author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Davis, Defendant-Appellant.
    Gen. No. 50,931.
    First District, Second Division.
    March 29, 1966.

      James S. Wirt, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendant was found guilty at a bench trial of theft of an automobile and was sentenced to 5 to 10 years in the penitentiary. He appeals.

Shortly after midnight on July 21,1963, Police Officers Behnke and Zientek were cruising in a squad car in a southerly direction on South Paulina Street in Chicago. Officer Behnke testified that as the squad car approached the intersection at Monroe Street he observed a 1963 Pontiac speed eastbound out of an east-west alley at approximately 116 South Paulina Street, then turn right and travel south on Paulina Street for a distance of about 110 feet. The Pontiac then turned west into another east-west alley at approximately 126 South Paulina Street. Officer Behnke stated that the police officers immediately gave chase upon seeing the Pontiac drive out of the first alley, and that during the chase they were never further nor closer than 100 feet from the automobile. The Pontiac was observed by Officer Behnke for the entire period of the pursuit, except for “a couple of seconds” or “a few seconds” after it turned into the second alley. The only occupant of the automobile was the driver.

The second alley is bounded on the south side by a factory building and on the north side by an apartment building, which is commonly known as 124 South Paulina Street. The apartment building is immediately adjacent to the alley and to the sidewalk of Paulina Street.

The squad car was driven into the alley and was stopped behind the Pontiac which was some 30 feet into the alley. The Pontiac was driverless, in neutral gear and rolling, and the motor was still running. As the squad car entered the alley, Officer Behnke observed the defendant “along side” or “a couple of feet” in back of the Pontiac and “walking fast” toward Paulina Street down the center of the alley. No person was observed in the alley other than the defendant.

Defendant was confronted by Officer Behnke on the sidewalk in front of the apartment building and was taken back to the Pontiac and questioned. He was asked for his driver’s license but stated that he could not drive an automobile and had no driver’s license. Defendant denied having had anything to do with the automobile. Officer Behnke testified that defendant told him that a man named “Slick” had driven the automobile into the alley and had jumped from the automobile and ran into a gangway.

After the questioning, police headquarters was contacted and it was determined that the Pontiac was reported stolen the afternoon of July 20th. Defendant was searched and his wallet, containing a parole card and an identification card, was taken from him. A short while later another squad car arrived at the scene. Defendant was then told to drive the Pontiac to the police station but refused, stating that he did not know how to drive.

Officer Behnke and another police officer, who had later arrived at the scene, drove the defendant to the police station. Upon arriving at the station defendant was ordered to follow the officers into the station, and when they reached a garage at the rear of the station, defendant broke and ran from the officers. He was apprehended after running some 150 feet.

Officer Behnke testified that there were about 15 people in front of the apartment building at 124 South Paulina Street, and that defendant was standing with the group when he was confronted by the officer. No one other than the defendant was questioned concerning the automobile, Officer Behnke stating that he “didn’t have time.” No search was made of the area by any of the police officers at the scene.

Defendant testified in his own behalf and stated that on July 20, 1963, during the afternoon and until about 10:00 p. m., he was at the home of his sister Mrs. Sirlena Bell, in Chicago. About 10:00 p. m., he and his sister went to the home of his girl friend, Dorothy Richardson, and after staying there some 45 minutes, the three walked to the apartment building at 124 South Paulina Street to see defendant’s brother who was visiting at that address. Defendant testified that as he was speaking to his brother, who was leaning out of a second floor apartment window, an automobile came out of an alley approximately 75 feet to the north of where he was standing. The automobile made a noise as it turned out of the alley, proceeded south on Paulina Street and turned into the alley next to where defendant was standing. As the automobile went into the alley defendant recognized the driver as resembling a person named “Slick” whom he had previously met in a local poolroom. There was a noise in the alley as if the automobile had hit a pole or a garbage can and defendant stepped into the alley to see what had happened. Defendant testified that he saw the man get out of the car and run down the alley in a westerly direction. The squad car then pulled into the alley and Officer Behnke asked defendant if he had been driving the Pontiac, to which defendant replied “No.” After the police had determined that the automobile was stolen, defendant was searched, arrested and taken to the police station. Defendant stated that he was ordered by the officers to drive the Pontiac to the station, but had refused for the reason that he did not know how to drive.

Defendant testified that on reaching the police station he overheard one of the officers state that because defendant was a parolee he was in a “mess-up.” Defendant stated that he then recalled the warning of his parole officer that any contact with the police for any reason whatsoever would be a violation of his parole. Defendant testified that at this point he broke and ran from the officers and was apprehended a short while later.

The testimony of Dorothy Richardson, Wilbur Davis, Sirlena Bell and Bertha Crape, persons in and around the apartment building at the time of the incident, substantially corroborated defendant’s account of the occurrence, with the exception of Wilbur Davis and Bertha Crape who were either unable to or did not look into the' alley. The witnesses were further in agreement that the squad car arrived at the scene about a minute after the Pontiac turned into the alley.

Defendant maintains that the State’s evidence failed to establish that he had possession or control over the automobile, that his uncontradicted evidence positively established an alibi and that his conviction rests on circumstantial evidence which can be explained on reasonable grounds consistent with his innocence.

It is well settled that the possession of a recently stolen automobile is sufficient to warrant a conviction for theft of that automobile. People v. Litberg, 413 Ill 132, 108 NE2d 468. It is also true that possession of stolen goods may be proved by circumstantial evidence. People v. Gavurnik, 2 Ill2d 190, 117 NE2d 782. However, in order that recent possession be evidence of guilt it must be exclusive in the accused. The possession must be such as to indicate that the accused and not someone else took the property. If the place where the property is found is such that another person could have had access thereto as well as the accused, it cannot be said that the property was in the accused’s exclusive possession and the circumstance would not be evidence of his guilt. People v. Lardner, 296 Ill 190, 129 NE 697; Watts v. People, 204 Ill 233, 68 NE 563. Mere association with a stolen article is not necessarily the possession of that article, and before any inference of guilt can arise from the circumstance it must be shown that the accused was in possession. People v. Barnes, 311 Ill 559,143 NE 445.

The State’s evidence shows no connection between the defendant and the man whom Officer Behnke testified he saw driving the Pontiac. Defendant himself was not seen actually in the automobile nor getting out of it. The only association shown between the defendant and the Pontiac was that defendant was “along side” or “a couple of feet” behind the automobile when the police entered the alley. The Pontiac was lost from the view of the police officers for a period of a few seconds, and the first time they observed the defendant was when Officer Behnke testified defendant was walking away from the automobile.

The State maintains that defendant’s proximity to the Pontiac when he was first observed raises the presumption that the defendant was the only person who could have had possession of the automobile. The State relies on People v. Skelly, 409 Ill 613, 100 NE2d 915, and People v. Huff, 29 Ill2d 315, 194 NE2d 230, in support of this contention. These cases stand for the proposition that a conviction may be predicated upon circumstantial evidence and guilt inferred therefrom. Furthermore, the circumstantial evidence involved in the Skelly and Huff cases is much stronger than in the case at bar. In the Skelly case defendant was tried for murder and claimed self defense. There was no direct evidence bearing on the question of self defense, but on the contrary, the circumstances strongly indicated that self defense could not have been the reason for the killing, since the defendant, armed with a gun, had sought out the victim for some 13 hours before the victim was killed; defendant immediately fled from the scene of the crime and threw the gun into a a river. In the Huff case defendant was convicted of beating a child to death. Although there was no direct evidence of the fatal beating, a strong inference of defendant’s guilt arose due to four separate beatings of the child by the defendant in the two days preceding the child’s death. In the case at bar evidence that defendant was near and walking away from the Pontiac does not afford an inference that he was the driver of the automobile at the time it was pursued by the police. During the time lapse when the officers lost sight of the Pontiac the driver of the automobile could have escaped down the alley.

The case of People v. Wisz, 360 Ill 126, 195 NE 515, is incorrectly cited by the State as standing for the proposition that possession of a stolen automobile may be inferred by an accused’s proximity thereto. As the police in the Wisz case were chasing the automobile it crashed, and its two occupants were observed by the police getting out of the automobile and attempting to flee. One of the defendants was found lying near the stolen automobile and the other found across the street under another automobile. The testimony in the Wisz case was to the effect that the police never lost sight of the stolen automobile and its occupants from the time they began to pursue the automobile and the time that the defendants were arrested, that only the defendants were seen getting out of the automobile, and that no one else was in the immediate area of the stolen automobile at the time of the crash. In the case at bar, however, the Pontiac, and its driver, were out of sight for a length of time and the defendant was not seen in the automobile, nor getting out of it. The defendant’s alibi, that a man named “Slick” was driving the automobile and escaped down the alley after the automobile struck the pole or garbage can, is consistent with these facts.

