellees.
   STOUDER, P. J.

This is an appeal by Hilda Proehl, Appellant, niece of Etta Schwartz, the alleged incompetent, from an order of the Circuit Court of Stark County appointing Appellee, Howard Leadley conservator of the estate of Etta Schwartz. Etta Schwartz and Fannie Bogin were cotenants in a 104-acre tract of farmland located in Stark County. Fannie Bogin died intestate in 1962, leaving as her only heirs at law Etta Schwartz, six nieces and nephews, including Hilda Proehl, Appellant herein, and two descendents of nieces or nephews. Theodore Weaver managed such farm after the death of Fannie Bogin with the approval of the nieces and nephews and with the disapproval of Etta Schwartz. Negotiations for the purchase of the other interests in the farm by Etta Schwartz were unsuccessful. Etta Schwartz and Hilda Proehl, represented by Attorneys Andrews and Andrews, and Attorney Donald McRae, instituted partition proceedings. The remaining heirs were named defendants in the partition proceeding and were represented by Attorneys Liggett and Borden. Howard Leadley, a real estate broker, farm manager and Mayor of Wyoming, Illinois, was appointed Commissioner in the partition proceeding. David Kieser purchased the land at the partition sale for $700 per acre. Distribution of the proceeds of the partition sale were completed in March or April of 1966. The possible incompetency of Etta Schwartz having been suggested in said proceeding, Donald McRae was appointed next friend to receive the share of the proceeds payable to Etta Schwartz.

On March 3, 1965, Attorneys Liggett and Borden, with the approval of the nieces and nephews, filed a petition in behalf of Theodore Weaver requesting his appointment as conservator for Etta Schwartz, alleging her incompetency by reason of advancing age and poor physical health. Etta Schwartz, represented by John Hedrich, objected to the granting of such petition. A cross petition for the appointment of Joseph Stetson as conservator was filed. On April 21, 1965, a motion for change of venue was granted but no further action was taken with respect to the petitions until late in April, 1966.

According to the testimony of Leadley he and Etta Schwartz conferred with Attorneys Andrews and McRae early in March, 1966, and at that time Etta Schwartz indicated that she wanted Leadley to act as her conservator. As a result of this conference it was Leadley’s understanding that the attorneys would seek his appointment as conservator. Also in March 1966, David Kieser, the purchaser of the 104-acre tract at the partition sale, approached Herbert Collister, in whose home Etta Schwartz was and had been living for about four years, concerning the possible sale to him of 80 acres of 240 acres owned by Etta Schwartz in her own right. According to Leadley, Collister talked with Etta Schwartz and she requested that Leadley discuss the possible sale with her and after some negotiations a sale price for the 80-acre tract at $750 per acre was agreed upon. According to Leadley, prior to a final agreement, he discussed the terms of the sale with Donald McRae on the assumption that the latter was the attorney for Etta Schwartz and Leadley further testified that McRae approved the sale, suggesting that if the sale were agreed upon a contract should be drawn. An oral agreement for the sale was entered into on March 23, 1966, and at that time David Kieser delivered a check in the amount of $6,000 as down payment to Leadley, payable to Etta Schwartz. Within a day or two Leadley and Kieser went to the offices of Attorney Andrews for the purpose of having a contract drawn and were advised that it would be more appropriate to delay the drawing of a contract until Kieser had made the final payment required by the partition sale. Such final payment was made within the next few days and Leadley again sought an appointment to draw the contract at which time he was advised that the contract could not be drawn because Etta Schwartz was in the hospital. Leadley discussed this matter with Etta Schwartz and according to him she indicated that she wanted him to handle her affairs and suggested that he talk with another attorney to see what could be done. Leadley discussed the matter with Attorney John Renniek and the latter prepared a trust deed and trust agreement by which documents all of Etta Schwartz’s property was conveyed to Leadley as trustee for her benefit. On the following day, April 5, 1966, Leadley and Collister went to the hospital in Kewanee and the documents were signed by Etta Schwartz, the trust deed being thereafter recorded.

There is much conflicting testimony in the record concerning the mental and physical competency of Etta Schwartz on the day these documents were executed. On April 13, 1966, a contract for the sale of the 80 acres to David Kieser was executed by Leadley as trustee. According to Leadley’s testimony he believed that a contract should be drawn between Etta Schwartz and David Kieser and both before and after the execution of the deed to him as trustee he had talked to Andrews or McRae several times concerning such a contract. Leadley was under the impression that either Andrews or McRae had filed a petition for his appointment as conservator and was unaware of anything to the contrary until he learned from Collister that the attorneys had suggested that Collister approach Etta Schwartz with the suggestion that she approve Earl 0. Turner, President of the bank at Toulon, as her conservator because he might be more cooperative than Leadley. After learning of the trust deed the incompetency proceedings were reactivated and petitions were filed by Appellant and Donald McRae requesting the appointment of Earl 0. Turner, President of the bank at Toulon, as conservator for the estate of Etta Schwartz. Prior to the commencement of hearings on the petitions on July 11, 1965, pursuant to motion by Attorneys Liggett and Borden, the original petition filed in behalf of Theodore Weaver was amended to request the appointment of Leadley as conservator. Exhibits were admitted during the hearings indicating that all of the nieces and nephews, excepting Appellant Hilda Proehl, had approved of the substitution of Leadley as conservator for Theodore Weaver. Also two exhibits purporting to show Etta Schwartz’s approval of Leadley, executed in May, 1966, were admitted into evidence. The hearings resulted in the appointment of Leadley as conservator, the court directing that John Hedrich, guardian ad litem, request the court to determine the validity of the land sale. This appeal is from the order appointing Leadley conservator.

