text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Evelyn Simpson, Defendant-Appellant.
    Gen. No. 50,439.
    First District, First Division.
    November 9, 1966.

      Philip M. Basvic, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Thomas M. Burnham, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Evelyn Simpson, was indicted for murder and voluntary manslaughter. On motion of defense counsel a preliminary sanity hearing was ordered which resulted in a jury finding the defendant competent. At the subsequent jury trial the defendant was convicted of voluntary manslaughter and was sentenced to serve eight to twelve years in the Women’s Reformatory.

It is contended by the defendant that (1) the trial court erred in denying her petition to suppress her statement to the police; (2) that the State failed to prove the corpus delicti in its case in chief; (3) that the prosecutor’s personal attack on the defendant’s attorney prevented her from having a fair and impartial trial; (4) that the trial court erred in excluding knowledge of the defendant of the victim’s reputation for violence when intoxicated; (5) that the prosecutor’s attack on defendant in his summation to the jury prevented the defendant from receiving a fair and impartial trial; (6) that the trial court erred in allowing State’s Instruction No. 17; (7) that the defendant was not found guilty beyond a reasonable doubt and (8) that the sentence is excessive.

The defendant first contends that her statement made to the police should have been suppressed as it was not given voluntarily. The record reveals that after the jury found the defendant competent to go on trial the defendant made a motion to suppress her confession and a pretrial hearing took place before the trial judge. The defendant argues that her motion to suppress should have been sustained on the grounds that her emotional background and the circumstances prior to and surrounding the making of her statement rendered it involuntary. The basic inquiry is whether the confession was voluntary. “The determination of this question depends not upon any one factor, but upon the totality of all the relevant circumstances.” People v. Nemke, 23 Ill2d 591, 600, 179 NE2d 825. In support of her motion the defendant testified that she was arrested on November 4, 1963, and later in the evening she was placed alone in a room at the police station which had but one chair and no running water or toilet. She asked a police officer (who was typing ten feet from her) on several occasions, either to go to the bathroom, for a cigarette, a glass of water or coffee and was told each time, “Just a moment.” She said she didn’t know what time she was placed in the cell and that she decided to give a statement because she was so tired, sleepy and hungry. She said that a man, indicating Robert Kenny, (an Assistant State’s Attorney) told her “Do you want to write on this paper? And then you can go up and go to sleep.” Then she gave the instant statement.

Detective Henry Kaminski testified that the defendant was taken to the police station about 8 p. m. and placed in a detention room which had a couple of long benches and wooden chairs. About 3:00 a. m. the defendant told him “Her mother was turning over in her grave and that she wanted to tell me everything.” He said he didn’t recall the defendant making the alleged requests, but they would have complied if she did. Robert Kenny, an Assistant State’s Attorney, and a court reporter who was present, testified that when the defendant made her statement she did not complain of hunger or lack of sleep or that she was denied toilet facilities. Kenny denied telling her that “The quicker you tell me about it, the quicker you will get some sleep.”

The trial judge concluded that he found no evidence of psychological torture as means of inducing the taking of the statement as alleged and denied the motion to suppress. The defendant relies on People v. Price, 24 Ill2d 46, 179 NE2d 685, and Reck v. Pate, 367 US 433. These cases are clearly distinguishable. In each, the accused was subjected both day and night to intensive interrogation sessions while being illegally held for a period of days. Nor did the defendant in the instant case suffer the physical discomforts described in the cited cases. In our opinion the record does not disclose an abuse of discretion by the trial judge in concluding that the statement was made voluntarily.

The defendant next complains that the State rested its case without having established the corpus delicti of the crime and that it was an abuse of discretion for the court to permit the State to reopen its case and introduce in evidence the protocol and pathological report. The record shows that after the State rested its case in chief and during the time the defendant was offering witnesses on his behalf, the State asked leave to reopen its case to present a stipulation as to the testimony of the pathologist. It is clear from the record that the prosecutor forgot to offer this stipulated evidence in the proper order. The defendant’s counsel admitted that he entered into such a stipulation with the prosecutor as to the pathologist’s report, but he objected to the report being received in evidence because the offer came after the State had rested its case and was therefore too late.

“It is in the sound discretion of the trial court whether a case may be opened up for further evidence, and this discretion will not be interfered with except where it is clearly abused.” People v. Franceschini, 20 Ill2d 126, 169 NE2d 244. In that case the trial judge suggested to the prosecutor, after both sides had rested, that evidence be offered to show how entrance to the apartment was gained. The Supreme Court in rejecting the claim that this was an abuse of discretion to defendant’s prejudice, said that there is no inflexible rule in matters of this kind and that “as a general proposition, it is never improper for a judge to aid in bringing out the truth in a fair and impartial manner.” P 132. It was apparent to the trial judge in the instant case that the parties had stipulated to the report of the pathologist being entered into evidence and that it was merely an oversight on the part of the prosecutor in not offering the report in the proper order. In our opinion this manner of procedure did not injure the defendant nor prejudice his defense.

