author: MR. JUSTICE DAVIS

text:
    Vito Fiore and Della Fiore, His Wife, Plaintiffs-Appellees, v. City of Highland Park, a Municipal Corporation and Body Politic of the State of Illinois, Defendant-Appellant.
    Gen. No. 65-150.
    Second District.
    October 28, 1966.
    Rehearing denied November 30, 1966.

      Thomas H. Compere, Corporation Counsel, of Highland Park, for appellant.
    John F. Grady, of Waukegan, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

Plaintiffs, Vito and Della Fiore, brought this suit against the City of Highland Park seeking a declaratory judgment that the municipal zoning, as applied to their property, was invalid. After a full hearing, the trial court entered such judgment and the defendant City has appealed.

Plaintiffs’ property consists of approximately 21 acres, purchased in 1947 for $16,500. Five of the 21 acres are not included in this lawsuit. The plaintiffs maintained their residence and conducted a nursery operation on about seven or eight acres of this land and the balance of the land has remained idle. When the plaintiffs purchased the land, part of it was zoned “A, Country Estate” —a residential use — requiring a minimum lot size of three acres, and the other part “B-l” — also a residential use — requiring a minimum lot size of 20,000 square feet.

The west edge of the tract, approximately 750 feet in length, fronts on Skokie Highway — a highly travelled four-lane arterial highway — which offers direct access to plaintiffs’ property to northbound traffic only. The land immediately across the highway is zoned “I” industrial and is vacant except for several advertising signboards. Across the highway and immediately to the south of the tract in question, are a car wash and two gasoline service stations. The “I” industrial zoning across the highway would permit apartment or office and research use, as well as the light industrial or commercial use.

Immediately to the north is the Bob O’Link golf course. To the north of that is the Sunset golf course and, adjoining the highway, a tract of land owned by the Encyclopedia Britannica. The latter tract consists of approximately 10 acres and is either zoned “G-l, Office, Research and Compatible Use” or is intended for such use. It is undeveloped, and the encyclopedia company is attempting to sell it. To the east of the land in question is a tract owned by the park district, which is unimproved. Immediately to the south, adjoining the highway, is a 6-acre vacant piece of land referred to as the “Johnson” tract. To the south of this, and adjoining the 5 acres of plaintiffs’ land which is not a part of this suit, is a high-class residential development. Plaintiffs’ 5-acre parcel of land which is not a part of this suit is zoned residential and connects with the land in litigation in such a manner that it is referred to herein as an “axe handle.” Most of the general area, as most of the City of Highland Park, is developed with single-family residences.

The plaintiffs in December of 1963 filed a petition with the defendant seeking to have 300 feet in width of their land along Skokie Highway rezoned “G — 1,” for office and research use, and the balance of the 16-acre tract rezoned “F” for multiple-family construction. Hearings were held in February and March of 1964 but no findings or recommendations were made by the City Plan Commission. In June of 1964, the Plan Commission indicated it would hold new hearings on the plaintiffs’ petition to consider the rezoning of these premises, along with other property along Skokie Highway, as a part of an overall plan. The plaintiffs then instituted this suit. Subsequently, the City rézoned all of the plaintiffs’ land here in question, for office and research use, thus denying their petition insofar as it sought to have a part of their land rezoned for apartment use.

As a threshold question, we must first examine the defendant’s contentions that the filing of this suit before the City Plan Commission had concluded its hearings, and the presentation of different and additional evidence at the trial from that presented at the legislative hearings, contravenes the doctrine that the property owner must exhaust administrative remedies before seeking a declaratory judgment, as set forth in Bright v. City of Evanston, 10 Ill2d 178, 180, 181, 139 NE2d 270 (1957).

This is not an administrative review proceeding and the presentation of evidence bears no relation to the Bright rule. As a practical matter, the evidence required to prevail before the zoning body is often different, both as to quantity and nature, than that necessary to spstain the burden of proof subsequently in a court of law. Generally, an adverse ruling by the administrative or legislative agency would tend to place the landowner at a disadvantage. Under such circumstances, we would expect plaintiffs to offer somewhat different evidence in the trial before a court of law than that presented before the Plan Commission, and find no reason to preclude new evidence as such, if not otherwise objectionable.

Subsequent Supreme Court decisions have clearly indicated that the Bright rule is not jurisdictional. It is an expression of judicial policy which seeks to assure the local authority the opportunity of correcting errors and settling disputes at that level, thus avoiding the delay and expense of judicial intervention. Westfield v. City of Chicago, 26 Ill2d 526, 528, 187 NE2d 208 (1963). Plaintiffs here sought relief from the local authority, which either refused to act on its petition, or substituted the Commission’s overall plan for rezoning the land in the area for the specific relief sought by plaintiffs’ petition. After suit was filed and long prior to the trial of this cause, the Plan Commission acted on its own overall plan in a manner which denied the zoning sought by plaintiffs. Under these circumstances, to require plaintiffs to proceed further before the Plan Commission would have been a useless act. Such futility is not the purpose of the Bright doctrine. Van Laten v. City of Chicago, 28 Ill2d 157, 159, 160, 190 NE2d 717 (1963).

It would serve no useful purpose to reiterate here the oft-repeated factors to be considered in determining whether a given zoning ordinance is invalid as applied to particular property. See: Myers v. City of Elmhurst, 12 Ill2d 537, 543, 544, 147 NE2d 300 (1958); La Salle Nat. Bank of Chicago v. County of Cook, 12 Ill2d 40, 46, 47, 145 NE2d 65 (1957); Hoffmann v. City of Waukegan, 51 Ill App2d 241, 244, 201 NE2d 177 (1964). Such factors will be referred to herein insofar as they are relevant to the determination of this case.

As noted, this case comes to us in a somewhat different posture than most zoning cases. After the plaintiffs had filed their petition to rezone their property, the City rezoned this land, along with other land along the east side of Skokie Highway, “G-l, Office, Research and Compatible Use” (hereinafter called “O & R”). The City’s action at this time was a part of an overall plan as to this area and amounted to a denial of plaintiffs’ petition.

Plaintiffs’ basic contention is that their property is rendered virtually useless by the 0 & R zoning, and that such zoning ordinance bears no substantial relationship to the public welfare. The evidence indicates that the City of Highland Park has little land that is presently being used or developed for office and research use; and that this type of land use has developed extensively in the area northwest of Chicago, in the direction of the O’Hare airport, rather than in the area due north of Chicago and in the vicinity of the City of Highland Park.

The Encyclopedia Britannica property, situated a short distance north of the plaintiffs’ property, has been offered for sale as 0 & R property since 1961 and virtually no inquiries have been received. The same can be said for other 0 & R land in the area, except that as to the other land, there have been less extensive promotional activities in attempting its sale. The same factual circumstances exist relative to the vacant land across the highway, which can be used for office and research purposes.

The defendant argues that the Encyclopedia Britannica land has not been sold because the asking price is too high. It would seem, however, that if the land were desirable for 0 & R use, the intensive efforts which were made seeking its sale, would at least have produced some offers to test the firmness of the asking price. Also, a real estate broker who was engaged to sell the land, sent out 7,500 brochures to potential purchasers, describing the property without mention of the price. Yet, no inquiries were received.

The plaintiffs have made a rather intensive, but brief, effort to promote the sale of their land under its 0 & R zoning, and while it may be questioned whether they truly desired to sell their land as O & B, their efforts — which appeared both substantial and sincere — likewise-brought no inquiries of substance. There appears little need within this community, immediate or potential, for the O & B zoning classification given to plaintiffs’ land.

From the evidence adduced, it appears that the failure of office and research development in the City of Highland Park may be attributed to a shortage of labor supply for such business concerns, a lack of housing for employees of such concerns, and an inadequacy of public transportation in the area. The restrictions placed by the City of Highland Park under its O & B zoning ordinance also drastically limit the attractiveness of such land for potential O & B development.

Under the defendant’s zoning restrictions, the minimum lot size for O & B use is four acres; buildings cannot occupy more than 30 percent of the lot; the front yard must be at least 150 feet in depth with no parking permitted; side and back yards must be at least 50 feet; and the building height may not. exceed 30 feet. The ordinance further provides that none of the following activities may be done in any building located within 500 feet of a residential zone, to-wit: testing, storing, cleaning, repairing or servicing. This provision is especially significant with reference to the plaintiffs’ land because of its proximity to residential zones, and these restrictions would render only a small portion of the land available for the O & B use to which a majority of such potential O & B users would put the land. As a result, plaintiffs’ land is rendered highly unmarketable by the defendant’s zoning.

The restrictive effect of the above provisions is graphically portrayed by the following exhibit, which was admitted in evidence and which indicates the size and location of O & B buildings permitted under such ordinance with reference to plaintiffs’ land and the adjoining properties.

We recognize that the zoning ordinance adopted by the defendant is presumed valid, and the burden of showing it unreasonable and oppressive, as applied to plaintiffs’ land, rested upon them. Camboni’s, Inc. v. Du Page County, 26 Ill2d 427, 432, 187 NE2d 212 (1963); First Nat. Bank of Lake Forest v. County of Lake, 7 Ill2d 213, 225, 130 NE2d 267 (1955). In challenging the ordinance’s validity as applied to their property, the burden was on the plaintiffs to overcome this presumption, and to prove by clear and convincing evidence that the ordinance was unreasonable and unrelated to public health, safety or welfare. Bennett v. City of Chicago, 24 Ill2d 270, 273, 274, 181 NE2d 96 (1962); Hoffmann v. City of Waukegan, 51 Ill App2d 241, 244, 201 NE2d 177 (1964).

Due to this presumption, if it appears from all of the evidence that there is justification for a legitimate difference of opinion as to the reasonableness of the ordinance, the legislative judgment of the City must then be upheld. Urann v. Village of Hinsdale, 30 I112d 170, 175, 195 NE2d 643 (1964); First Nat. Bank of Lake Forest v. County of Lake, 7 Ill2d 213, 226, 130 NE2d 267 (1955) ; Bowler v. Village of Skokie, 57 Ill App2d 321, 325, 207 NE2d 117 (1965). However, the fact that there is a difference of opinion among the witnesses — lay and expert — , does not mean that the court must find that the reasonableness of the ordinance is debatable and, hence, uphold the ordinance. In cases of this nature, a court must expect differences of opinion. It is for the court to determine from all of the facts whether the differences of opinion are reasonable and justifiable. Myers v. City of Elmhurst, 12 Ill2d 537, 544, 147 NE2d 300 (1958); La Salle Nat. Bank of Chicago v. County of Cook, 12 Ill2d 40, 47,145 NE2d 65 (1957).