The State further contends that the fact defendant attempted to flee custody of the police officers at the time they arrived at the station tends to show a consciousness of guilt and raises an inference of guilt. Ordinarily an attempt to flee custody after an arrest is evidence of guilt, People v. Autman, 393 Ill 262, 65 NE2d 772, but in this case a serious question arises as to the reason for defendant’s attempted escape. No attempt to escape was made until after defendant overheard the police officers discussing his parole status. The effect of his flight in this instance is consequently weakened as evidence of guilt.

No evidence was offered by the State other than the testimony of Officer Behnke. The other officer in the police car was not called as a witness. Although Officer Behnke testified that defendant told him a man named “Slick” had gotten out of the car and ran through a gangway, no attempt was made by the officers to search the area nor was any one questioned other than the defendant. Defendant’s claim that he was unable to drive an automobile, which was corroborated by Mrs. Bell, was uncontradicted by the State’s evidence.

We are of the opinion that the State failed to prove defendant guilty beyond a reasonable doubt.

The judgment is reversed.

Judgment reversed.

BRYANT, P. J. and LYONS, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DRUCKER

license: Public Domain

text:
    Joy Schwartz, Plaintiff-Appellant, v. Morton S. Schwartz, Defendant-Appellee.
    Gen. No. 50,792.
    First District, Fourth Division.
    April 1, 1966.

      Harold Orlinsky, of Chicago, for appellant.
    Paul C. Ross, of Chicago (Harry S. Weber, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff appeals from that part of an order construing the portion of a divorce decree which provides that defendant pay as support for his two minor children “the sum of $145 per month or 25% of his net income after taxes.”

In April 1965, three years after the entry of the decree, plaintiff filed a petition requesting that the defendant be ordered to produce certain financial books and records for the purpose of determining the amount by which 25 % of his net income exceeded the sum of $145 per month for the years 1962 through 1964 and alleging that defendant had failed to comply with an agreed court order entered on December 10, 1964, that he render an accounting of his income for that period. Defendant moved to strike the petition on the ground that under the aforesaid provision he had the option of paying and had paid the lesser of $145 per month or 25% of his net income. Plaintiff filed an answer to the motion to strike and contended that under the provision the defendant was obligated to pay the greater of the aforesaid amounts. The trial court found that the defendant had the option of paying $145 per month or 25% of his net income; and that having paid the former, defendant need not account for or furnish information as to his income. In this appeal plaintiff contends that the provision is ambiguous and should be construed so as to require the defendant to pay for child support the sum of $145 per month or 25% of his net income after taxes, whichever is larger.

The evidence discloses the following:

Plaintiff and defendant were married on September 6, 1947, and were separated on August 11, 1961. Two daughters were born of the marriage. The parties were represented by counsel: plaintiff by her uncle (Frank Goldberg), and defendant by a family friend (Max Rittenberg). With the advice and consent of their respective clients these attorneys carried on negotiations with regard to effectuating a settlement of various rights and obligations including that of child support payments. In October 1961 counsel for the plaintiff received a memorandum of defendant’s proposal for child support which provided as follows: “minimum $50 a week for both, based on $10,000 a year income gross (each year to date from Decree) and percentage of increase on some formula, with a maximum.” Upon receipt of this memorandum, counsel for the plaintiff countered with the proposal that the $50 a week minimum should be based upon a $10,000 a year net income before income taxes with an additional 15% of income from $10,000 to $15,000 and an additional 10% of income from $15,000 to $20,000, with no further additional amounts due on income of over $20,000. After numerous conferences between counsel, the attorney for plaintiff was notified that defendant had agreed to the terms set forth in the aforesaid counter-proposal with the exception that he should pay, on net income of $10,-000, a minimum of $25 per week for each child instead of $50 per week for both.

Shortly after the aforesaid series of exchanges the parties had a “blow-up,” both attorneys withdrew from the case because of their relationship to the parties and other counsel were engaged. Subsequently a complaint for divorce was filed by the plaintiff but negotiations and discussions continued between the parties and their new counsel regarding settlement of the case. Finally, during a hearing before Judge Canel on a motion for temporary support, a settlement was reached. Counsel for the plaintiff, Stanton Ehrlich, was instructed by the court to prepare a decree “in conformity with that settlement.” Stanton Ehrlich testified in support of plaintiff’s interpretation of the provision in question and stated that:

My understanding with reference to whether there was any minimum specified was that the figure that was named was the minimal figure for child support, and that the percentage figure was to have applied when the defendant had income from whatever sources against which the percentage figure could apply, but in no event would it be a lesser figure than the $145 amount that was listed. I had a conversation with Mr. Friedman [referring to defendant’s attorney at that time] as to the reason for this provision in Mr. Sol Friedman’s office at 77 West Washington Street. At the time there were present Joy Schwartz, my client, and Morton Schwartz, his client. We discussed many of the terms of this settlement, and the child support arrangement was one of them. We discussed this on the basis that we could not determine what a figure of child support should be other than a minimum figure, because the defendant was not then employed. He had previously been employed by the plaintiff’s father, and he at that time was no longer so employed. Therefore, we did not know and could not tell what his income was going to be. My recollection as to what was said by Mr. Morton Schwartz at this meeting that we had, relative to this provision, is that Mr. Schwartz agreed that the figure of $145 a month as child support was agreeable to him, and that he further was agreeable to paying more money for child support when he had income, and it would be on the basis of twenty-five per cent of whatever his income was when he had employment, but in no event would it be less than $145 per month for the child support of these children.

Edwin Armstrong testified that he is a licensed attorney associated with the firm employed by defendant at the time of the entry of the decree and that he was present at the meeting described by Ehrlich. However, the witness did not contradict the testimony of Ehrlich with respect to the conversations at that meeting relating to child support. He testified that the parties went before Judge Canel in an effort to settle the case; that plaintiff and defendant, the two Goldbergs, Stanton Ehrlich, Sol Friedman (the attorney who was the principal representative of defendant at that time) and himself were present at that meeting; and that:

One of the things discussed was the question of child support, and it was Judge Canel’s rule of thumb that he would order about 25% for child support. It was not in this case but in any case. It was one of his ideas or feelings. We pointed out that we didn’t know what our man would make and he figured the 25% was on the basis of the accounts Morton Schwartz might be handling at the time.

Frank Goldberg testified in rebuttal regarding his conversation at that meeting with Sol Friedman and stated that:

He [Friedman] said “Well, take $145.00 because what Smokey [defendant] is making is subject to what his father-in-law gave him, as a bare minimum”, and he said “If he makes more the 25% will attach”, and I said “That will be hard but $145.00 is the bare minimum”, and I said “It should still be $50.00 a week we all agreed to.”
I said “You have two girls”; one was about 13, the other 14. “How can they exist on about $17.50 a piece a week?” I said “That is too damn small.” and he said “That is the best I can do with Smokey at the time.” He said “Leave it alone and let things adjust themselves.”
This discussion I am talking about was in the presence of Judge Canel and in the presence of Mr. Schwartz, Mrs. Schwartz, Mr. Arthur Goldberg. Stanton Ehrlich was there, Sol Friedman was there, everybody who had any connection with the case. The word “minimum” was used in the conversation between myself and Sol Friedman.

Defendant testified that:

My understanding at the time of the entry of the decree as to what was required of me under the terms of the decree as to payments for child support was that it was my option to pay 25% of some term called “net income” or $145 a month.

The meaning of a written instrument has been held to be ambiguous when the language used therein is reasonably susceptible to more than one meaning. Whiting Stoker Co. v. Chicago Stoker Corp., 171 F2d 248 (7th Cir). In a sworn petition filed on December 7, 1964, defendant admitted that the provision in question was ambiguous, alleging in paragraph 10 thereof as follows:

The the Decree for Divorce, insofar as payments for child support, is ambiguous and should set an exact sum of money that should be paid for child support.

The court entered an order on December 10 “without prejudice to either party” which provided in part that the defendant was to render an accounting of his net income from the date of the entry of the divorce decree to the date of the order. Moreover, prior to the introduction of any testimony, counsel for both plaintiff and defendant stated that if there was no ambiguity it was unnecessary to present testimony. The trial judge ruled that the court “wants to hear testimony here.” From this we infer that in the opinion of the court there was a question about the definiteness of the child support provision. Additionally, at the conclusion of all the evidence, the trial judge telephoned Judge Canel (who entered the divorce decree) to ascertain what was meant by the child support provision. We find that the provision in question is ambiguous in nature since it is reasonably susceptible to more than one interpretation. The court therefore followed proper procedure in hearing extraneous evidence for the purpose of ascertaining its true meaning. Greene v. Gust, 26 Ill App2d 2, 167 NE2d 438.