The defendant further contends that the prosecutor’s attack on her attorney during closing argument prejudiced the jury and prevented her from having a fair and impartial trial. After having carefully reviewed the record, it appears to us that improper remarks made by the defendant’s counsel in his argument provoked improper replies. The court upon objection properly told the jury to disregard the statement made by the prosecutor. We think that any prejudice that might have resulted to the defendant was removed by the timely ruling of the court and by the instructions to the jury.

The defendant also contends that where self-defense is alleged it was error to exclude defendant’s knowledge of the victim’s reputation for violence while intoxicated. We agree with the defendant that where self-defense is alleged, and where it is claimed that the deceased victim was the aggressor and the assailant, the defendant has the right to prove that the deceased was known to her to be a violent and dangerous man. People v. Davis, 29 Ill2d 127, 193 NE2d 841. On this issue the record reveals that when the defendant was asked if the deceased was drunk at the time she stabbed him, she answered, “He had to be drunk because I never heard him curse until he got drunk.” The excluded testimony of defendant that was offered concerned one isolated instance which occurred two months before the killing when the deceased, while intoxicated, was involved in a fight with a man and that the defendant knew of that occurrence. The court sustained the objection to this testimony, and no other evidence was offered to show the reputation of the deceased for being a violent and dangerous man. This testimony, in our opinion, was properly excluded as it related only to one specific act by the deceased and is not the proper method for proving the victim’s character, or to qualify the defendant to give reputation testimony. In People v. Moretti, 6 Ill2d 494, 523, 129 NE2d 709, the Supreme Court stated that:

This court, on numerous occasions, has held that reputation witnesses must be shown to have adequate knowledge of the person queried about and that evidence of reputation, to be admissible, must be based upon contact with the subject’s neighbors and associates rather than on the personal opinion of the witness.

The defendant also complains that the prosecutor attacked her reputation in his summation to the jury intending purely to inflame and prejudice the jury against the defendant. We have examined the record and conclude that the prosecutor relied on evidence and inferences from contradictory testimony given by defendant to support his argument. It is also clear that the remarks were not a material factor in defendant’s conviction.

It is next contended that the instruction given to define voluntary manslaughter was objectionable because it recites the 1947 statute instead of the 1961 statute and that it was error to give this instruction in any event where the plea was self-defense. No other instructions are abstracted as required under Supreme Court Rule 38. Ill Rev Stats 1963, ch 110, § 101.38. In People v. Robinson, 27 Ill2d 289, 292, 189 NE2d 243, the Supreme Court said:

We have consistently held where the abstract of record includes only the instruction complained of without regard to the other instructions, both given and refused. ... We will not inquire whether the trial court erred in this respect.

Nevertheless, we have examined the instruction complained of, and are of the opinion that the plea of self-defense did not render the instruction improper nor was the giving of the instruction prejudicial. The State points out that five instructions offered by the defendant were given to the jury which repeatedly pointed out that self-defense is a lawful justification for homicide. Had the defendant been convicted of murder, rather than manslaughter, the defendant could have been prejudiced by the instruction as given.

The defendant further contends that there is a reasonable doubt concerning the guilt of the defendant of the voluntary manslaughter charge. The Criminal Code of 1961 provides that a person who kills an individual without lawful justification commits voluntary manslaughter if, at the time of the killing, he is acting under a sudden and intense passion resulting from serious provocation by the individual killed. Ill Rev Stats 1961, ch 38, § 9-2. “The killing must be the result of that sudden, violent impulse of passion supposed to be irresistible.” People v. Smith, 404 Ill 350, 355, 88 NE2d 834. It is argued here that “there is no evidence in this case of such sudden impulse with precluded deliberation.” In view of this contention it is necessary to review the evidence.

The record discloses that the defendant was living in a common-law relationship with Joseph Holmes in a two-room apartment on the same floor as that occupied by Thomas Perry and Mildred Mackey. They used a community kitchen. An argument occurred between the defendant and Mildred Mackey, in the latter’s apartment when Mildred refused to clean the kitchen stove. Both girls had been drinking and in a scuffle Mildred hit the defendant with a baseball bat and when the defendant was getting the best of the fight Mildred yelled to Thomas Perry, who was not in the room, for help. At the trial the defendant testified that she then ran to the door in a dazed condition when a man she said was Thomas Perry grabbed her by the hair and said, “I am going to break your neck. Turn loose that bat and I am going to break your neck.” She said she wrestled free from his grip and got into her room which was about six feet away and ran into her kitchen and grabbed a knife. She said she heard Mildred run down the stairs and then Perry said, “Did she come in here? I am going to kill you. Did she come in here ?” and she told him, “Please don’t come in my house, please God, don’t come in my house.” And he said. “I am coming in your house and find where Millie is.” And she said “Don’t cross my door, please God, don’t cross my door. And I remember his foot crossed that door. ... I reached up and stabbed him.”