To sustain the validity of a zoning classification, it must bear a substantial relation to the public health, safety, comfort, morals or general welfare. Marquette Nat. Bank v. County of Cook, 24 Ill2d 497, 501, 502, 182 NE2d 147 (1962); First Nat. Bank & Trust Co. of Evanston v. County of Cook, 15 Ill2d 26, 31, 153 NE2d 545 (1958). We are of the opinion that the trial court was correct in finding no such relation here. The community need for such zoning, present or future, was not present. There was other suitable land so-zoned, or at least zoned so as to permit office and research use, among others. The lack of interest in such development in this community indicated that presently the land available for such use was more than adequate.

Nor did the zoning appear to be the result of careful and thoughtful planning, as urged by the defendant. The parcel of land immediately south of plaintiffs’ and designated on the exhibit as the “Johnson” tract, was rezoned O & R at the same time as plaintiffs’ land. Yet because of the 500-foot setback from residential zones required of buildings to be used for the most common O & R usages, no part of this land may be used for such O & R usages, even though it is so-zoned. It appears from the record that this limitation was not the result of careful planning but, rather, of oversight. The setback, parking and yard restrictions, as applied to the properties on the exhibit, likewise indicate inadvertent planning.

As to the surrounding area, the O & R rezoning adopted by the defendant somewhat diminished in value the single-family residential properties to the south. It had no adverse effect on the park district land to the east, the Bob O’Link or the Sunset golf courses to the north, the Encyclopedia and other lands further north, or the industrial and residential lands west of Skokie Highway. The apartment use to which the plaintiffs seek to devote the land, affects the surrounding area in much the same manner. The only difference is that defendant’s witnesses testified that this proposed use would have a greater adverse effect on the nearby residential area than would the O & R use. There was no evidence, however, as to the quantity of this adverse effect.

The uses and zoning of the surrounding areas do not dictate that either the O & R or the apartment zoning is more suitable for the property in question; and it cannot really be said that characteristics of the surrounding area suggest one use over the other. This is true because of the absence of a pattern which suggests the use to which this land should be put, and due to the lack of evidence of significant harm to the surrounding area by either the O & R or apartment use of this land.

It is fair to conclude from the record that there is a need for additional apartment facilities in the community. The potential developer of plaintiffs’ land — the real party in interest — has contracted to purchase plaintiffs’ land for $250,000 conditioned upon obtaining the rezoning. Defendant’s own witnesses concede that the type of apartment complex contemplated would be highly desirable if located in the right place, and there is no showing in the record that plaintiffs’ land was not in the right place. Clearly, in view of the apparent lack of need and interest in O & R land in the community, coupled with the severe effects of the setback restrictions on plaintiffs’ land, there cannot be anticipated any reasonably immediate use of plaintiffs’ land for O & R purposes. Under these circumstances, the zoning classification given plaintiffs’ land serves no public purpose and most certainly deprives the plaintiffs’ land of considerable value. Chicago Title & Trust Co. v. City of Harvey, 30 Ill2d 237, 239, 241, 195 NE2d 727 (1964).

Courts have often stated that the validity of a zoning ordinance as applied to a specific piece of property depends on the sum total of the particular facts found in each case. First Nat. Bank & Trust Co. of Evanston v. County of Cook, 15 Ill2d 26, 31, 153 NE2d 545 (1958); Koplos v. City of Rockford, 62 Ill App2d 268, 272, 210 NE2d 629 (1965). The loss in value to plaintiffs’ land is not, in itself, sufficient to justify setting aside an ordinance as unreasonable. Koplos v. City of Rockford, supra. When, however, the sum of the numerous factors considered together show that there is no reasonable basis in the public welfare for requiring plaintiffs to suffer such a loss, the presumption as to the validity of the ordinance is overcome. Marquette Nat. Bank v. County of Cook, 24 Ill2d 497, 501, 502, 503, 182 NE2d 147 (1962); Krom v. City of Elmhurst, 8 Ill2d 104, 115, 116, 133 NE2d 1 (1956). Where the gain to the public is small as compared with the hardship imposed upon the owners of the land by a certain zoning restriction, no valid basis exists for the exercise of the police power. First Nat. Bank & Trust Co. of Evanston v. County of Cook, 15 Ill2d 26, 31, 153 NE2d 545 (1958); Northern Trust Co. v. City of Chicago, 4 Ill2d 432, 438,123 NE2d 330 (1954). We hold that the trial court was correct in finding that the plaintiffs had sustained their burden in establishing the invalidity of the O & R zoning ordinance as applied to their property. La Salle Nat. Bank of Chicago v. County of Cook, 12 Ill2d 40, 47, 48, 145 NE2d 65 (1957).

The defendant has also argued that the plaintiffs’ land was equally suitable for single-family residential development. Such fact, if true, would not be determinative of any issue in this case. When the plaintiffs first sought to have their property rezoned, it was zoned for single-family residential use. Had the property remained so-zoned, the validity of such zoning, measured by the standards to which we have referred, would properly have been an issue in determining whether the plaintiffs’ petition was rightly denied. By the time this matter came to trial, however, the legislative body had already made a determination as to the classification of this property. It had decided that it was in the interest of the general welfare that this land be zoned O & R — not single-family.

What the plaintiffs are attacking in this court is the denial of their petition seeking multiple-dwelling use. What they must challenge is the validity of the existing zoning as applied to their land and not the validity or suitability of any other prior or possible alternative zoning classifications. The presumption favoring the validity of the zoning ordinance applies only to the existing legislative determination and not one which that body itself had previously determined to no longer be in the public interest. It is neither the province nor the duty of the courts to assume the role of a zoning body and determine the most appropriate or suitable zoning for a parcel of land. Treadway v. City of Rockford, 24 Ill 2d 488, 493, 182 NE2d 219 (1962).

The defendant relies on the Treadway case as indicative of the situation in this case. It argues that because the trial court held the O & R zoning invalid as applied to plaintiffs’ land, it reverted or “remained” in its prior single-family zoning classification. This is not the case, however. The amending ordinance was general in that it did not apply solely to the property in question. It rezoned several parcels in this general area to O & R use. As a part of the amending ordinance, it was provided that all other ordinances in conflict with the provisions hereof “are hereby repealed.” The trial court decreed that the classification of plaintiffs’ property as “G — l, Office, Research and Compatible Use” under the zoning ordinance, was void. It made no finding that any other part of the amending ordinance, including the repeal of inconsistent ordinances, was void. The effect of the decree was to leave the property “unzoned.” Sinclair Pipe Line v. Village of Richton Park, 19 Ill2d 370, 377-379, 167 NE2d 406 (1960); Harshman v. City of DeKalb, 64 Ill App2d 347, 352, 212 NE2d 146 (1965).

Insofar as the trial court decreed that the single-family zoning restriction was void as applied to plaintiffs’ land, its decree was obiter, dicta and invalid; and the further part of the decree which provided that “The defendant is hereby ordered to permit the said portions of plaintiffs’ property to be used for multiple-family dwellings under the classifications ‘F’ of the Highland Park Zoning Ordinance . . . is likewise improper and void in that it is too broad. Thereby, the court assumed the legislative function of determining the ultimate zoning classification of the property in question. Reeve v. Village of Glenview, 29 Ill2d 611, 616, 617, 195 NE2d 188 (1963); Harshman v. City of DeKalb, supra, 352, 353. The most that a court may do after declaring an existing zoning ordinance void as applied to certain property is to find that the specific use contemplated by the owner is reasonable and may be permitted.

Under such circumstances, the court may frame its decree in the light of the evidence before it with reference to the specific proposed use; and may decree such contemplated use to be a reasonable one. Such decree neither impinges upon the legislative function, nor in effect leaves the property unzoned, with its potential problem of further litigation due to further rezoning by the municipality ; and it limits plaintiffs’ use of the land to that contemplated and indicated by the record. Sinclair Pipe Line v. Village of Richton Park, supra, 379; Harshman v. City of DeKalb, supra.

In the case at bar, the plaintiffs presented evidence as to the nature of the apartment complex they intended to construct on these premises. The decree of the trial court should be framed with reference to the evidence of this intended use and permit such use only, rather than any permitted under the applicable multiple-family zoning restriction. If the court finds that such evidence is not sufficient to enable it to intelligently frame its decree, it should hear additional evidence pertinent to such use.

That part of the decree of the trial court which declared the existing zoning void, as applied to the property in question, is affirmed; and that part of the decree which adjudged the single-family zoning restriction void as applied to plaintiffs’ land, and which ordered the defendant to permit the said portions of plaintiffs’ property to be used for multiple-family dwellings under the “F” classification of the zoning ordinance, is reversed; and the cause is remanded to the trial court with directions to frame its decree pertaining to the permissive use of the land in question with reference to the evidence of plaintiffs’ contemplated use and to hear further evidence in this regard, if necessary.

Affirmed in part and reversed in part; and remanded with directions.

MORAN, P. J. and ABRAHAMSON, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard W. Stangeland, Defendant-Appellant. The People of the State of Illinois, Plaintiff-Appellee, v. Edward Shippert III, Defendant-Appellant.
    Gen. Nos. 66-7, 66-8. (Consolidated.)
    Second District.
    October 28, 1966.

      Gunner and Keller, and Thomas M. Magdich, of Dixon, for appellants.
    Henry S. Dixon, State’s Attorney, of Dixon, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal from judgments entered on verdicts of the jury which found the defendants, Richard W. Stangeland and Edward Shippert III, guilty of drag racing in violation of the provisions of the Uniform Act Regulating Traffic on Highways. (Ill Rev Stats 1963, c 95%, § 145.1.) The cases were consolidated before trial, and the defendants have appealed the judgments entered on the verdicts.