The settlement provisions incorporated within a decree of divorce should be construed so as to give effect to the intention of the parties. Walters v. Walters, 409 Ill 298, 99 NE2d 342. While all judgments and decrees are reasonably construed those which seek to provide support for a child receive special care and consideration of the courts. Vollenhover v. Vollenhover, 4 Ill App2d 44, 123 NE2d 114. At the time of the entry of the divorce decree the minor daughters of the parties were approximately twelve and thirteen years of age, respectively. Since their needs would obviously increase as they grew older, thereby requiring increased amounts of support, it is reasonable to assume that the parties intended to provide for the growing needs of their children so far as this was consistent with the earning power of the defendant. The evidence adduced by the plaintiff clearly shows that it was the intention of the parties at the time of the entry of the decree that defendant was to pay child support in the amount of $145 per month or 25% of his net income after taxes, whichever is greater. Except for the testimony of defendant, there is no testimony supporting the interpretation which defendant seeks to place on the child support provision in question.

Although plaintiff’s petition was not filed under section 72 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 72), defendant argues that plaintiff is barred by the two year limitation of that section from obtaining an interpretation of the child support provision in question. The purpose of that section is to permit a judgment or decree to be set aside, vacated or modified under various circumstances where (1) there is an error which is apparent on the face of the record, or (2) there are facts not appearing in the record which, if known to the court at the time judgment was rendered, would have prevented its rendition. Collins v. Collins, 14 Ill2d 178, 151 NE2d 813. Since plaintiff is not requesting that any portion of the decree be set aside, vacated or modified in any respect but merely that the decree be enforced according to her interpretation thereof, section 72 is wholly inapplicable to the instant case.

We find that under the divorce decree the defendant is required to pay to the plaintiff for child support the sum of $145 per month or 25% of his net income, whichever is greater. The decision of the trial court is therefore reversed and the cause remanded with directions that the court order defendant to produce the financial books, records and other documents as prayed for in plaintiff’s petition of April 9, 1965, to render an accounting of his income for the period in question, and to make such further child support payments, if any, as may be found to be payable under the terms of the decree as interpreted by this opinion.

Reversed and remanded.

ENGLISH and McCORMICK, JJ., concur.


author: MR. JUSTICE LYONS

text:
    Harold Sullivan, Plaintiff-Appellee, v. La Salle Construction Co., an Illinois Corporation, Asbestos Wood Manufacturing Co., an Illinois Corporation, and Johns Manville Dutch Brands Products Corp., a Corporation, Defendants-Appellants.
    Gen. Nos. 49,584, 50,077, 50,160.
    First District, Second Division.
    January 18, 1966.

      Harry I. Parsons, of Chicago (Robert Jay Nye, of counsel), for La Salle Construction Co., appellant; Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (David Jacker, Bernard Harrold, and John M. O’Connor, Jr., of counsel), for Johns Manville Dutch Brand Products Corp., defendant-appellant; Howard & French, of Chicago (Norton Wasserman, of counsel), for Asbestos Wood Manufacturing Co., defendant-appellant; Hubbard, Hubbard, O’Brien & Hall, of Chicago, for Boice Roofing Co., third party defendant-appellant.
    Michael H. Postilion, of Chicago (Fitzpatrick, Postilion, Zegiel & Heineman, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a judgment in favor of plaintiff, which has been consolidated with appeals from judgments in favor of various defendants against other defendants.

On July 29, 1957, a roof was being completed upon a building owned by defendant, Johns Manville Dutch Brands Products Corporation (hereinafter referred to as Johns Manville). Johns Manville engaged architects to draw up plans and specifications and defendant, LaSalle Construction Company (hereinafter referred to as La Salle), was the general contractor. Work proceeded according to the plans and specifications to a point where the I-beam supports for the roof were in place. Underlying beams extended from north to south, parallel to each other, approximately four feet apart. There were no direct cross supports between the I-beams.

A transite roof deck was then erected. The materials specified for the roof deck were as follows:

2502. Corrugated Cement Asbestos: Shall be “Corrugated Transite” as manufactured by Johns Manville Products Corp., shall have 4.2" pitch; shall be 42" wide, ten corrugations per sheet.
2504. Fasteners: Corrugated transite may be secured with any standard J-M approved fasteners such as standard clip-on-methods, Nelson Stud fasteners, or Fabco self-tapping screws per Johns Man-ville standard specifications. . . .
Delivery and Handling 2505. . . .
No cracked or broken sheets shall be used. . . .
Erection-Transite 2506. Sheets shall be of such length that all end joints center over a framing member and shall be laid smooth side down, with all joints butted together.
2507. Transite sheets shall be secured at all framing members by means of the approved methods scheduled in paragraph 2504 above.

The transites were obtained from Johns Manville directly. The Johns Manville transite was a white corrugated material which was not transparent. Prior to delivery each transite was subjected to a weight of more than eight hundred pounds at its center by a hydraulic cylinder. A Johns Manville resident engineer was at the construction site to enforce the above specifications.

The sub-contractor who installed the corrugated transites was the Asbestos Wood Manufacturing Company (hereinafter referred to as Asbestos). The transites were bolted to the I-beams. To do this, holes were drilled through the material and the top of the I-beam. The bolts or fasteners were applied with a torque device and then automatically disengaged. The number of fasteners used was based upon the recommendation of the manufacturer, Johns Manville.

On July 29,1957, plaintiff arrived on the job site about 7:55 a. m. He was one of the roofers employed by the roofing contractor, Boice Roofing Company, (hereinafter referred, to as Boice). He had been a roofer about ten years. All prior roof decks which he worked on had cross support beams directly under them. After he helped to unload insulation from a truck, he was called to the roof by his foreman. Seventy pound bundles of insulation were lifted to the transite roof deck by a rope and an A-frame hoist, and placed upon the deck by plaintiff and four or five other roofers.

Plaintiff testified that after he got up on the deck and set the A-frame hoists, he laid planks in an east-west direction on the transites. He then wheeled two 70-pound packages of insulation on the planks to where they were needed. On one of his trips, plaintiff wheeled in a westerly direction along the planks for about 60 feet from the A-frame hoist when he turned to the north and traveled on the deck in a northerly direction for 50 more feet without any planking under him. When plaintiff arrived at a place about 50 feet north of the plank, he noticed that the roof sagged a bit under his weight. He continued, however, and unloaded the wheelbarrow. He then returned to the spot where he noticed the sag and tested it.

When plaintiff tested the spot, he noticed that there was a crack in the transite and that it would give or yield. The crack was a hairline crack about two feet long. “The crack was parallel to the I-beam” said plaintiff, and the nearest bolt “was approximately six inches away” from where the crack began. Neither he nor the other roofer had noticed the spongy spot prior to the time plaintiff felt the sag in the roof. Plaintiff’s partner complained to the roofing foreman that the deck was unsafe but the foreman said, “It’s all right.” Plaintiff testified that after testing the crack with his hands, he yelled to his foreman telling him about the crack. The foreman denied this. Plaintiff then walked back to the piled insulation and returned along an unplanked route to the same spot with a bundle of insulation. Plaintiff later stated, “I had stepped out onto the transite section with this seventy pound bundle, where the crack was, when I went through and suffered the accident.” Plaintiff injured his feet, hip and hand or wrist.

Plaintiff’s complaint alleged specific acts of negligence against the owner-manufacturer, Johns Manville; against the general contractor, LaSalle; and against the subcontractor, Asbestos.

At the trial, after the evidence was heard, the court, at the request of plaintiff, gave to the jury plaintiff’s instruction No. 8, which was objected to by all defendants. This instruction stated:

The plaintiff claims that he was injured and sustained damage while exercising ordinary care and that the defendants or one or more of them, were negligent in one or more of the following respects:
Permitted the use of unsafe decking;
Failed to inspect the decking, although the defendants knew that the decking was intended to support men working at great height from the ground;
Furnished material which was at all times likely to crack when used as a decking for a flat roof;
Suffered and permitted an unnecessarily large number of holes to be drilled into the said material, although the defendants knew, or in the exercise of ordinary care should have known, that the drilling of such holes would greatly weaken the material;
Suffered and permitted the erection of the decking in such a manner that no cross supports were used so that the decking was likely at all times to crack and give away;
Failed to see that cross supports were used, although their use was necessary for all persons standing on the decking;
Failed to warn the plaintiff of the cracks throughout the decking;
Failed to inspect the material used in the decking;
Drilled various holes in the decking, causing it to crack and weaken;
Failed to replace sections of the decking that had been cracked.
The plaintiff further claims that one or more of the foregoing was a proximate cause of his injuries.
The defendants deny that they were guilty of negligence in doing any of the things claimed by the plaintiff and deny that the plaintiff was in the exercise of ordinary care. The defendants further deny that plaintiff was injured or sustained damages to the extent claimed.