In her written statement, in which she made narrative answers, she was asked:

Q. And you got your knife out of your cabinet where your dishes are and when you hit him with the knife, where was he in the apartment ?

A. When I hit him ? When I run back to him ? He was standing naked in the living room, the pink one right by my two rooms.

When asked whether Perry had anything in his hand at the time she answered, “He was naked. He came out of the tub.” When the police arrested her she told them that Mildred Mackey (who was deceased at the time of the trial) stabbed Perry. The jury could have found from the evidence that the defendant under a sudden and intense passion ran back into Perry’s apartment with a large butcher knife and stabbed him. We think there was sufficient evidence to justify the jury in finding the defendant guilty of voluntary manslaughter.

The defendant also claims that “the sentence was excessive considering that the accused was 47 years old, had no other felony convictions, and was twice committed to a mental institution.” The defendant was sentenced by the court, (who held a presentence hearing in aggravation and mitigation and who also saw and heard the witnesses), to serve a prison term of not less than eight nor more than twelve years which is within the limits fixed by the statute. We find no basis for disturbing the sentence.

The judgment of the Criminal Court is affirmed.

Judgment affirmed.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE MURPHY

license: Public Domain

text:
    Lucille Malone and Betty Brown, Plaintiffs-Appellants, v. Chicago Transit Authority, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 50,458.
    First District, First Division.
    November 9, 1966.

      H. P. Hutul, of Chicago, for appellants.
    William J. Lynch, O. R. Hamlink and Jerome F. Dixon and Michael A. Gerrard, of Chicago, for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a personal injury action. Plaintiff Lucille Malone appeals from an order which dismissed her action on the ground that it was released. Plaintiff Betty Brown appeals from a directed verdict entered at the close of all the evidence.

Plaintiffs Malone and Brown are sisters. On November 8, 1956, at about 12:30 p. m., plaintiffs boarded a northwestbound Chicago Transit Authority (CTA) bus on Milwaukee Avenue at Wood Street. Lucille entered first and paid her fare. As Betty was about to deposit her fare, she noticed a car making a turn into the middle of the street. She called to the bus driver, “ ‘Do you see that car?’ . . . The bus driver slammed on his brakes and I fell backwards. My back and neck struck the bus. I do not know how fast the bus had been going. The bus did not come in contact with the other vehicle.” She had pains and aches in her back, head and neck. Lucille fell back against the fare box and ended up lying on the floor with her head down. The driver asked if anyone was hurt, and both plaintiffs answered “yes.” However, neither names nor statements were taken — “he did not do anything.” Both Lucille Malone and Betty Brown, after riding a short distance, got off the bus and called a cab.

Plaintiff Brown missed three weeks’ work and visited her doctor about five times. As the doctor was unable to testify on two occasions (“emergency surgery”), the court declared plaintiff Brown’s case closed without any medical testimony. At the time of the trial she still had pain in her lower back.

As to plaintiff Malone, the court dismissed her action on the ground that it had been released by operation of a general release executed by her, which was based on a later occurrence, December 25, 1961. Therefore, no evidence of her injuries was introduced.

On behalf of defendant, the evidence deposition of Isadore Romano was read into evidence. He stated that on November 8, 1956, he was working on Milwaukee Avenue on bus No. 5183. The bus left Devon and Milwaukee at 12:32 “to get Downtown to the Loop.” He estimated, “I would be at Wood Street at about 1:20, going eastbound. No accident occurred where two women fell in the front of my bus that day.” On cross-examination he stated that no report was made of any sudden or emergency stop, and that “the procedure is to take names if someone is hurt. I didn’t make a report.”

An accident investigator for the CTA testified that he interviewed Betty Brown on February 19, 1957. On cross-examination he stated that the two plaintiffs were together when he obtained the statement, and that “the date of the accident that I have on this case is November 8, 1957, and the bus, car or train number that was involved in this occurrence is number 1396. The words on this statement are the words that Mrs. Brown used. . . . She said an auto going east on Milwaukee Avenue made a sudden turn in front of the bus and the bus driver made a sudden stop to avoid the auto. She did not say anything else that is not included in this description of accident. The claimant supplied the information on the bus number and the date, time, and place of the accident.”

Initially, we consider the contention of plaintiff Brown that the court erred in directing a verdict as to her action. “Upon motion for a directed verdict for defendant, it is the duty of the trial court to determine whether there was any evidence, together with all reasonable inferences therefrom, tending to support the material allegations of the complaint. In the absence of such evidence, the trial court should grant the motion.” (Watts v. Bacon & Van Buskirk Glass Co., 18 Ill2d 226, 229, 230, 163 NE2d 425 (1959).) Therefore, the issue presented is whether plaintiff Brown adduced any evidence fairly tending to establish the negligence of the defendant CTA.