The charges arose out of activities that took place sometime between 2:30 and 3:00 a. m., on April 30, 1965. When the defendants were first seen by the police officers, they were operating two autos, which were parked side by side with their motors running. The visibility was good and there was no other traffic in the area. The autos were facing west about 100 feet west of the nearest intersection. The car of the defendant, Stangeland, was in the right-hand lane of an east-west street and that of the defendant, Shippert, was located in a parking lot which ran parallel with the street for its entire length— a distance of two blocks, or approximately 600 feet.

The defendants’ autos then moved forward simultaneously, creating smoke and blowing up dust as they accelerated speed. The cars continued side by side for a distance of 200 to 400 feet, and then Stangeland’s car pulled ahead of Shippert’s car which then moved on to the street behind Stangeland. The police officers immediately pursued, and one of them testified that Stangeland’s car moved forward and “accelerated to a high speed.”

Sec 145.1, Ch 95%, Ill Rev Stats 1963, defines drag racing as follows:

“For the purpose of this section, ‘drag racing’ means the act of 2 or more individuals competing or racing on any street or highway in this state in a situation in which one of the motor vehicles is beside or to the rear of a motor vehicle operated by a competing driver and the one driver attempts to prevent the competing driver from passing or overtaking him.”

The question before this court is whether the evidence is sufficient to support the convictions, which must stand or fall together.

The same requirements as to burden of proof apply in cases involving violations of the Uniform Act Regulating Traffic on Highways of the State of Illinois as in other criminal cases. People v. Perlman, 15 Ill App 2d 239, 244,145 NE2d 762 (1957). In criminal cases, it is the duty of this court to review the record when the issue of the sufficiency of the evidence is raised and determine whether the jury was justified in returning its verdicts of guilty — whether there was sufficient evidence to remove all reasonable doubt of defendants’ guilt. The People v. Holt, 398 Ill 606, 612, 76 NE2d 474 (1948).

In The People v. Schoop, 288 Ill 44, 122 NE 836 (1919) at pages 47 and 48, the Supreme Court offered a word of caution concerning the restraint to be exercised by a reviewing court in overturning jury verdicts in criminal cases on the ground of not being supported by the evidence, as follows:

“It is only when this court is able to say, from a careful consideration of the whole testimony, that there is clearly a reasonable and well founded doubt of the guilt of the accused, that it will interfere on the ground that the evidence does not support the verdict.”

We do not believe that there is clearly a reasonable and well-founded doubt of the guilt of the defendants in the case at bar. In most instances, violations of this statute must necessarily be determined by reasonable and logical inferences from the observed conduct of the defendants. The circumstances in this case are adequate to support the jury’s determination that the defendants were, beyond a reasonable doubt, involved in a competition proscribed by the statute. The hour of the offense, its visibility by the police officers, the unusual and simultaneous starting point of the cars and their juxtaposition, the dust, smoke and commotion caused by their acceleration, the fact that one car pulled ahead of the other, the testimony as to the rate of acceleration of one of the cars and the paths which they followed, all support the jury’s conclusion that the defendants were racing and attempting to prevent one from overtaking the other.

State v. Hart, 2 Conn Cir 27, 193 A2d 903 (1963) cited by defendants, is clearly distinguishable from the case at bar. In that case the defendant offered a plausible explanation for his actions which negated the statutory violation and which, in fact, was substantiated by the testimony of the complainant and one other witness. Such is not the case here, where the defense rested without the presentation of any witnesses.

The defendants further urge that there was a lack of evidence relative to the speed at which they were driving at the time and place in question. The record reveals that a police officer testified for the State that the ’56 Chevrolet “accelerated to a high speed.” No objection was offered to this testimony. If a witness is unable to testify as to the rate of speed a vehicle was travelling in miles per hour, he may characterize its speed as fast or slow. McKenna v. Chicago City Ry. Co., 296 Ill 314, 322, 129 NE 814 (1921); Hester v. Goldsbury, 64 Ill App2d 66, 71; Callaghan’s Ill Evid, Vol 4, § 7.33.

Under the facts before us, we would not be warranted in concluding that the jury’s verdicts are “palpably contrary to the weight of the evidence, or that the evidence is so unreasonable, improbable or unsatisfactory as to justify a reversal . . . .” The People v. Kessler, 333 Ill 451, 461, 164 NE 840 (1929). Accordingly, the judgments appealed from must be affirmed.

Judgments affirmed.

MORAN, P. J. and ABRAHAMSON, J„ concur.


text:
    People of the State of Illinois, Appellee, v. Edward E. Merrill, Appellant.
    Gen. No. 66-19.
    Second District.
    October 28, 1966.

      Julius Lucius Echeles, Mitchell H. Caplan, and Earl B. Slavitt, of Chicago, for appellant.
    John L. Moore, State’s Attorney, of Oregon, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the . court.

The defendant, Edward E. Merrill, was charged by information with the commission of the offense of burglary “in that he did, while within the limits of Ogle County, and without authority, knowingly enter into the tavern building owned by Welcome Inn, Inc., a corporation, and did therein commit a theft by removing a safe belonging to the said corporation.” After trial by jury, the defendant was found guilty as charged and, after hearings on post-trial motions, was sentenced to a term of one to five years in the penitentiary. He appealed the verdict of the jury.

The defendant first argues that the State failed to prove the corporate existence of the “Welcome Inn, Inc.” in Ogle County; and that even if a corporate existence were proven, the proper corporate name was “Hillcrest Welcome Inn, Inc.” and there was, hence, a fatal variance.

To establish the existence of the corporation burglarized, the State called Charles Cole, the manager of the tavern, as its witness, who testified as follows:

“Q. Mr. Cole, do you know of your own knowledge whether or not Welcome Inn is an incorporated business ?
“Mr. Echeles (defense counsel): I object to the leading nature of the question.
“The Court: Reframe the question.
“Q. Do you know what kind of business organization Welcome Inn is ?
“A. Yes sir, it is incorporated.
“Q. Mr. Cole, do you know who owned the safe that was removed on the 15th of August 1965 from the building ?
“A. By the corporation.
“Q. Who owned the building from which the safe was removed ?
“A. The corporation.”

After the above questions were asked and the answers given, the defendant objected to them and moved “that they be stricken as improper questions and improper answers and for other grounds.” No further basis was given for the objections, and they were overruled.

Proof of the corporate existence of the entity which was burglarized was essential to the State’s case. The People v. Clavey, 355 Ill 358, 366, 189 NE 364 (1934). Such proof may be made by introducing the corporate charter or a certified copy thereof, or a prima facie case as to its corporate existence may be established by user. Ill Rev Stats 1965, c 38, § 160-1. Also, it has long been held that a corporate existence may be shown by direct oral testimony if no objection is made to that method of proof. The People v. Gordon, 5 Ill2d 91, 95, 125 NE2d 73 (1955); The People v. Burger, 259 Ill 284, 287, 102 NE 751 (1913).

Furthermore, objections to evidence should specify the testimony considered objectionable and designate the features complained of; and specific objection to the admission of evidence must be made in all instances where the objection, if pointed out, might be obviated or corrected by the adverse party. The People v. Trefonas, 9 Ill2d 92, 98,136 NE2d 817 (1956).

The only specific objection made by defendant was to a question as being leading. The question was then rephrased and the witness testified that the Welcome Inn was a corporation and that it owned the safe and building in question. No further objections were offered until this line of questioning was completed, and then the only objection was general in nature — that the questions and answers were “improper” and “for other grounds.” Under the circumstances, we believe that the court committed no error in overruling the objections, and that the corporate existence was thus sufficiently established.

After moving for a directed verdict at the close of the State’s case, the defendant chose to proceed and offered evidence. It is well established that if any error were made in refusing to grant defendant’s motion for a directed verdict at the close of the State’s case, the defendant waived the error by proceeding. The People v. Slaughter, 29 Ill2d 384, 389, 194 NE2d 193 (1963); The People v. Washington, 23 Ill2d 546, 548, 179 NE2d 635 (1962); People v. Lacey, 49 Ill App2d 301, 305, 200 NE2d 11 (1964).

After the close of the State’s case, the corporate existence was again established by defendant’s proof and the State’s proof in rebuttal, and at that time the court again refused to direct a verdict of not guilty. The defendant thereupon obtained leave to reopen the case and proceeded to prove the corporate existence of “Hillcrest Welcome Inn, Inc.” by its Articles of Incorporation. One of the defendant’s witnesses testified that this corporation was formed for the purpose of operating a tavern in the Village of Hillcrest, Ogle County, Illinois, and that the corporation owned the building it occupied and did operate a tavern business on that date. Defendant also introduced evidence that there “. . . was no other tavern in Hillcrest or any place in Ogle County known as the Welcome Inn, Inc., a corporation.”

The State then called as its witness, Erwin Hackman, who testified that he was the owner of Hillcrest Welcome Inn, Inc.; that he was an officer of the corporation; that on the alleged date of the offense charged, the corporation was operating a tavern in Hillcrest; and that Charles Cole was at the time employed to manage the tavern. Charles Cole had previously testified for the State that he was the manager of the Welcome Inn in Hillcrest at the time of the alleged offense, and that it was a corporation; and he also testified as to the details of the alleged burglary which took place on the premises which he managed.

It seems clear — by various methods — that the corporate existence was sufficiently established. The defendant also argues, however, that the variance between the corporate name contained in the information and that as shown by the proof is fatal to the State’s case.

A variance itself is not, per se, a fatal defect. However, the information must clearly allege rights of possession and ownership in someone or some entity other than the defendant. People v. Henry, 68 Ill App2d 48, 51, 214 NE2d 550 (1966). The information in this case is, in this respect, sufficient. Moreover, the variance must not result in substantial injury to the defendant, either by causing the jury to be misled or by hindering the defendant in the intelligent presentation of his case. The People v. Thomas, 20 Ill2d 603, 606, 170 NE2d 543 (1960); The People v. Nelson, 17 Ill2d 509, 512, 162 NE2d 390 (1959); The People v. Cunningham, 300 Ill 376, 381, 133 NE 270 (1921).