The court also gave plaintiff’s instruction No. 9, which was objected to by all defendants. This instruction stated:

Under our law, Harold Sullivan may attempt to prove in either of two ways that the defendants were negligent. He may prove either what the particular defendants actually did or did not do, or on the other hand, he may attempt to prove the following propositions:
First: That the plaintiff just before and at the time of the occurrence was using ordinary care for his own safety.
Second: That the plaintiff was injured in his person.
Third: That the injury was received from a decking which had been under the control or management of one or more of the defendants.
Fourth: That in the normal course of events, the injury would not have occurred if the defendants, under whose control or management the decking had been, had used ordinary care while the decking was under their control or management.
If you find that each of these propositions has been proved, the law permits you to infer from them that the defendants under whose control and management the decking had been were negligent with respect to the decking while it was under their control and management.
If you do draw such an inference, your verdict must be for the plaintiff if any injury proximately resulted. But if, on the other hand, you find that any of these propositions has not been proved as to a particular defendant, or if you find that a particular defendant used ordinary care for the safety of others in its management of the decking, then your verdict should be for that defendant.

The jury returned a verdict against all three defendants in the sum of $15,000 and judgment was entered thereon. Post trial motions were denied.

After plaintiff obtained judgment, several actions-over were determined. A judgment on the pleadings was entered in favor of Johns Manville against both Asbestos and Boice in the sum of $15,000. The gravamen of the Johns Manville pleading was a contract clause requiring Asbestos to indemnify Johns Manville if Asbestos was the cause of the injury to Sullivan or if the injury to Sullivan was incidental to the execution of the work by Asbestos. The answer alleged affirmative defenses. Asbestos and Boice have appealed from this judgment in #50,077 and #50,160 respectively.

A judgment on the pleadings was also entered in favor of LaSalle against both Asbestos and Boice in the sum of $15,000. The gravamen of the LaSalle pleading was also based on a contract clause requiring Asbestos to indemnify LaSalle if Asbestos was the cause of the injury, or if the injury to Sullivan was incidental to the execution of the work by Asbestos Wood. The answer alleged affirmative defenses. Asbestos and Boice have appealed from this judgment in #50,077 and #50,160 respectively.

The action-over by Asbestos against Johns Manville was dismissed upon the striking of the complaint. Asbestos Wood has appealed from this judgment in #50,077.

An action-over by Asbestos against Boice has not been expressly determined and an action-over by Johns Man-ville against LaSalle has been severed for trial.

Defendant, LaSalle Construction Company, states as its theory of the case that as a matter of law plaintiff was guilty of contributory negligence; that as a matter of law plaintiff assumed the risk of the defects known to him; that as a matter of law defendant, LaSalle, was not negligent in the manner claimed by plaintiff and specified in the amended complaint; that the trial court committed prejudicial error by allowing the doctrine of res ipsa loquitur to be applied, by rendering an excessive verdict and judgment in view of the evidence, by permitting plaintiff to file an amendment to his complaint, and by allowing plaintiff to testify concerning his experiences on other jobs; and that the trial court committed prejudicial error by giving instructions which ignored the question of assumption of risk and contributory negligence, which assumed facts not in evidence, which erroneously imposed legal duties upon defendant, LaSalle, and which allowed a verdict for plaintiff when his negligence may have combined with that of another to cause the injury.

Defendant, Johns Manville states as its theory of the case that plaintiff was guilty of contributory negligence as a matter of law; that it was not guilty of any negligence toward plaintiff; and that the trial court erred in charging that the doctrine of res ipsa loquitur was applicable since defendant, Johns Manville, unlike the other defendants, lacked any control over the section of roof decking in question and since plaintiff pleaded and relied upon specific acts of negligence on the part of the defendants.

Defendant, Asbestos Wood Manufacturing Company, states as its theory of the case that plaintiff was guilty of contributory negligence as a matter of law; that there was no negligence on the part of Asbestos; that the instruction charging that the doctrine of res ipsa loquitur was applicable was erroneously given to defendant, Asbestos; and that the instructions were unsupported by the evidence.

Plaintiff states as his theory of the case that plaintiff was not guilty of contributory negligence as a matter of law; that the doctrine of res ipsa loquitur was correctly given; and that the verdict was not excessive or against the manifest weight of the evidence.

A common contention raised by the various defendants is that the trial court committed prejudicial error in giving an instruction that the doctrine of res ipsa loquitur was applicable. In support of their contention they propound, one, that the doctrine of res ipsa loquitur is not applicable in cases involving multiple parties exercising different authority over the injury producing instrumentality and two, that the principle is not applicable where plaintiff relies solely on acts of specific negligence. Inasmuch as we agree with the various defendants as to the latter proposition, we do not have to discuss the former.

It has frequently been held by the courts of Illinois that the res ipsa loquitur principle is not available where a plaintiff relies solely upon specific allegations of negligence. Kerby v. Chicago Motor Coach Co., 28 Ill App2d 259, 171 NE2d 412 (1960); Jackson v. 919 Corp., 344 Ill App 519, 101 NE2d 594 (1951). In support of his position, plaintiff relies on the case of Cobb v. Marshall Field and Co., 22 Ill App2d 143, 159 NE2d 520 (1959). In that case, however, the court only held that plaintiff was not prejudiced by the fact that counts of general and specific negligence, which had been pleaded by plaintiff, went to the jury. That holding is irrelevant to the issue at hand, which is whether the jury can properly be charged on the doctrine of res ipsa loquitur when plaintiff relies solely on specific allegations of negligence.

In Erckman v. Northern Illinois Gas Co., 61 Ill App2d 137, 210 NE2d 42 (1965), the court was faced with the same problem facing us in the instant case. There the trial court submitted an instruction, which permitted the jury to apply the doctrine of res ipsa loquitur. The defendant contended that this was improper because only specific negligence was pleaded. The court found that the giving of this instruction constituted reversible error in that it permitted the jury to apply the res ipsa loquitur inference of general negligence to the case when general negligence had not been pleaded. We affirm the ruling of that court that, specific allegations of negligence standing alone, will not support application of the res ipsa doctrine. The plaintiff’s instruction No. 9 given by the trial court on res ipsa loquitur over the defendants’ objections was prejudicial to defendants.

Plaintiff next implies that the allegations of his complaint are both general and specific and thus, application of the doctrine was permissible. An examination of the complaint reveals that the allegations are specific only. We do not have to decide whether or not an instruction on res ipsa loquitur is applicable where a plaintiff pleads both general and specific allegations of negligence.

Inasmuch as we are remanding the case for retrial, because of the prejudicial instruction given by the trial court, we do not rule on most of the remaining appeals, as they involve actions over and between the various defendants. In the action over by Asbestos, however, which came up to this court in #50,077, we find that the trial court properly dismissed the action. An examination of the complaint of Asbestos reveals the complaint was defective because the action over was based on a theory of breach of implied warranty, but no sale was alleged between the parties.

Even though we do not rule on the merits of the remaining appeals, an examination reveals that the rulings of the trial court on the various actions over involved in #50,077 and #50,160 were proper.

The judgment in appeal #49,584 is reversed and the cause remanded with directions for further proceedings consistent with these views.

The judgment of dismissal in the action over by Asbestos against Johns Manville, which was also involved in #50,077, is affirmed.

The judgments in all the actions over in appeals #50,077 and #50,160 (except the action over by Asbestos against Johns Manville, which is affirmed) are reversed and the causes remanded, with directions for further proceedings consistent with these views.

Judgment reversed and remanded with directions as to #49,584.

Judgment affirmed as to that part of #50,077 in the action over dismissing complaint by Asbestos against Johns Manville.

The judgments in all the actions over in appeals #50,077 and #50,160 (except the action over by Asbestos against Johns Manville, which is affirmed) are reversed and the causes remanded with directions for further proceedings consistent with these views.

BRYANT, P. J. and BURKE, J., concur.

On Rehearing

Having examined the petition for rehearing, the answers and the reply and having reconsidered the original briefs and arguments, we have decided to adhere to our opinion.


author: MR. PRESIDING JUSTICE BRYANT

text:
    Richard A. Berger, et al., Plaintiffs-Appellees, v. Village of Riverside, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 50,043.
    First District, Second Division.
    April 5, 1966.