Appellant contends that Leadley was disqualified because of his interest in the land transfer and his trusteeship and that because of this disqualification the trial court erroneously abused its discretion in appointing him. The Statute governing the appointment of a conservator is section 113, chapter 3, El Rev Stats 1965, which provides “Upon the filing of a verified petition by a reputable citizen of this state or on its own motion, the court may adjudge a person an incompetent pursuant to this Act and appoint a conservator for him.” Initially we note that Appellant in her brief has directed our attention to the excellence of the qualifications of the person she sought to have appointed conservator. No claim is made that such person was entitled to the appointment because of any preference or priority created by the Statute. Accordingly no issue is presented concerning the relative qualifications of the persons proposed and the sole issue presented upon this appeal is whether the person named as conservator is disqualified from acting.

Although prior to the hearings Leadley moved that the petitions for appointment of a conservator be dismissed as being unnecessary in view of his appointment as trustee, it appears from the record that at the time of the hearings, commencing July 11, 1966, all parties, including the guardian ad litem, conceded that Etta Schwartz was incompetent by reason of advanced age and poor mental and physical health. It is also undisputed that all of Etta Schwartz’s next of kin were, and are, nonresidents of the State of Illinois and hence not qualified to act as conservator of her estate, Ill Rev Stats, c 3, § 120.

In arguing that Leadley was disqualified from acting as conservator, Appellant contends that Leadley, by virtue of the circumstances, has a conflicting interest adverse to his duties as conservator and to the rights of Etta Schwartz. Such adverse interest exists, according to Appellant, because of Leadley’s interest in the real estate sale and his interest as trustee.

We believe that it is well settled that an incompetent is entitled to have his rights protected by representatives free from any interest which would prevent or impair the proper assertion or protection of such rights. An incompetent person or a person alleged to be incompetent is a ward of the court and entitled to the special protection of the court whenever the rights of such incompetent may be affected. The paramount duty of the conservator is, as the name implies, to conserve and protect the assets of an incompetent person and to see that such assets and the income therefrom are properly applied to the use, enjoyment and benefit of such incompetent. The duties and responsibilities of a conservator are those as set forth in the statute and the supervisory function of the court assures compliance therewith. It would thus appear that if a person should be deemed disqualified from acting as conservator by reason of an adverse interest, such interest should be that which would impair his ability to carry out his statutory duties under the supervision of the court. In the cases called to our attention by Appellant, a particular right of an incompetent was the issue before the court. In Linebaugh v. Atwater, 173 Ill 613, 50 ÑE 1004, the court held that the interests of minors were not properly represented where it appeared that the father as next friend had instituted an action seeking to establish that such minors owned a one-half interest in certain property and that he owned the other one-half interest in the property, it appearing that the minors may have been entitled to the entire interest in the property. In Millage v. Noble, 334 Ill 315, 166 NE 50, the court held improper the appointment of a guardian ad litem to represent both the interest of an infant and an incompetent where it appeared that the assertion of rights in behalf of the incompetent would defeat those of the infant. In Clarke v. Chicago Title & Trust Co., 393 Ill 419, 66 NE2d 378, a petition for the sale of a residence was filed by a guardian ad litem for infant remaindermen, the mother of such infants having a life interest in the premises. The purpose of the sale was to prevent waste since the rental income from the property was insufficient to keep the property in repair. The father, as a contingent remainderman, argued that the guardian ad litem and his attorney were conspiring with the mother to deprive the infants of their interest in the property. The court, although discussing the rights of infants to be represented by persons without any conflicting interest, held that the sale of the residence was for the best interest of the infants as well as the life tenant and the distribution of the proceeds being subject to further order of court the question of an adverse interest, if any, would or could arise only in connection with the distribution of such proceeds. Although the facts and issues in the Clarke case are quite different from those in the instant case it would appear that the reasoning employed is related to the instant case. There is no doubt that it is for the best interest of Etta Schwartz that she be deemed incompetent and that a conservator be appointed for her estate. In this proceeding no issue is presented concerning the property rights of Etta Schwartz, her conservator or any other person. Appellant’s argument that an adverse interest exists is anticipatory and premature and is based on the hypothesis that Leadley might have a personal interest in upholding the sale or in asserting his rights as trustee. In an appropriate proceeding where such issues were presented for adjudication it is possible an adverse interest might be found. However from the state of the record before us there is no evidence of an adverse interest, fraudulent conduct or bad faith from which it may be concluded that the trial court abused its discretion.

The motion of Appellee to dismiss the appeal is denied since in our view as heretofore expressed the subsequent termination of the trust does not render the issues moot.

Finding no error in the judgment of the Circuit Court of Stark County the judgment of said court is affirmed.

Judgment affirmed.

ALLOY and CORYN, JJ., concur.