The facts in this case leave no doubt as to the identity of the corporate owner of the building and the property taken, and there is no showing by the defendant, as there must be, that the variance has in any way harmed him. People v. Nelson, supra; People v. Cunningham, supra. The evidence clearly showed that there was no other tavern in the Village of Hillcrest or anywhere else in Ogle County known as the Welcome Inn.

The variance in this case is similar to that in People v. Van Hyning, 72 Ill App2d 108, 219 NE2d 268 (1966) where the defendant was charged by indictment with entering a building and carrying away property belonging to “Robert G. Carlson American Legion Post 1207, a not-for-profit corporation.” In fact, the proof at the trial showed the correct corporate name to be “Lt. Robert C. A. Carlson Post No. 1207, The American Legion.” This variance was held to be inconsequential, and we hold the same in this case with respect to the variance between the name of the corporation as set forth in the information and the name as proved by the evidence.

The purpose of an indictment or information is to apprise a defendant of the exact crime with which he is charged, so that he may prepare his defense, and may plead the judgment of conviction, or acquittal, in bar of a second prosecution for the same offense. This was accomplished in the case at bar despite the variance complained of. People v. Kurtz, 69 Ill App2d 282, 287, 216 NE2d 524 (1966).

Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

MORAN, P. J. and ABRAHAMSON, J., concur.


text:
    William Mack, Plaintiff-Appellant, v. Kenneth Davis, Defendant-Appellee.
    Gen. No. 65-145.
    Second District.
    November 2, 1966.

      Jurco, Damisch & Sinson, of Chicago (John D. Damisch and James R. Mitchell, of counsel), for appellant.
    O’Brien, Burnell, Puckett & Barnett, of Aurora, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

Leon Mack brought this suit as father and next friend of his son, William Mack, then a minor and now an adult, and herein called plaintiff, to recover for injuries sustained by the latter while driving a tractor for, and owned by, the defendant, Kenneth Davis. The jury returned a verdict for the defendant. The court entered judgment on the verdict and the plaintiff appealed.

The plaintiff was injured on June 27, 1961 and at the time was 17 years of age. He had previously done very little farm work and, for all practical purposes, was completely inexperienced in operating a tractor. He had a driver’s license and was familiar with the operation of an automobile.

The injury occurred the first day the plaintiff worked for the defendant on the latter’s farm. The defendant told the plaintiff to drive the tractor approximately one-half mile down to the field where he would rake hay and gave the plaintiff no instructions or warnings as to the operation of the tractor. The plaintiff started the tractor, drove it to the field, and spent the remainder of the morning pulling a hay rake behind the tractor.

The plaintiff drove the tractor back to the farmhouse at noon and after lunch he drove the tractor back to the field. En route to the field, while driving down a paved highway at about ten to twelve miles an hour and as he approached the gravel driveway which entered the field, he pushed the throttle in, applied the brakes and turned the wheels to the right. He testified that he felt “a slight whipping motion” and had the sensation of falling forward. The next thing the plaintiff remembered was that he was sitting on his leg on the gravel drive — injured.

The tractor was a “tricycle” type, with the two front wheels close together. There was evidence from which the jury could have found that the steering mechanism was loose and that the play in the steering wheel was such that it could be turned almost 90° before the front wheels would respond. The tractor was equipped with individual brake pedals so that the brakes could be applied on one wheel or the other for turning. The brake pedals could also be locked together by a bar so that if either pedal was depressed the brakes theoretically would be applied evenly to both wheels so that they would not cause the tractor to turn.

At the time of the injury, the two brake pedals were securely locked together by the connecting bar. There was evidence from which the jury could have found that the connecting bar was worn; and that the pedal for the left wheel had to be depressed somewhat further than the right one before it would brake the wheel. There was no evidence that the brakes had ever been adjusted.

The plaintiff contends that the trial court erred in certain evidentiary rulings and in the refusing and giving of certain instructions.

As to the evidentiary rulings, the plaintiff contends that the court erred in refusing to permit an answer to a hypothetical question calling for an opinion as to what type of action the tractor would take, under the stated assumed facts relative to the condition of the steering and brakes of the tractor and the driving conditions at the time of the accident. The defendant objected to the question but stated no grounds for the objection. The court sustained the objection and, when counsel asked for the basis for the objection, the court refused plaintiff’s request to have defendant specify his objections.

The plaintiff was entitled, upon request, to have the defendant specify the grounds for the objection to the hypothetical question. We are not certain of the trial court’s basis for excluding the answer, and obviously, neither was the plaintiff. Unless it is apparent that the reason for the exclusion of the evidence cannot be overcome, the grounds should be specified so that the aggrieved party may be given the opportunity to obviate the objection. Wright v. Smith, 82 Ill 527, 528 (1876); People v. Edward Merrill, 76 Ill App2d 82, 221 NE2d 145; Callaghan’s Ill Evid, Vol 6, § 16.07.

If the defendant intended to base his objection on factual elements either improperly included or excluded in the question, it is clear that he waived the error by his failure to specify such elements. Goldberg v. Capitol Freight Lines, 382 111 283, 290, 47 NE2d 67 (1943); Smith v. Illinois Valley Ice Cream Co., 20 Ill App2d 312, 321, 156 NE2d 361 (1959); Placher v. Streepy, 19 Ill App2d 183,190, 153 NE2d 369 (1958).

Further, absent specific objection, we believe that the plaintiff was entitled to the benefit of the witness’ opinion on the question propounded. The plaintiff produced the witness for the purpose of having him reconstruct, in his opinion, the action which the tractor probably took. The plaintiff — the only occurrence witness — was unable to shed much light on what in fact had occurred. The possible effect of the interaction of the particular manner in which this tractor was operated and turned, with the claimed defects in the tractor under the road conditions specified, was difficult of comprehension and explanation. “(T)he trend is to admit expert testimony in matters which are complicated and outside the knowledge or understanding of the average person, and even as to matters of common knowledge and understanding where difficult of comprehension and explanation.” Miller v. Pillsbury Co., 33 Ill2d 514, 516, 517, 211 NE2d 733 (1965). It is still for the jury to accept or reject the opinion testimony.

The defendant claims that the witness was not properly qualified as an expert, and that there was not sufficient physical evidence to provide the basic data necessary for the witness to reconstruct and give an opinion as to what happened. Suffice it to say, his general objection to the question was not sufficient to raise these issues. Such objection raised the question of relevancy and materiality only. Johnson v. Bennett, 395 Ill 389, 398, 69 NE2d 899 (1946). Further, it was not necessary to make an offer of proof as to the witness’ opinion. Unless the trial court requires counsel to make an offer, such offer is not necessary where a question, in proper form, shows the purpose and materiality of the evidence and admits of an answer relative to the issues. The People v. Moretti, 6 Ill2d 494, 520, 521, 129 NE2d 709 (1955); Creighton v. Elgin, 387 Ill 592, 606, 56 NE2d 825 (1944).

The defendant and a neighbor testified as to the results of tests and experiments they made pertaining to the brakes and steering of the tractor. These tests were conducted at the time of the trial — some four years after the incident. It was admitted that the tractor had been continually used during the interim between the incident and trial and that some repair work had been done to “slightly” tighten up the steering. The testimony of the results of the tests was objected to on the grounds that the condition of the tractor at the time of the tests was not the same as at the time of the incident in question. The court overruled the objection and refused to strike any of the testimony.

While such experiments may be competent, it must be shown that the essential conditions are the same as those existing at the time of the incident. Hammer v. Slive, 35 Ill App2d 447, 454, 455,183 NE2d 49 (1962). Here, after four years of use and repair to the steering mechanism, the steering and brakes of the tractor were tested. In view of the record before us, it cannot be said that the essential conditions were the same or sufficiently similar to render the results of the test of probative value.

The defendant argues that the difference in the conditions should go merely to the weight to be given the evidence, and cites The People v. Pfanschmidt, 262 Ill 411, 465, 104 NE 804 (1914); Hauser v. The People, 210 Ill 253, 263, 264, 71 NE 416 (1904); and Downing v. Metropolitan Life Ins. Co., 314 Ill App 222, 226, 227, 41 NE2d 297 (1941). In all of those cases, however, it was found that the essential particulars of the tests were sufficiently similar or identical to those existing at the time in question to render the results of the tests of probative force. Slight discrepancies in the conditions were held to affect the weight of the testimony — not the competency. In the case at bar, the discrepancies are not slight. The repair to the steering alone suggests that the essential conditions are not sufficiently similar to render the tests competent.

The defendant also argues that if the tests are not admissible to indicate the conditions of the tractor existing at the time of the incident in question, they are at least admissible to impeach the plaintiff’s witness who testified as to the disrepair of the tractor. There is no indication, however, that the defendant offered this evidence for this limited purpose or that the jury was directed to or would accept-it for this limited purpose. The testimony of the defendant and neighbor as to the tests performed by them on the tractor at the time of the trial, should not have been admitted.

The plaintiff also contends that the trial court erred in refusing to give his instruction relative to the standard of care required of the plaintiff, as a minor. The standard of care normally required of a minor is not the same as that required of an adult. Where, however, the minor is engaged in certain activities, such as in the operation of a motor vehicle, the law does not permit him to be judged by any standard other than that expected of all others driving such vehicles. Dawson v. Hoffmann, 43 Ill App2d 17, 20, 192 NE2d 695 (1963); Betzold v. Erickson, 35 Ill App2d 203, 209-211,182 NE2d 342 (1962). The rationale of these decisions is that the operation of a motor vehicle on public highways is an activity demanding responsibility in conduct, because of the dangers inherent to oneself and others; and that the law cannot fairly permit a minor to observe a lesser standard of care in operating a motor vehicle on a highway than that required of all other drivers. It would be unfair to the public using the streets to permit a double standard of care to be exercised by drivers, one applicable to adults and one applicable to minors. Conway v. Tamborini, 68 Ill App2d 190, 197, 215 NE2d 303 (1966).