      Tenney, Bentley, Guthrie & Howell, of Chicago (S. Ashley Guthrie and David C. Newman, of counsel), for appellant.
    Harold R. Corwin, of Chicago, for appellees.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from a declaratory judgment order entered June 23, 1964, in the Circuit Court of Cook County which contained findings that certain provisions of the zoning ordinance of the appellant Village of Riverside have no relation to the public health, morals, safety, comfort or welfare as applied to the appellees’ property, and constitute an unconstitutional deprivation of the appellees’ property. The court ordered that the Village permit the appellees to construct an eleven apartment building on the property in question, even though the Village had zoned it for two-family dwellings.

As shown by findings made in the judgment order, the appellees are the owners of certain real estate located in the Village of Riverside and extending from the southwest corner of York Road and Harlem Avenue to the northwest corner of Shenstone Road and Harlem Avenue. The length of the property along Harlem Avenue is 218 feet, 2 inches; it extends along York Road 133 feet, 7% inches; it has a length on Shenstone Road of 107 feet, 2% inches. The development along both Shenstone and York Roads has been in the character of single-family residences. Harlem Avenue, on the other hand, is a major traffic artery with multiple-family dwellings and light business and commercial uses on both sides of the street.

The argument of the appellant Village is that the classification of this property for two-family dwellings is proper transitional zoning and acts as a buffer between the commercial and apartment character of Harlem Avenue and the single-family residences on York and Shenstone Roads. The appellees insist that the character of the land is determined by Harlem Avenue and argue that they should be allowed to construct a multiple-family dwelling which use would be in keeping with the character of Harlem Avenue. They point out that there are single-family residences all through the area and that there is no transitional zoning provided for except for this parcel of land and the land immediately to the south, which extends less than a block along Harlem Avenue.

There is a map in evidence showing the property uses along Harlem Avenue for some distance in either direction from the subject property. Harlem Avenue is a north-south street and is in this area the dividing line between the Village of Riverside and the Village of Berwyn. The appellant Village of Riverside claims that the development on the Berwyn side of Harlem Avenue cannot be taken into account. It is argued that any zoning must begin and end somewhere and that a street is a perfectly good place to mark the end of one type of zoning and the beginning of another type. In support of this proposition, the Village cites Mundelein Estates v. Village of Mundelein, 409 Ill 291, 99 NE2d 144 (1951). That opinion reads in part:

“. . . Appellants’ position is based largely on the decision in Forbes v. Hubbard, 348 Ill 166, which stated that in zoning property of the character there involved, dividing lines should avoid making one side of a main artery of travel purely residential, where the opposite side is used as business property and has established its character as such. The Forbes case does not set any hard and fast rule as to the location of dividing lines along streets, and the decision was, as is true in all zoning cases, based on the peculiar facts of that case. The same facts do not exist here, nor are the properties and locations involved substantially similar. It is true, also, that some physical features of a street such as width, gradient, and its utilization by various means of transportation may make it desirable, reasonable and best for public safety and convenience, that one side be zoned for residence purposes and the other side for commercial use. For the most part, despite the decision in the Forbes case, we have held that where the question of whether property should be characterized as residential or as commercial is fairly debatable, it is a question to be answered by the city council and not by this court. (Wesermann v. Village of LaGrange Park, 407 Ill 81; Neef v. City of Springfield, 380 Ill 275.) Zoning must begin and end somewhere, and we cannot, in this instance, say that it was arbitrary or unreasonable to make Lake Street a dividing line between zoning districts. The question of the character which attaches to appellants’ property is certainly debatable, and as the trial court must have felt, we see no purpose in changing the characterization fixed by the village of Mundelein.” 409 Ill 291, 296, 99 NE2d 144, 147, 148 (1951).

It is a basic tenet of zoning law that each case must be decided on its own facts. There is no question but that a street can be a proper dividing line between zones; the only question is whether the zoning ordinance as applied to the parcel in question is reasonable. In determining this, the court must look to all the surrounding uses. The court should consider the uses on the other side of the street, even though that property is located in another Village. Forbes v. Hubbard, 348 Ill 166, 180 NE 767 (1932). Of course, the fact that the property across the street is zoned for apartment houses is not conclusive of the question at bar, and does not foreclose the proper use of transitional zoning. It seems clear, however, that all the surrounding uses should be considered to determine whether a zoning classification is reasonable.

There is an exhibit in evidence showing the property uses along Harlem Avenue for some distance in either direction from the subject property. This map begins on the north with the Illinois Central Railroad tracks, and immediately to the south on the west side of the street— the side in Riverside — are four empty lots with a frontage on Harlem Avenue totaling 100 feet. Immediately south of these lots, Berkley Road intersects Harlem Avenue and the next block is devoted to business uses. The business uses as listed on the exhibit are a printing company, a drive-in, a cleaner and a gas station.

Across the street to the south of the gas station is another gas station, the next uses to the south being a beauty shop and a contractor’s office. There then follows on this same block, 16 lots occupied by multiple-family residences. The next two lots are used for two-family residence purposes, and the following 13 lots are again occupied by apartment buildings. At the south end of this block are three lots occupied by a funeral home.

The next block to the south was originally zoned for two-family residence purposes, and the four southernmost lots on this block have been used for this purpose. Since the original zoning, however, the ordinance was changed to permit the development of the rest of the block for multiple-family residence purposes, and the land has been so developed. The land on Harlem Avenue in the following block is the subject property, which is vacant.

Immediately south of the subject property the land is zoned for two-family residence purposes, the same zoning as the subject property. This land is vacant except for a nonconforming use in the form of a four-story, 30 apartment building located on the southern 90 feet of that block. The first half of the next block is occupied by a single-family residence, the southern portion of that block containing a truck garage, a beauty shop, a delicatessen, and an insurance company office. The following block has a paint store, a restaurant, a florist, another beauty shop, a cleaner, a laundromat, a men’s clothing store, a restaurant, a drug store and a drive-in restaurant. The short block at the southern end of the map shows a gas station.

Thus it can be seen that the west side of Harlem Avenue is devoted almost entirely to multiple-dwelling and commercial use. The entire area behind these lots, moreover, is used for single-family dwelling purposes.

On the east side of the street, located in the Village of Berwyn, immediately across the street from the subject property, are 10 lots devoted to multiple-family residence use. Of the 13 remaining lots on this block, 10 are being used for multiple-family residence purposes and three for single-family residences. The block north of this has nine lots used for multiple-family residences and 12 lots being used for business purposes including an auto repair shop and a restaurant and lounge. The block south of the block immediately across the street from the subject property has two lots used for multiple-family residence purposes and 33 lots devoted to business purposes.

It is unnecessary to discuss all the particular uses for this entire strip of land on the east side of Harlem Avenue. The exhibit shows that there are no more single-family residences on the east side of the street than on the west, and a greater proportion of the land is used for business purposes than on the west side of Harlem.

The question for determination here is whether the classification of the subject property as “B1 Residence District — Duplex” is a valid use of so-called transitional zoning. It is clear that a municipality may choose to place a buffer zone between business and commercial uses on the one hand and single-family residences on the other. The difficulty here is that the Village of Riverside did not see fit to use transitional zoning in the form of duplex housing except for two blocks in this nine-block strip of land.

The general principles of law to be applied to a case such as this are clear. We quote from Elmhurst Nat. Bank v. City of Chicago, 22 Ill2d 396, 176 NE2d 771 (1961):

“In reviewing [the] judgment we note the great bulk of cases reiterating the rules that a zoning ordinance is presumed valid; that the burden is upon the person attacking its validity to establish by clear and affirmative evidence that it is arbitrary; that the courts should not overrule the decisions of municipal authorities where the reasonableness of the classification is detabable [sic], and the action of the municipal authorities is not capricious; and that the validity of each zoning ordinance must be determined on its own facts and circumstances. Dalkoff v. City of Rock Island, 17 Ill2d 342; LaSalle Nat. Bank of Chicago v. County of Cook, 12 Ill2d 40, 46; Krom v. City of Elmhurst, 8 Ill2d 104; Liberty Nat. Bank v. City of Chicago, 10 Ill2d 137, 145; Williams v. Village of Schiller Park, 9 Ill2d 596; Bullock v. City of Evanston, 5 Ill2d 22.
“In determining the reasonableness of zoning ordinances the cases have also enumerated as relevant factors the extent to which the value of the property is diminished by restrictions (Dalkoff v. City of Rock Island, 17 Ill2d 342); the extent to which the removal of the restriction would depreciate the value of other property in the area (People ex rel. Alco Deree Co. v. City of Chicago, 2 Illd 350; Liberty Nat. Bank v. City of Chicago, 10 Ill2d 137); the reliance on existing zoning ordinances (Liberty Nat. Bank v. City of Chicago, 10 Ill2d 137; Kennedy v. City of Chicago, 11 Ill2d 302); the suitability of the property for the zoned purpose (Krom v. City of Elmhurst, 8 Ill2d 104, 112; Myers v. City of Elmhurst, 12 Ill2d 537, 544); the existing uses and zoning of nearby and surrounding property (People ex rel. Alco Deree Co. v. City of Chicago, 2 Ill2d 350, 356; LaSalle Nat. Bank v. City of Chicago, 4 Ill2d 253, 256); and the extent to which the ordinance promotes health, safety, morals or general welfare of the public.”