The testimony of both plaintiffs does not disclose any fact giving rise to a reasonable inference that defendant was guilty of any negligence. At most, their testimony shows that they were standing in a crowded bus when an automobile “made a turn in the middle of the street” while the bus driver “was looking in the front,” and the bus driver “slammed on his brakes.” The bus made no contact with the other vehicle, and there is no testimony as to the speed of the bus. This, standing alone, does not make a prima facie case against a carrier. (Chicago Union Traction Co. v. Browdy, 206 Ill 615, 617-619, 69 NE 570 (1904); Chicago City Ry. Co. v. Rood, 163 Ill 477, 483, 45 NE 238 (1896).) There is no testimony from which it can be reasonably inferred that the driver failed to exercise due care. “The mere fact that an accident resulting in an injury to a person or in damage to property has occurred does not authorize a presumption or inference that the defendant was negligent.” (Rotche v. Buick Motor Co., 358 Ill 507, 516, 193 NE 529 (1934).) We find no error in directing a verdict for defendant in this case.

We examine next the contention of plaintiff Malone that the trial court “erred in dismissing her action as having been released by the release of December 27, 1961.” This is not a live issue because of our finding that no error was committed by the trial court in directing a verdict for defendant as to the basic action, on which the claims of both plaintiffs rested and on which both plaintiffs testified. Any questions concerning the release come within the general rule that “when a reviewing court has notice of facts which show that only moot questions or mere abstract propositions are involved or where the substantial questions involved in the trial court no longer exist, it will dismiss the appeal or writ of error.” People v. Redlich, 402 Ill 270, 279, 83 NE2d 736 (1949).

For the reasons given, the judgment of the trial court as to both plaintiffs is affirmed.

Affirmed.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


text:
    Chicago Division of the Illinois Education Association, an Illinois Not-For-Profit Corporation, a/k/a Chicago Education Association, Plaintiff-Appellant, and James D. Broman, Individually as a Taxpayer and in Behalf of All Other Taxpayers Similarly Situated, Intervenor-Plaintiff-Appellant, v. Board of Education of The City of Chicago, Defendant-Appellee, and John M. Fewkes, et al., as Officers of the Chicago Teachers Union, Intervenor-Defendants-Appellees.
    Gen. No. 51,378.
    First District, First Division.
    November 9, 1966.
    Goldberg, Weigle, Mallin & Rivkin, of Chicago (Irving H. Goldberg, David Parson, Theodore P. Fields, John Hudson and Darryl M. Fohrman, of counsel), for plaintiff-appellant.
    Frank F. Fowle, Edward B. Miller, Roy S. Kullby and Patrick Hardin, of Chicago (Pope, Ballard, Uriell, Kennedy, Shepard & Fowle, of counsel), for intervenor-plaintiff-appellant.
    Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (Thomas F. Scully, of counsel), for defendant-appellee.
    Ligtenberg, Goebel & De Jong, of Chicago (John Ligtenberg and Andrew Leahy, of counsel), for intervenor-defendants-appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Plaintiff and intervenor-plaintiff appeal from an “Opinion and Decree,” which dismissed their separate complaints, after making ■ findings and declarations of law, the effect of which was to approve collective bargaining by the Board of Education of the City of Chicago with a sole collective bargaining agency to be selected by its teachers.

The plaintiff (Chicago Division), an Illinois not-for-profit corporation, is an association of school teachers and other educational personnel organized for the purpose of representing its members and other teachers and educational personnel who desire it to present grievances to, and negotiate with, the defendant Board of Education of the City of Chicago (Board), regarding working conditions, welfare and professional responsibilities. The intervenor-plaintiff is James D. Broman, a citizen and taxpayer of the City of Chicago.

The intervenor-defendant, the Chicago Teachers Union (CTU), is an unincorporated association in the nature of a labor union or labor organization. Its members, also, are teachers and educational personnel employed by the defendant Board of Education. It is alleged that CTU has “about 12,000 members who are active classroom teachers in the schools of Chicago.”

Since 1964, the Board has recognized the Chicago Division, the CTU and the Chicago Principals Club as collective bargaining agents for their teacher members and other educational personnel who desired one of these organizations to speak for them. With the Board’s approval, a “Memorandum of Understanding,” which prescribed procedures for the resolution of professional problems and grievances, was entered into with each organization by the General Superintendent of Schools.