However, the activity here involved is not of the same nature as the driving of automobiles on our public streets. The operation of farm tractors is frequently entrusted to minors. The substantial part of the operation is not on public highways and involves no particular hazard or danger to the public generally. Under the circumstances of this case, the plaintiff was entitled to be judged by the standard of care expected of one of his age, experience and intelligence. He was not required to be judged by the same standard as that expected of an adult. We do not feel that the court erred, however, in the instructions given. While the court did not give the instruction tendered by plaintiff, it did instruct the jury that plaintiff was required to exercise only that degree of care to be expected of one of his age, experience and intelligence. It might have been preferable to preface the instruction — as is customarily done — with the sentence, “A minor is not held to the same standard of conduct as an adult.” However, under the circumstances, we feel that the jury was aware of the purpose of the instruction and was adequately instructed in this regard. Lau v. West Towns Bus Co., 16 Ill2d 442, 452, 158 NE2d 63 (1959).

The plaintiff also contends that the instruction given by the court relative to the assumption of risk was erroneous. An employee, when he engages in employment, assumes “the risks of known dangers, and such as are so obvious that knowledge of their existence is fairly to be presumed.” Chicago & E. I. R. Co. v. Heerey, 203 Ill 492, 497, 68 NE 74 (1903); also see: Stone v. Guthrie, 14 Ill App2d 137, 148, 149, 144 NE2d 165 (1957). However, such ordinary risks do not include the negligence of the employer. Klofski v. Railroad Supply Co., 235 Ill 146, 156, 85 NE 274 (1908); Stone v. Guthrie, supra. The employer must use reasonable care to provide for the safety of his employees. If the employer fails to exercise such care, the risks resulting are said to be extraordinary and are not assumed by the employee unless he knows of the risks and understands them, or ought to know and understand them. Wheeler v. Chicago & W. I. R. Co., 267 Ill 306, 319, 108 NE 330 (1915) ; Olsen v. Pigott, 39 Ill App2d 191,198,188 NE2d 361 (1963).

The employee thus assumes all ordinary risks and all extraordinary ones of which he knows, or ought to know, and the dangers of which he appreciates, or ought to appreciate and of which he makes no complaint. Stone v. Guthrie, 14 Ill App2d 137, 149, 150, 144 NE2d 165 (1957). It is generally stated that an employee voluntarily assumes the risks resulting from the use of defective machinery where the defects are as well known to him as to the employer. Clubb v. Main, 65 Ill App2d 461, 469, 213 NE2d 63 (1965). However, he must appreciate the danger and the risk connected therewith, as well as the defect or condition by which the danger is created. Fox v. Beall, 314 Ill App 144, 147, 41 NE2d 126 (1942). A person of sufficient age and experience is chargeable with knowledge of the ordinary risks and hazards of his employment, and will be presumed to have notice of and to have assumed such risks which, to a person of his age and experience, are, or ought to be, obvious. Chicago & E. I. R Co. v. Heerey, 203 Ill 492, 497, 68 NE 74 (1903).

We cannot agree with the plaintiff that the instruction tendered by defendant was inconsistent with the law outlined above. The instruction in no way presupposed that the furnishing of a defective and dangerous tractor might be an ordinary risk assumed by plaintiff. Rather, the instruction presupposed that the furnishing of a defective tractor was an extraordinary risk requiring knowledge by the plaintiff of both the defective condition and the resulting danger or risk. The jury was adequately instructed in this regard.

We recognize that a record need not be free from error to warrant the affirmation of a judgment, but we believe that the judgment should be reversed where, as in the case at bar, it cannot be determined from a review of the record whether the effect of the combined evidentiary errors complained of misled the jury and affected its verdict. DeMarco v. McGill, 402 Ill 46, 59, 83 NE2d 313 (1949). Therefore, the judgment must be reversed and the case remanded for a new trial consistent with the views expressed herein.

Reversed and remanded.

MORAN, P. J. and ABRAHAMSON, J., concur.


text:
    Bauer Distributing Co., Inc., Plaintiff-Appellant, v. Vesci Falstaff Beer Distributors, Inc., Defendant-Appellee.
    Gen. No. 66-51. (Abstract of Decision.)
    Fifth District.
    November 3, 1966.
    Crain & Hall, of Centralia, for plaintiff-appellant; Fred L. Wham, Jr., of Centralia, for defendant-appellee.
   Opinion by JUSTICE MORAN. Not to be published in full.


author: TRAPP, P. J.

text:
    Mary Gertrude McManus, Plaintiff-Appellant, v. Bernard Feist, Defendant-Appellee.
    Gen. No. 10,722.
    Fourth District.
    November 3, 1966.

      Thomson, Thomson, Mirza & Watson, of Bloomington (Chester Thomson and Loren Thomson, of counsel), for appellant.
    Dunn, Dunn, Goebel, Ulbrich & Hayes, of Bloomington (Frank M. Brady, of counsel), for appellee.
   TRAPP, P. J.

Plaintiff appeals from a judgment in the sum of $750 entered upon the verdict of a jury.

Plaintiff contends that the trial court should have allowed her motion, made at the close of the evidence, to direct a verdict upon the issue of liability, and to consider the question of damages only, and that the trial court erred in failing to allow plaintiff’s post-trial motion and grant a new trial on damages only for the reason that the verdict of the jury was against the manifest weight of the evidence and “could not have included all elements of damage.”

Briefly, plaintiff was riding in the right front seat of an automobile driven by her husband as it proceeded north on U. S. Route 51 at a place south of Bloomington. The car in which the plaintiff was riding had entered a 50-mile speed zone and was being slowed by “touching the brakes” as the driver of a car in front of it was making hand signals for a left turn. Plaintiff’s husband testified that just prior to the collision his automobile was moving slowly, but he could not say that it was stopped. Defendant testified that he saw plaintiff’s automobile and that he slowed his car by reason of having entered a posted speed zone; that he observed the plaintiff’s car slowing down and that he applied his brakes as soon as he saw the brake lights of plaintiff’s car. The only testimony of defendant’s speed is that he was travel-ling 30 to 35 miles an hour as he applied his brakes at a distance of 3 or 4 car lengths behind plaintiff’s car. Plaintiff’s husband testified to observing some tire skid marks, but these were not connected with defendant’s automobile. Jackson v. Gordon, 37 Ill App2d 41, 184 NE 2d 805.

An immediate proposition submitted by the plaintiff is that the trial court erred in denying plaintiff’s motion at the close of all the evidence to direct a verdict upon the issue of liability, it being argued that there is no evidence of plaintiff’s contributory negligence and that the defendant was, therefore, liable as a matter of law. Plaintiff submits that such should have been done under the authority of Smith v. Bishop, 32 Ill2d 380, 205 NE2d 461. We understand that such opinion holds that it was proper, under the facts in that case, to direct a verdict upon the issue of contributory negligence on the part of the plaintiff, but that it does not hold that a verdict upon liability should be directed. See Morelia v. Melrose Park Cab Co., 65 Ill App2d 175, 212 NE2d 106; Pertolanitz v. Chicago Transit Authority, 44 Ill App2d 256, 194 NE2d 501.

On a motion to direct a verdict the court considers the evidence and its reasonable inferences in the light most favorable to the party against whom the motion is directed, and may not consider conflicts in the evidence, its weight, or the credibility of the witnesses. Battershell v. Bowman Dairy Co., 37 Ill App2d 193, 185 NE2d 340; Freeman v. Chicago Transit Authority, 50 Ill App2d 125, 200 NE2d 128. In order that a verdict upon liability may be directed the facts must be susceptible to but one interpretation and it is improper to direct a verdict where there is a conflict in the evidence. Freeman v. Chicago Transit Authority. In that case the defendant also testified to a sudden stop made by plaintiff’s vehicle. As here, the defendant testified to applying his brakes immediately upon seeing the brakes’ lights on plaintiff’s car. Upon this issue of liability, the jury and not the court weighs the contradictory evidence and the inferences therefrom, judges the credibility of the witnesses and draws the ultimate conclusions of fact. Paul Harris Furniture Co. v. Morse, 10 Ill2d 28, 139 NE 2d 275. The trial court’s ruling upon the motion was proper.

Plaintiff contends that the damages under the verdict are so inadequate as to indicate that the jury made a compromise of damages against liability, or that it, the jury, overlooked elements of damages, and the trial court erred in refusing to grant plaintiff’s post-trial motion and give a new trial on damages only.

Where it is concluded that the verdict was a compromise of damages with liability, the trial court is not authorized to grant a new trial upon damages only. Paul Harris Furniture Co. v. Morse, 10 Ill2d 28, 139 NE 2d 275; King v. City of Chicago, 53 Ill App2d 484, 202 NE2d 839.

Upon the issue of the adequacy of the damages, the evidence is that the plaintiff sustained soft tissue injuries which, in its manifestations at the time of the trial limited the rotation of the head upon the neck and limited or inhibited the tilting of plaintiff’s head toward the right. This condition, under the evidence, had persisted from the time of the collision in August, 1962, to the time of the trial. An orthopedic specialist testified that, currently with the trial, there was marked muscle spasms of the left cervical and trapezius muscles with limitation of the rotation of the right arm in several aspects. It was the doctor’s opinion that the injuries were permanent. At the time of the injury plaintiff was 67 years of age. The treatment prescribed consisted of muscle relaxants with rest. Since the time of the injury plaintiff has done very little housework and is described as suffering discomfort while riding in an automobile. The evidence as to the amount of expense incident to care and treatment for the injuries sustained shows that the sum of $208 was expended.

Plaintiff contends that certain authorities require the conclusion that this verdict reflects a compromise by the jury as between liability and damages. In Kinsell v. Hawthorne, 27 Ill App2d 314, 169 NE2d 678, and Pertolanitz v. Chicago Transit Authority, 44 Ill App 256, 194 NE 501, counsel conceded that the verdict represented a compromise by the jury as between liability and damages. These cited authorities are not applicable to this case.

In another series of opinions, Luner v. Gelles, 314 Ill App 659, 42 NE2d 313, and Browder v. Beckman, 275 Ill App 193, the amounts of the respective verdicts were simply equal to the amounts of the special damages and out-of-pocket expense, while in Stroyeck v. A. E. Staley Mfg. Co., 26 Ill App2d 76, 167 NE2d 689, the verdict for $100 was less than one-third of plaintiff’s out-of-pocket expense. These verdicts were reversed upon the hypothesis that they demonstrated that the jury had compromised upon the issues of liability and damages. We do not believe that this case comes within the theories expressed in these cases.