Elmhurst Nat. Bank v. City of Chicago, 22 Ill2d 396, 401, 402, 176 NE2d 771, 774 (1961).

Our Supreme Court specifically stated in LaSalle Nat. Bank v. County of Cook, 12 Ill2d 40, 46, 145 NE2d 65 (1957) that one factor the courts should consider in determining whether or not a zoning classification was reasonable was “the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property, [citing cases].” We note that except for a small parcel of land on the west side of Harlem Avenue immediately to the south of the Illinois Central Railroad tracks, the only vacant land on that side of the street is that which is zoned for two-family residence purposes. We also note that all the land zoned for two-family residence purposes is vacant with the exception of that parcel on which is situated the nonconforming four-story, thirty-apartment building. On the east side of the street, throughout this nine-block length of Harlem Avenue, there is only about 160 front feet of vacant property. This would seem to suggest that the zoning for two-family residences is not economically feasible.

The evidence given by the witnesses at the two-day trial disclosed that the appellees purchased the subject property for $36,000 in 1961. At that time the land had its present zoning classification. Neither appellee made any inquiry concerning the permissible uses for this land. Mr. Berger said, “I took it for granted that it was zoned apartment because everything around there was apartment property.” Of course, this fact does not prevent the appellees from challenging the validity of the zoning ordinance as applied to their property. American Nat. Bank & Trust Co. v. Chicago, 30 Ill2d 251, 195 NE2d 627 (1964). The evidence shows that the appellees attempted to sell the property when they found that it was not zoned for apartment purposes, but according to Mr. Berger they could find no prospective customers for the property as long as it kept its present zoning.

George H. Kranenberg, a zoning expert, testified for the appellees. He stated that he had conducted a personal inspection of the property in question, and also investigated the surrounding area as to its zoning and its present uses. He said he was of the opinion that the highest and best use of the subject tract of land from a planning and zoning standpoint is for multiple-family use. He testified that the property was suitable for apartment use because of its size, shape and relationship to Harlem Avenue. He said that in his opinion the property had not been built up because the zoning of the land was unrealistic and incompatible with the existing zoning both in Riverside and Berwyn. Other expert witnesses also said that the highest and best use of the property in question was for multiple-housing purposes. One of these expert witnesses, George Korbel, chief appraiser for General Federal Savings and Loan Association of Cicero, Illinois, said that in his opinion the construction of an apartment building on the site would not have an adverse effect on the value of the surrounding properties.

The Village of Riverside presented four expert witnesses. Howard R. Olson, staff consultant for the Northeastern Illinois Metropolitan Area Planning Commission and chairman of the Plan Commission of the Village of Riverside — the body which denied approval of the change in zoning for the subject property said that the land contains 26,000 square feet and that if subdivided for use in constructing two-family dwellings, three such structures could be erected since the zoning ordinance requires that each residence lot have an area of 7,000 square feet. This witness said there would be more traffic if an apartment building were built on the land and noted that twice the number of parking places would be required for the proposed apartment building than would be necessary for the three two-family residences.

The next witness for the appellant Village was Carl L. Gardner. After stating his background as a zoning consultant, he said that the idea of transitional zoning between Harlem Avenue and the single-family dwellings to the west, “shaped up very well in the basic structure of Riverside.”

Other witnesses stated that the construction of an apartment building on the lot would decrease the value of the surrounding property. No figures were given as to how much depreciation there would be to the property on Shenstone Road if the apartment building were built. Two of the owners of property on Shenstone Road took the stand to object to the erection of an apartment building on the subject property because it would, in their opinions, change the character of Shenstone Road.

It has been argued that the property in question is different from the other property in that the other parcels face Harlem Avenue and have an alley running behind them so as to separate them from the single-family residences on the other side. We note, however, that there are several places along Harlem Avenue where business uses are permitted without an alley separating the property from the adjoining residential property. At one point, for example, there is a truck garage immediately next to a lot used for single-family residence purposes. Other business uses adjoining such residence lots include a beauty shop, a delicatessen, a paint store, a restaurant, a laundromat, and a drive-in restaurant. If the Village permits these uses to be situated on land contiguous to single-family residence lots, we think it is highly unreasonable for them to deny the owners of the subject property the right to build an apartment building on their land.

Nowhere else is there transitional zoning, and we do not think the Village has shown why these two blocks should be treated in a manner different from the rest of the property adjacent to Harlem Avenue.

While it is true that from the evidence adduced at the trial it would seem that the appellees would suffer no great financial loss if the zoning were not changed, nevertheless, this cannot preclude them from challenging a classification which treats their property differently from other property similarly located. Zoning ordinances can be upheld only insofar as they subject the rights of private owners to the public good. Where, as in this case, it appears that the classification being imposed on the subject property is arbitrary and has little connection with the public health, safety and welfare, the owners of the land should succeed in their attempt to have the zoning ordinance declared invalid insofar as it applies to their property.

The claim that an apartment building would increase traffic can be made for any of the apartment buildings located on both sides of Harlem Avenue. There is no indication that this particular apartment building would add more traffic than any of the other like structures. As the Supreme Court has said, “While we have recognized traffic as a factor, it is not in itself entitled to too much weight since it is a problem in all but the most sheltered neighborhoods and is constantly getting worse.” LaSalle Nat. Bank v. Village of Skokie, 26 Ill2d 143, 146, 186 NE2d 46, 48 (1962).

The question is not whether the Village of Riverside can use transition zoning to create a buffer zone between Harlem Avenue and the residential areas, but whether they can create a so-called “transition zone” for two blocks along the street while permitting much wider uses everywhere else along Harlem. It is our opinion that the zoning ordinance of the Village of Riverside as applied to the property in question is unreasonable and arbitrary and has no reasonable connection with the public health, safety or welfare. For these reasons, the judgment order of the Circuit Court should be and is affirmed.

Judgment order affirmed.

LYONS and BURKE, JJ., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    The People of the State of Illinois, Defendant in Error, v. Herbert Culbert, Plaintiff in Error.
    Gen. No. 64-78.
    Second District.
    April 5, 1966.

      Leonard Remencius, of Rockford, for appellant.
    William R. Nash, State’s Attorney and William H. Snively, Assistant State’s Attorney, both of Rockford, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

On September 4, 1963, an Information was filed in the Circuit Court of Winnebago County charging the plaintiff in error (hereinafter called defendant) with having committed the offense of Indecent Liberties with a Child in violation of chapter 38, section 11-4, Illinois Revised Statutes, 1961. Thereafter, on September 19, 1963, the State’s Attorney for Winnebago County filed a Petition to adjudicate the defendant a sexually dangerous person pursuant to the Sexually Dangerous Person Act. (Ill Rev Stats 1961, c 38, Pars 820.01 et seq.) A hearing was held on October 9, 1963, on the Petition and the defendant was adjudicated a sexually dangerous person and committed to the custody of the Director of Public Safety.

The defendant brings this appeal on the grounds that he was denied certain of his rights under the constitutions of both the United States and the State of Illinois. He urges that he was deprived of his right to be held to answer for the crime with which he was charged only by indictment by a grand jury. He further contends that the trial court unlawfully failed to advise him of his right to counsel before accepting his waiver of his right to be proceeded against by indictment.

Section 8 of Article II of the Constitution of the State of Illinois (1870) provides as follows:

“No person shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army and navy, or in the militia, when in actual service in time of war or public danger: Provided, that the grand jury may be abolished by law in all cases.”

Section 702 of Division X of the old Criminal Code (Ill Rev Stats 1961, c 38, § 702) contained a provision for a waiver by the accused of his right to be proceeded against by grand jury indictment, to-wit:

“702. Prosecution in circuit courts: All offenses cognizable in the said courts shall be prosecuted by indictment, or, except for the crimes of treason, murder or manslaughter, by information if the defendant, after he has been advised of the nature of the charge and of his rights, waives in open court prosecution by indictment. The prosecution of a felony under an information shall be conducted in accordance with the statutory requirements of proceedings under an indictment.”