In a verified two-count complaint filed October 5, 1965, plaintiff sought (1) both a declaratory judgment to have its “Memorandum of Understanding” (contract) with the defendant Board, dated March 11, 1964, and effective November 12, 1964, determined to be a valid and subsisting contract, in force and effect at least until November 12, 1966, and to restrain the Board “from proceeding with the preparation for and the conducting of the election among its employees, school teachers and educational personnel to determine what organization they wish to have represent them as their sole bargaining agent until a hearing and determination of this cause be had by this Court”; and (2) relief against the “Board’s adoption of Resolutions 73408 and 73409 in September, 1965,” which resolutions plaintiff claimed breached its contract; and relief against the Board’s discrimination reflected by the Board’s activities leading up to the adoption of the resolutions and its continued demonstrated prejudicial action thereafter against plaintiff and in favor of Chicago Teachers Union.

The intervenor-plaintiff, James D. Broman, filed a complaint in which he alleged that “as a result of threats and intimidation by the intervenor-defendant, the Chicago Teachers Union, unlawfully to disrupt the operation of the school system by causing an illegal strike of its members, and in unlawful agreement with the Chicago Teachers Union, the Board of Education has engaged in and embarked upon a course of conduct which has required and will require that the Board perform acts not authorized by The School Code or by any other statute of the State of Illinois, and which acts are and will be contrary to the laws and public policy of the State of Illinois and which constitute an abdication and illegal sharing and delegation of their duties as public officials . . . .” Injunctive relief was sought, temporary and permanent, restraining the Board from recognizing CTU, or any organization, as the sole bargaining agent or as a collective bargaining agent for its employees “upon any question upon which power of decision has been entrusted to the said Board of Education by the Illinois State Legislature.” Other relief sought included restraint of the Board from “authorizing or holding a referendum or any other kind of election for the purpose of selecting a sole bargaining agent.”

Defendant Board and intervenor-defendant CTU filed motions to strike and dismiss the complaints of the Chicago Division and of Broman.

On February 23, 1966, the trial court, after considering the pleadings, affidavits and exhibits, and the briefs filed by all parties, and having heard the arguments of counsel, entered an “Opinion and Decree,” which included findings and declarations of law, allowed the motions to strike and dismiss both complaints, and dismissed the cause subject to expressed “limitations.”

The findings included:

“2. The Memorandum of Understanding entered into between Chicago Division of the Illinois Education Association and the General Superintendent of Schools and adopted by the Board of Education of the City of Chicago November 12, 1964 is a valid agreement, subsisting until terminated by either of the parties thereto, or by the Board of Education of the City of Chicago, after notice given the other party prior to October 1 of any year that it will be modified or terminated November 12 of that year.”
“4. Board Resolution No. 73409 of September 23, 1965 authorizes the teachers employed by the Board of Education of the City of Chicago to hold a referendum election at which they may select a sole collective bargaining agent concerning wages, working conditions, fringe benefits, and other professional problems; and provides that regardless of the outcome of the election any teacher may join any employee organization of his own choosing and that persons not members of the organization selected at the election have the right to present grievances and submit suggestions to the Board as individuals.”

The order included:

“2. Board Resolution No. 73408, insofar as it provides:
“ ‘. . . that the Board of Education agrees to incorporate in the collective bargaining agreement a provision that on any and all matters which are proper subjects of collective bargaining, which are brought to the attention of the Board of Education or school administration by any individual or organization, the Union shall be informed, and any action or decision on the matter shall be made only after negotiation with the Union/
is without force or effect.
“3. Board Resolution No. 73409 is lawful and is not a delegation, dilution, or sharing of powers delegated to the Board of Education of the City of Chicago by the General Assembly; however, that Resolution may not be effectuated until notice of intent to terminate the existing Memoranda of Understanding has been given by the Board of Education to the other parties thereto.
“4. Any collective bargaining agreement which the Board of Education of the City of Chicago may enter into with an agency representing its teachers or other educational personnel, whether or not with a sole collective bargaining agency selected by its teachers, shall contain specific provisions whereby the employee organization shall agree not to strike, not to picket in any manner which would tend to disrupt the operation of any public school in the City of Chicago or of the administrative offices of the Board of Education of the City of Chicago, that the benefit of any and all decisions and conclusions the Board of Education may reach after having negotiated with the employee organization selected shall apply equally to all teachers and other educational personnel employed by the Board of Education; and that, should negotiations fail to resolve differences, the decision of the Board of Education shall be final.
“5. Subject to the limitations hereinabove expressed, the motions to strike the complaint as amended of Chicago Division of the Illinois Education Association and the complaint of James D. Broman are allowed, and the complaint as amended of Chicago Division of the Illinois Education Association and the complaint of James D. Broman are hereby stricken and the cause dismissed.”

The plaintiff and intervenor-plaintiff Broman both appealed from the decree and filed separate briefs asserting different grounds to show that the lower court was in error in entering the decree and in not issuing restraining orders.