While it appears here that the jury might very well have awarded a larger verdict under the evidence in this case, nevertheless, this verdict was greater than the out-of-pocket expense, so that we must conclude that it comes within the orbit of those authorities which hold that fixing damages is the province of the jury. Ward v. Chicago Transit Authority, 52 Ill App2d 172, 201 NE2d 750. There the verdict was for $1,000 with special damages established in the sum of $457, together with evidence that plaintiff had lost his prior employment. That judgment was affirmed, there being no evidence of passion or prejudice on the part of the jury. See also Giddings v. Wyman, 32 Ill App2d 220, 177 NE2d 641, where the facts of the collision, the injuries sustained and the verdict awarded were quite similar to this case and judgment was sustained upon appeal. Plaintiff cites Freeman v. Chicago Transit Authority, 50 Ill App2d 125, 200 NE2d 128, but that opinion expressly points out that a new trial was awarded not because the verdict was in an inadequate amount, but because the jury finding upon a special interrogatory was inconsistent with the general verdict.

Plaintiff further urges that the amount of the verdict demonstrates that the jury failed to consider the proper elements of the damages suffered by the plaintiff, pointing out that the verdict seemed inadequate as to the factors of pain and suffering testified to by the plaintiff, arid to the fact that she was deprived of the pursuit of her hobbies. Plaintiff’s instruction upon the element of damages hereinafter discussed would seem to include these elements and, again, there is nothing to establish passion or prejudice on the part of the jury. See Giddings v. Wyman and Ward v. Chicago Transit Authority.

It is particularly urged that the jury overlooked the evidence that since her injuries, plaintiff had been able to do very little housework. Jerrell v. Harrisburg Fair & Park Ass’n, 215 Ill App 273, is relied upon for the conclusion that an amount should be awarded for such element. In that opinion there was an award to plaintiff. While the opinion is not sharply focussed upon the issue, it was argued upon defendant’s appeal that a married woman does not suffer financial loss because of inability to do her housework, it apparently being the contention that such would be the loss of plaintiff’s husband. The court’s holding that such contention was not the law does not control the question presented here.

We have examined the evidence and plaintiff’s instruction upon the elements of damages with regard to this issue. The instruction contained the usual language.as to fixing the amount of money reasonably and fairly compensating the plaintiff for several elements of damage, including the nature, extent and duration of the injury and the disability resulting therefrom; the pain and suffering experienced and reasonably to be expected in the future; the. aggravation of any preexisting element or condition, and concludes:

“The reasonable expense of necessary medical care, treatment and services received.
“Whether any of these elements of damages has been proven by the evidence is for you to determine. Your verdict must be based upon evidence and not upon speculation, guess or conjecture.”

Plaintiff’s instruction did not expressly include inability to do housework as an element, although it would appear to be a reasonable expense of “services received.” There is, however, nothing in the evidence relating to sums expended for housework necessarily performed for plaintiff, or which might necessarily be expected to be incurred. Again, there is nothing in the evidence to give any indication of the value of such services, past, present or future, in any of the several places where plaintiff had stayed or resided since the injury occurred. Upon this record, such element of damage could only be determined by indulging in speculation and conjecture. We conclude that the authorities relied upon by plaintiff as to the jury misunderstanding the elements of damage are not helpful in this case. In Mineiko v. Rizzuto, 65 Ill App2d 35, 212 NE2d 712, it appears that the jury misunderstood the evidence relating to plaintiff’s loss of wages, while in Haizen v. Yellow Cab Co., 41 Ill App2d 330,190 NE2d 514, it appeared that the jury ignored the evidence or failed to follow the court’s instructions as to damages where the evidence showed that the plaintiff lost his employment. See also Paul Harris Furniture Co. v. Morse, 10 Ill2d 28, 139 NE2d 275.

We are, therefore, unable to conclude that damages clearly proven were overlooked within the rule cited in Giddings v. Wyman, 32 Ill App2d 220, 177 NE2d 641, and Kimmel v. Hefner, 36 Ill App2d 137, 183 NE2d 13.

It is urged that the trial court erred in refusing to give plaintiff’s tendered instruction No. 6. It advised the jury that the issue of contributory negligence did not apply to the plaintiff. It is to be noted that the trial court likewise refused to give defendant’s tendered instruction No. 8 defining contributory negligence, and refused to submit defendant’s special interrogatory relating to the negligence of the plaintiff.

Plaintiff’s refused instruction is relevant to the issue of defendant’s liability, and we find it stated that the plaintiff’s rights are not prejudiced by the giving or refusing of instructions where the verdict of the jury found the defendant liable. Burger v. Van Severen, 39 Ill App2d 205, 188 NE2d 373. It is the accepted rule that the refusal of an instruction is not reversible error where no prejudice is shown. Kortlander v. Chicago Transit Authority, 56 Ill App2d 48, 205 NE2d 516; Campbell v. Ragel, 7 Ill App2d 301, 129 NE2d 451.

Plaintiff relies upon Freeman v. Chicago Transit Authority, 50 Ill App2d 125, 200 NE2d 128, as requiring reversal of this case for refusal of such an instruction. There the trial court instructed the jury upon the issue of contributory negligence of the plaintiff husband who was driving, and the plaintiff wife who was a passenger. Under the facts and evidence, the court concluded that the instruction was properly given as to the husband but should not have been given as to the wife. The opinion, however, reverses and remands solely upon the conflict between the jury’s finding under a special interrogatory and its general verdict, and hence, that opinion is not authority upon the issue here.

Defendant was called as a witness under section 60 of the Civil Practice Act and during said examination testified that he had pleaded guilty to a charge of failure to reduce speed. Upon defendant’s case in chief, he was asked by counsel to explain his plea of guilty, or why such plea had been made, and defendant stated that he had been told by the “judge” to plead guilty as he had no witnesses. Plaintiff urges that such testimony was hearsay and requires the reversal of this case.

The giving of an explanation as to a plea of guilty is authorized in Galvan v. Torres, 8 Ill App2d 227, 131 NE2d 367, where it is said:

“. . . The defendant did not seek to explain his plea of guilty, (to assault and battery) nor was he asked by his counsel why he pleaded guilty. Such evidence would have been admissible.”

Here, the issue is not the truth of the matter stated by the “judge” to the defendant and it does disclose an explanation for defendant’s act at the time the plea of guilty was made.

We believe that this evidence is not hearsay, but comes within the rule that an out-of-court statement is not subject to the exclusionary effect of the hearsay rule if it is offered simply to prove that the statement was made and not to prove the truth of the matter stated. Gard, Illinois Evidence Manual, p 169, Rule 147. As is stated in Illinois Law and Practice, Vol 18, p 248, chap 7, § 111:

“On the other hand, a witness may sometimes be permitted to relate the statement of another, not to establish the fact contained in the statement, but only to show the reason for the conduct of the witness in reliance on the statement.”

See also Cleary, Handbook of Illinois Evidence (1963) § 17.4 and Benedict v. Dakin, 243 Ill 384, 90 NE 712.

Plaintiff urges that the judgment should be reversed because defendant’s counsel directed his argument to the proximate cause of the collision as being the driving of plaintiff’s husband. Upon plaintiff’s objection to this argument, the trial court stated that there should be no imputation of plaintiff’s husband’s negligence to the plaintiff, but that defendant could argue as to his want of negligence and to the absence of the element of proximate cause under the issues. We do not believe that the fact that plaintiff might not be properly charged with contributory negligence means tha/t proximate cause ceases to be an element necessarily proven in plaintiff’s case. As we have heretofore noted, there appears to be a conflict in the evidence as to require the submission of the cause to the jury.

The trial court denied a motion for a new trial. Such is a matter of sound discretion of the trial judge who has the benefit of observing the witnesses and the manner in which they testify. Morelia v. Melrose Park Cab Co., 65 Ill App2d 175, 212 NE2d 106. It is the established practice that a jury’s verdict will be set aside only where this court is clearly satisfied that such verdict was caused by passion or prejudice, or wholly unwarranted from the manifest weight of the evidence. Kahn v. James Burton Co., 5 Ill2d 614, 126 NE2d 836; Jackson v. Gordon, 37 Ill App2d 41, 184 NE2d 805.

The judgment of the trial court is affirmed.

SMITH and CRAVEN, JJ., concur.


author: MORAN, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Joseph Wethington, Defendant-Appellant.
    Gen. No. 10,745.
    Fourth District.
    November 3, 1966.

      Thomas F. Londrigan, of Springfield, and Kenneth R. Boyle, of Carlinville, for appellant.
    John E. Grosboll, State’s Attorney, of Petersburg, for appellee.
   MORAN, J.

This is an appeal by Joseph Wethington from a judgment sentencing him to ninety days at the State Penal Farm at Vandalia.

On November 8, 1965, the defendant pleaded guilty to a charge of Contributing to the Delinquency of a Minor, under Ill Rev Stats 1959, chapter 23, section 2011. After a favorable presentence report, the State’s Attorney recommended a three-year period of probation. The court, after deciding that section 2011 authorized probation for no more than one year, entered an order granting probation for one year; but, as a condition of probation, sentenced him to ninety days at the State Penal Farm at Vandalia.

The defendant contends that the court lacked jurisdiction to condition its grant of probation by a jail sentence, since section 2011 did not authorize such a penalty, while the State contends that the sentence was proper because the Code of Criminal Procedure, Ill Rev Stats, chapter 38, sections 100 through 126, approved August 14, 1963, effective January 1, 1964, including the probation conditions set forth in section 117-2, applies to all Illinois penal statutes.

Ill Rev Stats, chapter 38, section 100-2, defines the scope of the Code of Criminal Procedure. “These provisions shall govern the procedure ... in all criminal proceedings except where provision for a, different procedure is specifically provided by law.” (Emphasis supplied.) Thus, the probation conditions of section 117-2 shall govern unless specific provisions are applicable. Ill Rev Stats, chapter 23, section 2011, provides that, when convicted of the crime of Contribution to the Delinquency of a Minor, a person:

“. . . shall be fined not more than $1,000, or imprisoned for not more than 1 year, or fined and imprisoned in the discretion of the court; provided, that instead of imposing the punishment hereinbefore provided, the court shall have the power to release the defendant from custody on probation for one year upon his or her entering into recognizance. . ."