Rule 26(3) of the Supreme Court Rules (Ill Rev Stats 1961, c 110, §101.26(3)) elaborates and expands this provision to include the requirement that the right to prosecution by indictment be “understandingly” waived by the accused. It provides:

“The court shall not permit a plea of guilty or waiver of indictment or of counsel, by any person accused of a crime for which, upon conviction, the punishment may be imprisonment in the penitentiary, unless the court finds from proceedings had in open court at the time waiver is sought to be made or plea of guilty entered, or both, as the case may be, that the accused understands he has a right to be held to answer for the offense on indictment by a grand jury and has under standingly waived that right and consented to his prosecution by information, that he understands the nature of the charge against him, and the consequences thereof if found guilty, and understands he has a right to counsel, and understanding^ waives that right. The inquiries of the court and the answers of the accused to determine whether he understands his rights to be indicted by a grand jury and to be represented by counsel and comprehends the nature of the crime with which he is charged and the punishment thereof fixed by law, shall be taken and transcribed and filed in the case. The transcript, when filed, becomes a part of the common law record in the case.”

It is significant that the explicit requirement that the accused “understands” his waiver of this right has been included in the new Criminal Code. (Ill Rev Stats 1965, c 88, § 111-2).

The crime of Indecent Liberties with a Child, with which defendant was charged, provides that a person so convicted “shall be imprisoned in the penitentiary from one to twenty years” and is thus, by definition, a felony.

The record before us contains the following colloquy between the court and the defendant relative to his right to be held to answer for this crime on indictment by a grand jury:

“THE COURT: You are Herbert F. Culbert ?
THE DEFENDANT: Yes.
THE COURT: Do you want to waive the intervention of the Grand Jury?
THE DEFENDANT: It’s up to you.
THE COURT: Well, it’s not up to me. It’s up to you, if you want to waive, I ' will accept your waiver.
THE DEFENDANT: Well, that will be all right.
THE COURT: Do you have an attorney?
THE DEFENDANT: No, I haven’t. I tell you, your Honor, if you let me loose this time, I’ll never come back no more, never. My mind is differrent since I come in.
THE COURT: Well, yes, but there is nothing I can do at this time. You have to stand trial. Do you have an attorney?
THE DEFENDANT: No, sir, I haven’t.
THE COURT: Let the record show that the Defendant has been advised of his rights and waives the intervention of the Grand Jury. Leave is given to file the Information.”

We do not feel that this record discloses that the defendant was informed of the crime with which he was charged or that he “understandingly” waived his right to be indicted by the grand jury. Rather, the responses of the accused indicate only a vague understanding that he was in trouble and a childish effort to placate the trial judge. It is obvious that he had no understanding of the nature of his right in this regard or the consequences of its waiver. There is no indication that the trial court made any attempt to apprise him of the charge or his right to answer for the offense on indictment by the grand jury, rather than by information.

It was only after the purported waiver of the grand jury indictment that the court appointed counsel to represent the defendant. There are cases that hold that in felony prosecutions the right to counsel attaches at the time of arraignment. The People v. Morris, 30 Ill2d 406, 197 NE2d 433; People v. Kurant, 331 Ill 470, 163 NE 411. Others state that counsel must be appointed before anything is done that might prejudice the defendant in his defense. People v. Jameson, 387 Ill 367, 56 NE2d 790.

We find no cases that hold that counsel must be appointed before waiver of the right to be proceeded against by grand jury indictment can be accepted. Under certain factual situations it might be necessary for an accused to be legally counseled to adequately understand the nature of this right before it can be validly waived. On such occasions leave should be granted to file the information and a motion to strike entered for insufficient waiver and an opportunity given to the defendant to procure counsel or one should be appointed by the court. A short continuance of the cause should be granted to enable the defendant to consult with his counsel. This procedure, in our opinion, would more adequately meet the requirements set forth in Rule 26 (3) of the Supreme Court, supra.

The admonishment of a defendant of his right to be held to answer for the offense by indictment by a grand jury rather than by information and the court’s finding that he has understandingly waived that right and consented to prosecution by information is in the same category as an admonition to a defendant upon entering a plea of guilty to an indictment. In People v. Scott, 55 Ill App2d 375, 378, 204 NE2d 586 the court held that the essentials of an admonishment have been complied with “if an ordinary person in the circumstances of the accused would understand them as conveying the information required by the rule,” citing People v. Doyle, 20 Ill2d 163, 167, 169, 169 NE2d 250, and People v. Thomas, 55 Ill App2d 286, 204 NE2d 582.

In any event, it is clear that the defendant in this case did not possess the degree of understanding of his rights which is required in order to effectively waive them. It is imperative that the trial court adequately inform the accused of the nature of the charge placed against him and instruct him as to his right to be held answerable to that charge only by indictment, and the consequences of a waiver of that right.

The State contends that the defendant’s constitutional rights were not violated. They argue that he might just as easily have been charged with the crime of Contributing to the Sexual Delinquency of a Minor (Ill Rev Stats 1963, c 38, § 11-5), a misdemeanor, and thus have had no right to grand jury indictment. The petition to have him adjudicated a sexually dangerous person could then have been filed on the lesser charge with, presumably, the same result. We do not agree with this logic.

The defendant was charged with a crime so serious as to provide him with certain constitutional safeguards. These safeguards were disregarded by the action of the trial court and any further proceedings must be set aside.

Reversed and remanded with instructions to proceed in accordance with the conclusions expressed herein.

Reversed and remanded.

MORAN, P. J. and DAVIS, J., concur.


author: EBERSPACHER, J.

text:
    O’Fallon Development Co., a Corporation, Plaintiff-Appellee, v. Arthur Reinbold, Lillian Reinbold, Elmer W. Schmidt and Thomas D. Bedell, Partners, d/b/a Home-Brite Co., Defendants-Appellants.
    Gen. No. 65-43.
    Fifth District.
    April 13, 1966.
    Rehearing denied May 5, 1966.

      Lindauer, Nieman & Lindauer, of Belleville, for appellants.
    Sam S. Pessin, of Belleville, for appellee.
   EBERSPACHER, J.

This is an action brought by a lessor against lessees for violation of a written lease.

Plaintiff and defendants executed a written lease dated January 19, 1960, for certain hardware premises located in the Southview Plaza Shopping Center located at O’Fallon, Illinois. Defendants went into possession and thereafter on December 22, 1960, said parties executed another lease, identical in all respects except that it was for a larger location, and covered the period March 31, 1961, to March 31, 1965. Paragraph 16 of the lease provided for liquidated damages upon default by lessee and lessor taking possession. Paragraph 28 provided for a written notice to the lessee upon violation of any covenants or agreements therein contained and if such default continued for a period of 10 days after written notice had been sent, then the lessor, without further notice may terminate this lease and reenter upon and take possession of the demised premises. Paragraph 33 of the lease, and it is this paragraph that is the actual subject matter of this appeal, reads as follows:

“The Lessee agrees to operate its aforesaid business upon the demised premises, that no other use will be made of said premises other than the sale of the items mentioned on Page Two (2) hereof and other commodities and services associated with said business. The Lessee further agrees that said business will remain open everyday of the week excluding Sundays and legal holidays, from the hour of 8:00 A. M. to 5:00 P. M., or any additional period desired by Lessee, and further Lessee agrees to abide by the rules to be hereinafter promulgated by the Lessor or an Association of Tenants (which may include Lessor) for the betterment of the South-view Plaza Shopping Center.”

The agreed minimum rental was $6,500 per year, payable monthly in advance. An additional percentage rental was also payable in event lessee’s gross sales exceeded a certain figure. The lessor declared the lease terminated for alleged violations of the covenants contained therein and took possession of the property. The plaintiff landlord then brought suit to recover liquidated damages. The defendants filed a counterclaim for damages for forcible eviction from the leased premises. The cause was tried before the court without a jury and judgment rendered for plaintiff for $12,746.74, being the actual amount of loss of rent proved, and against defendants on their counterclaim, from which judgment this appeal is taken. Neither party raises any question as to the amount of damages awarded.

The evidence is undisputed that on May 1, 1962, the plaintiff promulgated the following rules:

“(1) All tenants will maintain adequate stock at competitive prices with shopping centers and similar establishments in the Greater Belleville Area.
“ (2) All tenants will maintain an adequate staff of sales people to operate and represent the store.
“(3) All tenants will maintain the store hours from 9:00 A. M. to 9:00 P. M., six days a week, as previously agreed upon which has been established by the Merchant’s Association and O’Fallon Development Company.
“These articles must be followed diligently by each tenant. The only exception to the above articles are those establishments engaged in the service operations which are governed by union contracts.”