The record of proceedings in this court shows that subsequent to the entry of the decree and on March 25, 1966, the Board gave written notice of intent to terminate the “Memoranda of Understanding” of both plaintiff and the Chicago Teachers Union and authorized a referendum election to be held on May 27, 1966. Thereafter, this court denied plaintiff’s motion for a temporary restraining order enjoining the holding of the election.

Initially, we consider whether the trial court was correct in striking Broman’s complaint. This raises the basic question of whether the Board may bargain collectively with an exclusive employee representative. Bro-man contends:

(1) “The central question raised in this Court is whether the Board of Education of the City of Chicago has authority to engage in collective bargaining, and to enter into a collective bargaining agreement, with an exclusive representative of its employees. It is not disputed that the power to do so has not been expressly conferred on the Board by the legislature. Both defendants have argued, rather, that the authority to engage in such bargaining, and to conclude a contract, may be implied from general legislation empowering the Board to contract and to do all things ‘necessary or proper’ for the operation of the schools. Neither defendant has argued that the authority to bargain collectively is necessary to the operation of the schools. Instead, both have argued that collective bargaining is a proper function of the Board, and may be engaged in by the Board at its discretion.”

(2) “The courts of this state — like those in a majority of other jurisdictions — should leave to the legislature the many policy questions presented by the question of whether, and under what restrictions and conditions, the institution of collective bargaining should be imported into the public sector.”

The authorities cited by Broman include International Brotherhood v. Grand River Dam Authority (Okla), 292 P2d 1018 (1956) which, Broman asserts, stands for the proposition “that public employees have no common law right of collective bargaining, and that even a statute giving a public agency authority to contract does not, inferentially, create in public employees the right to bargain collectively.” City of Jackson v. McLeod, 199 Miss 161, 24 So2d 819 (1946), which was a suit by a policeman who had been discharged because of his membership in a labor union. There the court upheld the Civil Service Commission in its finding that union membership was incompatible with a policeman’s duty to the community. Levasseur v. Wheeldon, 79 SD 442, 112 NW2d 894 (1962), cited for the rule that “absent statute public employees have no right to engage in collective bargaining.” Philadelphia Teachers’ Ass’n v. Labrum, 415 Pa 212, 203 A2d 34 (1964) cited to suggest that “Pennsylvania law does not uphold collective bargaining between public employees and public employers.” Mug-ford v. Mayor and City Council of Baltimore, 185 Md 266, 44 A2d 745 (1946), where “the precise question of a municipality’s authority to bargain collectively with its employees was decided negatively by the trial court and not appealed.” International Union of Operating Engineers, Local Union No. 321 v. Water Works Board of City of Birmingham, 276 Ala 462, 163 So2d 619 (1964), which followed “the strongest current of opinion from the highest courts of states where the question has been presented . . . that a public agency has no authority to bargain or contract with a labor union in the absence of express statutory authority.” International Longshoremen’s Ass’n, AFL-CIO v. Georgia Ports Authority, 217 Ga 712, 124 SE2d 733 (1962), which holds that picketing by public employees for bargaining rights is enjoinable because it contravenes the public policy denying public employers the authority to bargain. Wichita Public Schools Employees Union, Local 513 v. Smith, 194 Kan 2, 397 P2d 357 (1964), “where the court held that the state’s general legislation conferring collective bargaining rights did not extend to governmental employees.” Delaware River & Bay Authority v. International Organization, 45 NJ 138, 211 A2d 789 (1965), where, “in appealing an order enjoining it from picketing or striking, a union of Bay Authority employees argued that the constituent compacts’ general conferral of power to contract empowered the Authority to enter into collective bargaining contracts. The court rejected that argument on grounds that the power to enter collective bargaining contracts would be contrary to established state policy. The court ruled . . . that a change in that policy required action by the legislature.”

From these authorities, Broman argues that since 1958 the courts of nine states have reiterated the basic principle contended for by taxpayer Broman — that public employees have no right to bargain collectively unless and until the legislature has conferred that right and defined the manner of its exercise. As evidence of an Illinois policy against collective bargaining by public employees, Broman points out that “the legislature has ten times refused general authorization for public collective bargaining but has, during the same period, authorized collective bargaining for two specified public agencies.” Broman argues that the Illinois Supreme Court in Board of Education of Community Unit School Dist. No. 2 v. Redding, 32 Ill2d 567, 207 NE2d 427 (1965), recognized and explicitly relied upon the fundamental distinction between public and private employment in ruling that public employees could not engage in concerted refusals to work or disruptive picketing. He asserts that neither the Illinois Labor Peace Act, Ill Rev Stats, c 10, §§20-30, nor the Illinois Anti-Injunction Act, Ill Rev Stats, c 48, § 2a, are applicable to public employment. These manifestations of public policy, he concludes, evidence both legislative and judicial intent not to authorize or permit collective bargaining in public employment.