This section continues by listing the conditions of the recognizance and the penalties for violation of any of the terms of the probation.

The legislature has specifically provided a different procedure for a person convicted of the crime of Contributing to the Delinquency of a Minor. Hence, the probation conditions enumerated in section 117-2 are not applicable. The trial court must have recognized this by its refusal to grant a period of probation longer than one year, when section 117-2 provides for periods of probation exceeding one year. Under section 2011, it seems clear that the court was not authorized to condition its grant of probation by a jail sentence; for the legislature used the words “instead of imposing the punishment hereinbefore provided, the court shall have the power to release the defendant from custody on probation for one year.”

The defendant also contends that the court erred in refusing to allow the defendant to withdraw his plea of guilty and enter a plea of not guilty, since new evidence constituting a defense had been discovered.

Whether a defendant should be allowed to withdraw a plea of guilty rests in the sound discretion of the trial court. People v. Johnson, 345 Ill 352,178 NE 59; People v. Chandler, 361 Ill 511, 198 NE 215; People v. Ross, 409 111 599, 100 NE2d 923. “(W)hen a plea of guilty is fairly and understandingly made, it admits every material fact alleged in the indictment and all elements of the crime with which the accused is legally charged, and obviates the necessity of any proof whatsoever.” People v. Baxton, 10 Ill2d 295, 139 NE2d 754, at 299.

Here, the newly discovered evidence was within the knowledge of the defendant at all times and readily available to his counsel at all times. In addition, the motion to withdraw the plea of guilty was made only after the trial court had entered judgment. In view of these facts, we do not find that the trial court abused its discretion in refusing to allow the defendant to change his plea.

For the foregoing reasons, that portion of the judgment of the Circuit Court of Menard County, finding the defendant guilty on his plea of guilty, and refusing to permit the withdrawal of said plea of guilty is affirmed; that portion of the judgment which provides for a ninety-day period of incarceration during the probation period is reversed. This cause is remanded to the Circuit Court of Menard County for action not inconsistent with this opinion.

Affirmed in part, reversed in part, and remanded.

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


author: CRAVEN, J.

text:
    In the Matter of the Estate of Harry H. Schwarz, Deceased. Central National Bank of Mattoon, as Administrator of the Estate of Harry H. Schwarz, Deceased, Petitioner-Appellee, v. Jessie M. Schwarz, Schilling Funeral Home, W. K. Kidwell, et al., Claimants, Jessie M. Schwarz, Claimant-Appellant.
    Gen. No. 10,765.
    Fourth District.
    November 3, 1966.

      Lemna & Lee, of Tuscola, for appellant.

      Craig & Craig, of Mattoon (Craig Van Meter, of counsel), for appellee.
   CRAVEN, J.

Jessie M. Schwarz appeals from a determination that she must participate in the assets of her deceased former husband’s insolvent estate pro rata with other seventh-class claimants to satisfy her claim for the balance due her for $45,000 alimony in gross under a decree of divorce as modified by the Supreme Court of Illinois and by contract with the decedent dated June 20,1963.

Claimant contends that this determination of the trial court was error. First, she contends that an award of alimony in gross creates a vested right which entitled her to payment ahead of general creditors, and second that she and her late husband entered into an agreement which created an equitable lien upon his entire property which is enforceable against his heirs, personal representatives and creditors who had notice thereof.

The factual matters giving rise to this appeal are not in dispute, only their consequences. Jessie M. Schwarz and the decedent were married in 1926. Their marriage was terminated on November 8, 1961, by decree of the circuit court of Coles County, which provided in part that in addition to specific property to be conveyed to her, she was to receive as alimony and support the sum of $130,310 payable over a nine-year period of time in monthly installments of $1,206.50. Her late husband appealed the terms of this decree as it purported to impose a lien against his personal property for the unpaid balance from time to time remaining. The Supreme Court of Illinois (27 Ill2d 140, 188 NE2d 673 (1963)) held that the sum provided was alimony in gross but the decree was improper insofar as payments owed in the future could constitute a lien on his personal property.

Subsequent to this decision, negotiations occurred which culminated in a contract dated June 20, 1963, between claimant and the decedent. This contract was filed of record in the divorce proceedings. By its terms she accepted the sum of $90,000 as a full and complete substitute for the payments provided by the divorce decree, to be paid $30,000 down and the remaining $60,000 in equal installments of $500 per month beginning July 1, 1963, “with the express provision that said payments shall be accelerated at anytime so that the entire sum of $60,000 shall be paid within Nine (9) years from the date of December 1,1961.”

Additional pertinent parts of this contract were:

“5. This Agreement shall not be considered as in manner [sic] modifying the Decree of Divorce, but the acceptance of a lesser sum by said JESSIE M. SCHWARZ is regarded by the parties herein as a compromise with regard to the payment of alimony and support, and in all other respects the said Divorce Decree, as modified by the Illinois Supreme Court, shall be regarded as binding upon these parties.
“6. The obligation to pay as set forth herein shall be regarded as a lien upon any and all property chattels and estate of said HARRY H. SCHWARZ and in the event that said HARRY H. SCHWARZ should default in payment, then the said JESSIE M. SCHWARZ may declare this contract as breached and forfeited, and she may then revert back to the provisions of the Divorce Decree as modified by the Illinois Supreme Court, and proceed fully under the provisions of said Decree, or any other rights which she might have acquired by reason of said Decree or this Agreement.”

Harry H. Schwarz died intestate in Coles County and the Central National Bank of Mattoon was appointed administrator of his estate. The present claim of $45,000 is the balance due after deduction of the payments made between June 20, 1963, and the date of death. Under court order, the administrator liquidated the assets of decedent’s business and is holding the proceeds pending a determination of this appeal. The assets of the estate are insufficient to pay all claims against the decedent in full.

The administrator asserts that the decision of the trial court below was correct and should be affirmed because (a) the unpaid installments of the alimony in gross award are not a preferred claim against the estate but a seventh-class claim, and (b) the contract does not succeed in creating an equitable lien in spite of the intention of the parties to do so because (1) the language used to describe the property to which the lien is to attach is uncertain and indefinite in its description and (2) the lien claimant failed to prove that the property sold by the administrator was not after-acquired property of the decedent.

The administrator’s position is well taken. The vesting of a right to alimony in gross means only that the right to receive payment in the ordinary course of administration of decedent’s estate is protected as a seventh-class claim. Ordinary alimony is not awarded in a sum certain but on a continuing basis into the uncertain future. The obligation to pay ceases upon death or remarriage of the recipient, or death of the payor. Section 18 of an Act to revise the law in relation to divorce (approved March 10, 1874) as amended (Ill Rev Stats 1965, c 40, para 19).

Alimony in gross is certain in amount and in time of payment and is awarded in lieu of an uncertain, continuing obligation to provide support for the former spouse. Walters v. Walters, 409 Ill 298, 99 NE2d 342 (1951). In this sense only is alimony in gross a vested interest. Death of the person obligated to pay does not extinguish the obligation to pay any unpaid installments not then due. Kohler v. Kohler, 31 Ill App2d 151, 175 NE2d 603 (1st Dist 1961). ILP, Divorce, §149. The claim for such unpaid alimony in gross is a charge against the obligor’s estate but has no standing as a preferred claim over other obligations of the decedent. As such, we can only conclude that such a claim is a seventh-class claim when presented in the course of administration of the estate of the obligor.

The Supreme Court held, in the proceedings involving this claimant and the decedent, that the award of alimony in gross per se did not create a lien on the decedent’s personal property. That court also decided that the trial court could not, by specific decree, create a lien on personal property to secure its payment.

Recognizing that her former husband had no real estate holdings, and realizing that his ability to pay the sums she agreed to accept by contract in lieu of the court award depended upon his business which employed personal property for the production of income, claimant tried to acquire by contract what she could not obtain by court decree — a lien on her husband’s personal property. Had the contract employed the requisite language to comply with the formal requirements for such a lien, we would be faced with the question of the enforceability of this contractual lien under circumstances where a court decree could not confer such a right. We are not required to decide this question, however, since the language employed in this contract is not sufficient to create the lien.

An equitable lien must operate on specific property. The words used to describe the property subject to the lien, “any and all property, chattels and estate,” are void for uncertainty. They describe no particular property, and apply indiscriminately and with equal appropriateness to every species of property of the decedent. See Borden v. Croak, 131 Ill 68, 22 NE 793 (1889); Chicago Title & Trust Co. v. Fine Arts Bldg., 288 Ill 142,123 NE 300 (1919).

The purported lien created would not attach to decedent’s after-acquired property in the absence of specific language giving notice to potential suppliers of chattels of the possibility of such lien. The burden of proving that the proceeds to be used to satisfy the lien did not result from the sale of such after-acquired property was upon the claimant. Borden v. Croak, 131 Ill 68, 22 NE 793 (1889).

This record is devoid of evidence tending to show the dates of acquisition by decedent of property sold by the administrator in relation to June 20, 1963, when the contract was signed. The business carried on by decedent appeared to be in the nature of a wholesale auto supply company which, by its very nature, gives rise to an inference that a share of the goods in possession of decedent’s business at the date of his death was purchased and acquired in his ordinary course of business after he signed the contract with the claimant.

For the above and foregoing reasons, the judgment of the circuit court of Coles County, Illinois, is affirmed.

Affirmed.

TRAPP, P. J. and SMITH, J., concur.


text:
    Allen R. Parsons, Plaintiff, v. Kuhne-Simmons Co., Inc., a Corporation, and The John Doe Corporation, a Corporation, Defendants. Kuhne-Simmons Co., Inc., a Corporation, Third Party Plaintiff-Appellant, v. Art-O-Lite Co., Inc., a Corporation, Third Party Defendant-Appellee.
    Gen. No. 10,788.
    Fourth District.
    November 3, 1966.
    McConnell, Kennedy, McConnell & Morris, of Peoria (Joseph A. Leimkuehler, of counsel), for appellant.
    Greanias & Owen, of Decatur, for appellee.
   CRAVEN, J.