On May 7, 1962, plaintiff sent notice to defendants that they were in default of the rules and unless corrected within 10 days the lease would be terminated. On June 1, 1962, without further notice, plaintiff’s agents padlocked and chained the entrance to the store. Defendants were requested to vacate and the June rental was returned to them by plaintiff. Defendants vacated the premises and plaintiff filed suit claiming liquidated damages in the amount of $18,145.66, being the amount provided under paragraph 16.

It is defendants’ contention that there was no violation of the written lease and that the rules promulgated by plaintiff were not in contemplation of the parties at the execution of said lease; that the promulgation of the rules is an attempt to vary the terms of the written contract, that the rule with respect to the hours is in direct contradiction to the express terms of the contract, and that the court erred in admitting evidence with respect thereto. They further point out that despite the language “hereinafter promulgated” that no such rules were appended to or incorporated in the lease, and urge that the words used in the lease and particularly paragraph 33 have definite and precise meaning, and there is no ambiguity, and therefore plaintiff should not have been allowed to present proof to contradict or vary its meaning. They further urge that if the intention of the parties per-

mitted the promulgation of rules subsequent to the execution of the lease, that such promulgated rules, at variance with the express provisions of the lease, could not have been intended to become covenants and conditions of forfeiture and point out that the language of the lease pertaining to forfeiture is based on “covenants herein contained,” the language used in both paragraphs 16 and 28, and that no reference is made to forfeiture for any condition not contained in the lease.

If the language in a lease is plain and unambiguous, proof aliunde cannot be heard to contradict or vary its meaning or give it a meaning inconsistent with the language used in the instrument. Gale v. United States Brewing Co. of Chicago, 181 Ill App 381. No Association of Tenants was a party to the lease, so it is only reasonable to consider that here was a reference to matters outside the express language of the lease, and we consider that the language used in paragraph 33 “to abide by the rules to be hereinafter promulgated” taken with the fact that no additional rules were later set forth in the contract, created an ambiguity and the court proceeded properly to hear evidence bearing on the intention of the parties. We do not consider the maxim of the law “expressio unius est exclusio alterius” applicable here as to the hours of opening and closing; it is a formula of logic having its most frequent use in the construction of remedial statutes and in a lease where the intention of the parties is obvious that other conditions or provisions are to be made, such maxim is not applicable. In South Parkway Bldg. Corp. v. South Center Dept. Store, 19 Ill App2d 14, 153 NE2d 291, the court said the cardinal rule in the interpretation of a lease is that the court should ascertain and give effect to the intention of the parties. We likewise agree with the language of Gale v. United States Brewing Co. of Chicago, supra, at page 387 where the court said, “The same rules of law are applicable to the construction of leases that are applicable to the construction of other contracts, and where the language of a lease is the subject of construction, the object to be attained is to ascertain if it can be done, the intention of the parties to the instrument and give effect to that intention.”

Having determined that there is ambiguity, we examine the evidence and find that the witness Reiger was manager of the store from March 1960 until some time in August 1961, he attended the meetings of Association of Tenants and participated in discussion of the adoption of the hours of 9:00 to 9:00, and that the defendants were members of the Association of Tenants, and that the rules and suggestions of that group were recognized and the store was kept open until 9:00 p. m., during that period. He was succeeded by Kenneth Underwood as manager, who closed the store, according to his testimony, at 6:00 for a period of 3 weeks, and the remainder of the time at 8:00 p. m. The store was not doing a satisfactory amount of business, and a going out of business sale was conducted during the month of March 1962, following which time the store was closed for two weeks. In response to a question as to how late the store was open during the sale, Underwood stated, “I think we kept it open the regular hours, until 9:00 o’clock at that time” and when on cross-examination counsel stated, “At that time you kept open the regular hours of 9 :Q0 o’clock?” he answered, “That is right.” A number of merchants in the shopping center testified as to complaints from customers that the hardware store was closed before 9:00 p. m. Defendants do not deny that the hours of 9:00 to 9:00 p. m. were agreed upon by the Association, nor do they deny that they failed to keep the store open until 9:00 p. m. The practice of abiding by the rules of the Association of Tenants was not discontinued because of their unreasonableness and defendants do not here contend that under the circumstances such rule was unreasonable. Under the provisions of paragraph 33 lessees were given the right to choose to remain open additional hours, and the evidence shows they considered 9:0Q p. m. to be the customary closing time; however, at that time no rule providing for hours other than those of 8:00 a. m. to 5:00 p. m., or such “additional period desired by Lessee” had been promulgated.

As a result it cannot be said that evidence of defendant’s keeping the store open, in the absence of a promulgation of a rule, was evidence of anything other than lessees exercising the right specifically given them to remain open “any additional period desired by lessee.”

A contract is to be construed as a whole, giving meaning and effect to every provision and word, if possible. Belanger v. Seay & Thomas, Inc., 28 Ill App2d 266, 171 NE2d 418. The words “Lessee agrees to abide by the rules to be hereinafter promulgated by the Lessor or an Association of Tenants for the betterment of the Southview Plaza Shopping Center” must be given their full purpose and meaning. In order to give effect to the intention of the parties, the court may take into consideration the position of the parties, the surrounding circumstances which existed at the time of the execution of the lease, as well as the purpose or object the parties had in mind in entering into the lease. South Park Bldg. Corp. v. South Center Dept. Store, 19 Ill App2d 14, 158 NE2d 291. At the time of the signing of this lease, the Southview Plaza Shopping Center was a new development. The defendants were experienced and sophisticated business people, having successfully been engaged in the retail hardware business for a number of years, in a nearby community. It would be logical to assume that the parties to this lease knew that as the center developed and the shopping habits of the community became known, that certain changes for the betterment of the shopping center and its tenants would have to be made. They were experienced and sophisticated enough to know that, in shopping centers, such as this one, a concerted effort had to be made by all of the tenants or else the center would fail to attract business.

The question then arises as whether such reasonable rule, directly in conflict with the express language of the lease, promulgated more than a year after execution of the lease, can be, and was intended to be, an implied covenant which might be made the subject of a forfeiture.

The courts cannot make contracts for parties, and can declare implied covenants to exist only when there is a satisfactory basis in the express contracts of the parties which makes it necessary to imply certain duties and obligations in order to effect the purposes of the parties in the contract made. Before we will imply a covenant in the express terms of this lease, it must appear therefrom that it was so clearly in the contemplation of the parties, that the hours of closing could be changed by the lessor, that the parties deemed it unnecessary to express it, or that it is necessary to imply such covenant in order to give effect to and effectuate the purpose of the lease, as a whole. Adkins v. Adams (CCA 7th Cir 1945) 152 F2d 489. In a retail business the hours of closing can have a material bearing on the cost of doing business, particularly when such hours extend beyond the normal working day; the problems of services of labor forces that are members of unions was recognized by lessor in the rules promulgated on May 1, 1962, by the exception provided therein. It is to be noted too, that although the lessee agreed to abide by rules for the betterment of the shopping center, that such provision, although in the same sentence as the expressly provided hours of closing, is couched in general language and does not expressly reserve to either the Association of Tenants or Lessor the right to change the hours of closing.

Leases are to be most strongly construed against lessors, and forfeitures and provisions such as are found in paragraph 28 are not favored in the law, Earpe v. Schmitz, 334 Ill App 382, 179 NE2d 637. If it were intended, under rules of strict construction that the violation of a rule promulgated by lessor would give rise to a forfeiture, that paragraph should have also contained the power of forfeiture for the breach of any rule promulgated by lessor. Instead, it provides for forfeiture on default on the part of lessee “in the performance or observance of any of the covenants or conditions of this lease.” The word “this” refers specifically to the lease. People v. National Box Co., 248 Ill 141, 93 NE 778. Here there is a clear lack of expression that promulgated rules, if any, would be and become a part of the lease as covenants and conditions which could become the subject matter for a declaration of forfeiture.

Under the circumstances here present, there cannot exist an implied covenant between the same parties, in conflict with the express provisions of the lease.

The defendants being deprived of the premises by the lessor, the further obligation of rent ceased, because such obligation had force only from the consideration of the enjoyment of the premises. Auto Supply Co. v. Scene-in-Action Corp., 340 Ill 196, 172 NE 35.

The defendants have offered no evidence of damages on their counterclaim, and the judgment of the trial court against the defendants on their counterclaim should be affirmed.

The judgment of the circuit court of St. Clair County rendered for plaintiff against defendant in the amount of 812,746.74 is- reversed and the judgment for plaintiff against defendants on the counterclaim is affirmed.

Affirmed in part and reversed in part.

GOLDENHERSH and MORAN, JJ., concur.