The Board contends that specific legislation is unnecessary, and that existing general legislation is more than sufficient to authorize exclusive collective bargaining by the Board, and that the collective bargaining agreement authorized by the decree preserves the Board’s statutory authority and that its provisions are mandatory. It argues that Broman’s authorities are not relevant, and that “few of these foreign authorities considered any specific collective bargaining agreement, not to say one containing provisions similar to those required to be included in any collective bargaining agreement the Board may enter.”

The Board asserts that “a review of the activity of state and the federal legislatures can be argued to demonstrate that legislation is needed to prevent collective bargaining by governmental agencies, not to authorize it,” and that existing Illinois legislation authorizes collective bargaining by the Board. Ill Rev Stats 1965, c 102, § 35.2, and c 48, § 852. The Board claims that the power of the Board here questioned “exists independently of specific statutory provisions and is legislatively recognized by the cited Acts.” It agrees that Article 34 of the School Code, which governs school boards, does not specifically authorize the Board to engage in collective bargaining, but neither does it “provide otherwise.”

As to the general rule set forth in 31 ALR2d 1142, 1170:

“Public employers cannot abdicate or bargain away their continuing legislative discretion and are therefore not authorized to enter into collective bargaining agreements with public employee labor unions,”

the Board states that “the decree at bar prohibits the Board from entering into any collective bargaining agreement under which it would ‘abdicate or bargain away its continuing legislative discretion’. Such a collective bargaining agreement cuts the ground from under the general rule as stated in American Law Reports. The reason for the rule being absent, there is no reason for it here.” The Board further agrees that it cannot delegate authority conferred on it by the legislature, nor delegate its discretionary powers in any collective bargaining agreement (Stroh v. Casner, 201 Ill App 281 (1916)), but claims that Broman’s assertion that “collective bargaining necessarily grants to the collective bargaining agent a role in the decision-making process of the Board which was neither created nor approved by the legislature,” ignores the provisions of the instant decree. The Board points out that under the decree it must maintain “sole responsibility for effecting the statutory duties delegated to it,” and that the decree “prohibits the Board’s entry into any collective bargaining agreement which could result in any delegation of its statutory powers or duties.” The Board contends that the decree is in accord with the Illinois Supreme Court opinion in Board of Education of Community Unit School Dist. No. 2 v. Redding, 32 Ill2d 567, 207 NE2d 427 (1965) and that Redding does not speak of the legality of collective bargaining by public school employees. Rather, it holds only that such employees cannot strike or otherwise engage in conduct deleterious to the efficient operation of the schools. In the Redding case, where the court enjoined both the strike and picketing of schools, it is said (p 571):

“And while there is some effort to divert us to a determination of whether public school employees may lawfully organize into unions at all, (see: People ex rel. Fursman v. City of Chicago, 278 Ill 318,) that issue was not raised or passed upon below. Rather, the scope of our review is limited to a consideration of whether such employees may strike against their school board employer, and whether they may picket to support their strike.
“Although this is a case of first impression in a reviewing court of this jurisdiction, it is, so far as we can ascertain, the universal view that there is no inherent right in municipal employees to strike against their governmental employer, whether Federal, State, or a political subdivision thereof, and that a strike of municipal employees for any purpose is illegal.”

And at p 572:

“Our own constitution impresses the General Assembly with the duty to ‘provide a thorough and efficient system of free schools,’ (const of 1870, art VIII, sec 1), and we believe it logically follows that those who, under the implementing statutes, become the agents to fulfill the will of the people in such respect are themselves charged with a duty to refrain from conduct which will render our schools less efficient and thorough. The drastic remedy of organized strikes against employing school boards is in direct contravention of such duty.”

The Board, in support of the decree and its provisions, asserts that it “accords with the pronouncements of all relevant precedent in or out of this State,” and that “the collective bargaining agreement held lawful by the chancellor cannot conceivably serve as a vehicle for delegating legislative power.” The Board argues that the “propriety and mandatory nature of the entire Decree is established by judicial pronouncement . . . :

“ ‘The rules of courts of chancery in granting relief are flexible, such court not being bound by formulas or restrained by any limitation which tends to trammel the free exercise of discretion. When all the parties are before the court, the whole case may be considered, all interests protected, and a complete decree made which will be binding on all parties who have a substantial beneficial interest in the litigation.’ 7 ILP 582; DuPage County v. Henderson, 402 Ill 179; McMechan v. Yenter, 301 Ill 508,”

and that a decree of a court of equity must be reasonably construed, and must be interpreted as an entirety. Neidhardt v. Frank, 325 Ill 596, 156 NE 769 (1927).