Allen R. Parsons filed an action against Kuhne-Simmons Co., Inc., and another corporation, alleging that he received injuries by reason of an alleged violation of the Illinois Structural Work Act. Kuhne-Simmons filed an answer to the original complaint and a third-party complaint against Art-O-Lite Co., Inc., asserting a right of indemnity. The original third-party complaint and a subsequent amended third-party complaint were both dismissed on motion of the third-party defendant. KuhneSimmons, as third-party plaintiff, elected to stand on the complaint as amended and judgment, final in form, was entered in favor of the third-party defendant. The judgment order contained the finding required by section 50 (2) of the Civil Practice Act (Ill Rev Stats 1965, c 110, para 50 (2)). This appeal is from that judgment.

The issue presented by this case is whether the amended complaint alleges facts sufficient to state a cause of action for indemnity from potential Scaffold Act liability claimed to exist because of the injuries allegedly received by the original plaintiff, Allen R. Parsons.

Parsons’ complaint is, by reference, incorporated into the third-party complaint but was not abstracted in this court. The third-party complaint recited the fact of the original proceeding, the allegation there that the third-party plaintiff wilfully violated certain provisions of the Structural Work Act; that by reason of those allegations the third-party plaintiff has become exposed to liability and has or will be exposed to the costs and attorneys’ fees; that the liability of the third-party plaintiff, if any, is based upon passive negligence or misconduct, whereas, that of the third-party defendant, Art-O-Lite, is alleged to be active, primary and moving. There is also an allegation that the third-party defendant implicitly agreed to perform work in a careful and prudent manner so as not to injure anyone or expose any person, such as the third-party plaintiff, to liability.

No other factual allegations are to be found in the complaint.

Both parties to this appeal agree upon the basic rules governing the right to indemnity in cases such as this. A right to indemnity, absent an express contractual undertaking, may be implied from the terms of the contract governing job responsibility or from the relationship of the parties to the particular work being done at the time injuries were received. Moroni v. Intrusion-Prepakt, Inc., 24 Ill App2d 534, 165 NE2d 346 (1st Dist 1960); Gannon v. Chicago, M., St. P. & P. Ry., 22 Ill2d 305, 175 NE2d 785 (1961); Shell Oil Co. v. Hercules Const. Co., 74 Ill App2d 166, 219 NE2d 392 (5th Dist 1966).

The foregoing cases establish, under certain circumstances, the right to indemnity either by reason of contract or by reason of common-law indemnity principles. The right to indemnity is not here involved, however, but rather the question is whether the allegations of fact in the pleading attacked establish any factual basis for indemnity, either contractual or common law.

Examination of the amended complaint discloses that legal conclusions, not facts, have been pleaded. The amended complaint is replete with conclusion-like statements of established legal principles and devoid of a description of the salient facts upon which such legal principles might operate. The factual basis for the existence of a duty on the part of Art-O-Lite to indemnify the third-party plaintiff in the event of its liability to Parsons is not to be found in the third-party complaint.

In Krambeer v. Canning, 36 Ill App2d 428, 184 NE2d 747 (1st Dist 1962), the court considered the sufficiency of a complaint to state a cause of action for indemnity based on the distinction between active and passive, or technical negligence. The complaint as summarized in the opinion apparently contained allegations more extensive than those here to be found. The allegations in the Krambeer case were sufficient, factually, to establish the existence of a duty on the part of the third-party defendant to the third-party plaintiff.

We are aware that we must give the complaint a liberal construction. We are disposed to reach the substantive merits of litigation rather than procedural technicalities. Fatal deficiencies, however, cannot be supplied by liberal construction. We can only conclude that the absence of a factual basis in the complaint for the requested relief must be taken as and for the fact that no such basis, in fact, exists. If so, it would have been alleged.

The circuit court of Champaign County correctly entered judgment for the third-party defendant and that judgment is affirmed.

Affirmed.

TRAPP, P. J. and SMITH, J., concur.


author: SMITH, J.

text:
    Edward O. Lehman and Helen R. Lehman, Plaintiff-Appellees, v. Raymond R. Arnold and Doris J. Arnold, Defendant-Appellants.
    Gen. No. 10,785.
    Fourth District.
    November 3, 1966.
    Rehearing denied November 29, 1966.

      W. R. Stewart, of Champaign, for appellants.
    Sidney H. Dilks, and Pacey & Pacey, of Paxton, for appellees.
   SMITH, J.

This is an attempt by the defendant-appellants to recover from the plaintiff-appellees a part of the attorney fees fixed and allowed by the court in a judgment by confession against them. The warrant of attorney authorized the entry of judgment at any time after the date of the note for principal, interest, and reasonable attorney fees. Pursuant to this authority, judgment was entered on August 23, 1965, for $11,518.23 principal, $20.82 interest, and $1,178.91 attorney fees totaling $12,717.96.

On September 21, 1965, defendants filed their motion to vacate and open up the judgment for the reason that it was taken before due date. This motion was never called up for hearing. On March 24, 1966, the judgment was paid in full and released of record. On March 28,1966, the defendants filed a petition to fix attorney fees. Plaintiffs’ attorneys answered denying that the fees originally fixed and allowed by the trial court were unreasonable or excessive, stated they were unwilling to accept less than the full amount allowed and admitted they had received $200 on account and $23 for costs advanced. The trial court treated the petition as one to open up the judgment and denied it. The defendants assert that their petition is based on CPA 72, Ill Rev Stats 1965, ch 110, § 72(1), and state that plaintiffs’ attorneys were employed for the limited purpose of taking a security judgment only and had the trial court known this, the fees would have been substantially less. We are at once confronted with procedural problems and whether or not CPA 72 is appropriate or proper.

We must first pause to consider what is properly before us. With this case we took a motion by the defendants to amend the record on appeal to include a further affidavit by one of the defendants and two letters. The hearing on the petition to fix fees was held on April 6. On April 7, plaintiffs’ attorneys directed a letter to their own clients demanding the balance of their attorney fees. In a letter dated April 8, other attorneys for the plaintiffs suggested to the attorneys of the record that there be a diminution of fees as the original employment was for the limited purpose of a security judgment only. Defendants’ additional affidavit incorporates these letters as a part thereof and certifies that they were mailed to Judge Simpkins some time during the week of April 11 with copies to opposing counsel. This was after the hearing on the motion and after the case was under advisement. This is a strange manner in which to make or preserve a record. In our judgment, these documents never did become a part of the trial court record, were not specifically mentioned in the praecipe for record and for aught that we know were never considered by the trial court. Since these documents never did become a part of the trial court record, the motion to amend the record in this court must be denied. We do not review matters which were neither filed in nor properly considered by the trial court.

CPA amalgamates into one petition the various types of relief available at common law under numerous writs and abolishes the distinction between suits at law and suits in equity. Since Ellman v. De Ruiter, 412 Ill 285, 106 NE2d 350, equitable principles have been applied to both the procedural and substantive aspects of the petition. Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348. It preserves the power of a court over its own judgment when the exercise of such power is necessary to prevent injustice. It is not, however, a blanket authority. In Stewart v. Monroe, 62 Ill App2d 414, 420, 211 NE2d 144,147, it is said:

“In 23ILP, Judgments § 165, it is said:
“ ‘Although it is the policy of the law to give the parties to an action every reasonable opportunity to present their cause of action or defense, a judgment imports solemnity and stability, and hence will not be lightly disturbed, and will be opened or set aside only for good cause. An order of vacation must have some basis for its entry.’ ”
“In Guth v. People, 402 Ill 286, 83 NE2d 590, the court held that the provisions of a writ of error coram nobis is limited and that it is not designed for the purpose of providing a means for general review of matters occurring in the trial court. Its purpose is to obtain relief from errors of fact of such character as would have prevented the entry of judgment. In Williams v. Pearson, 23 Ill2d 357,177 NE2d 856, it is stated that the purpose of the petition is not to relieve a party from the consequence of his own mistake or negligence; and in City of Chicago v. Roth, 322 Ill App 696, 54 NE2d 657, it is held that such a petition may not be used as a substitute for an appeal.”

It is urged that the trial court would not have fixed the fees as he did had he known of the limited authority of plaintiffs’ attorneys. This issue is not before us. The motion to vacate the judgment filed within 30 days did not mention it. The petition under CPA 72 does not mention it. It is clear from this record that the trial court followed the guidelines long established by the courts of this State for judgments by confession. The fees conform to the schedule of fees adopted by the Ford County Bar Association. Surely the term “reasonable fees” means the fees usually charged for like or similar services by lawyers in the area. Nothing in this record contravenes or disputes this principle. The record is silent as to what evidence the trial court heard, in fixing the fees or what it knew or did not know about the extent of the employment. There is nothing in the record suggesting that the fees would have been less had the limited authority been known to the court nor that such was the established practice in Ford County. We cannot operate in a vacuum.

We would further note that the amount of the fees was known to the defendants when they filed their motion to vacate and for leave to plead. The attorney fees were not mentioned. The petition under CPA 72 mentions no fact which if known to the court would have precluded entry of the judgment. The issue now argued is notable for its absence from the pleadings. “A petition under section 72 of the Civil Practice Act is therefore the filing of a new action; and it is necessary, as in any civil case, that the petitioner allege and prove a right to the relief sought. . . .” Brockmeyer v. Duncan, 18 Ill2d 502, 505, 165 NE2d 294. There is neither proof nor allegations to support the position now taken by the petitioners. There is no showing of fraud or persuasive equitable reasons which misled or misguided the trial court in fixing fees originally nor were the defendants deprived of any defense through any action on the part of plaintiffs or their attorneys. CPA 72 is not available to raise the issue now argued. In our judgment, the issue might properly have been presented in the original motion to vacate filed within 30 days had it been timely presented or raised.

Accordingly, the judgment must be and it is affirmed.

Affirmed.

TRAPP, P. J. and CRAVEN, J., concur.


text:
    Farmers Pellet Co., a Corporation, Plaintiff-Appellee, v. Norman Hulcher, Defendant-Appellant.
    Gen. No. 66-3. (Abstract of Decision.)
    Fifth District.
    November 3, 1966.
    Rehearing denied December 3, 1966.
    Jasper S. Gullo, of Springfield, for appellant; Duane L. Traynor, of Springfield, for appellee.
   Opinion by JUSTICE MORAN. Not to be published in full.