On the issue of collective bargaining in public employment, the intervenor-defendant, CTU, contends that “employees, including those employed by government, have a right to organize for the purpose of collective bargaining under the First and Fourteenth Amendments to the United States Constitution,” and that the right of employees to organize has been treated in several U. S. Supreme Court cases as protected by the Constitution. Lincoln Union v. Northwestern Co., 335 US 525 (1949); Communications Ass’n v. Douds, 339 US 382 (1950).

Other authorities relied on include City of Springfield v. Clouse, 356 Mo 1239, 206 SW2d 539, 542 (1947), where it is said:

“All citizens have the right, preserved by the First Amendment to the United States Constitution ... to peaceably assemble and organize for any proper purpose . . . .”

International Union, United Automobile Workers v. Wisconsin Employment Relations Board, 336 US 245 (1949), where it is said (p 259) :

“The right to strike, because of its more serious impact upon the public interest, is more vulnerable to regulation than the right to organize and select representatives for lawful purposes of collective bargaining which this Court has characterized as a ‘fundamental right’ . . . .”

Labor Board v. Jones & Laughlin, 301 US 1 (1937), where the Supreme Court upheld the validity of the National Labor Relations Act and pointed out that the Act was designed to “protect” the right to organize and the right to organize included the right to organize for the purpose of collective bargaining, which right existed separate from the Act.

The CTU, in asserting that the right of employees to organize for collective bargaining is a right also enjoyed by public employees, states, “employment by government does present the occasion for limitation of rights, but until government actually attempts to limit rights they remain unfettered,” Wieman v. Updegraff, 344 US 183 (1952); United Public Workers v. Mitchell, 330 US 75 (1947), and “while Taxpayer Broman seemingly assumes that by entering public service employees thereby cede all their rights and have only those which the government gives, the exact opposite is true. Thus public employees in Illinois maintain their right to organize for the purpose of collective bargaining, at least until that right is legitimately limited,” and “the proper question then is whether the instant Board of Education is under some legal inhibition.”

In contending that Illinois belongs among those states which approve collective bargaining in public employment, the CTU admits there is a genuine split on this issue existing in this country, and that the list of fourteen states submitted by Broman appears to be formidable, but argues, “it loses much of its impressiveness when subjected to analysis,” and that the “jurisdictions he can reliably cite are only Alabama, Colorado, Georgia, Kansas, Missouri, New Jersey and Tennessee.”

As additional authority, the CTU states that “New York City and 86 unions representing the various employees of the city established a Memorandum of Understanding dated March 31, 1966, which includes the following provisions:

“ ‘Collective bargaining is the most effective means in our society for matching employer requirements with employee needs. A healthy bargaining relationship provides the maximum promise that labor-management disputes will be resolved by peaceful measures, to the great advantage of the disputants and, in the case of public employment, to the even more important advantage of the public ....
“ ‘It is the policy of the City of New York to engage in collective bargaining and enter into written agreements with employee organizations
“But the City of New York is not alone. The Board of Education in that city has an exclusive bargaining agreement with the United Federation of Teachers which represents some 44,000 teachers. . . . New York, Pennsylvania and Connecticut are but three among many jurisdictions, where local governmental bodies have adopted policies favoring collective bargaining.”

The CTU notes that “The American Federation of Teachers, of which the Chicago Teachers Union is a local, represents teachers in Philadelphia, New York, Detroit, Cleveland and numerous smaller cities and communities. Illinois locals currently have written exclusive collective bargaining agreements in Cicero, Maywood, and Proviso school districts. Proviso and East St. Louis were among the very first school boards in the United States authorizing collective bargaining elections. Within the last several months, school boards in Kankakee, Calumet City and Stickney Township have adopted pro collective bargaining policies. . . . Alaska, California, Connecticut, Delaware, Massachusetts, Michigan, Minnesota, New Hampshire, Oregon, Rhode Island, Washington and Wisconsin have by legislative pronouncement demonstrated that collective bargaining is within sound good public policy.”

As to whether the Board of Education of the City of Chicago may in its discretion engage in collective bargaining, the CTU observes, “There appears to be no disagreement over the fact defendant Board of Education has the power to employ 20,000 teachers. The central issue of this case lies in disagreement over the means used to determine the contract terms of those 20,000 employees. It is submitted that the board is the best judge of the most efficient method of arriving at those terms; this court is without authority to deny the board’s exercise of discretion in choosing the method unless the choice is manifestly unreasonable.”

On the exercise of discretion by the Board, the CTU analyzes the various Illinois authorities relied upon by Broman, such as Lindblad v. Board of Education, 221 Ill 261, 77 NE 450 (1906), and Stroh v. Casner, 201 Ill App 281, and asserts that they are not in point.

The CTU argues that the Illinois courts have approved broad discretion in school board contractual relationships which have genuine bargaining as their basis, and cites Wilson v. Board of Education of Chicago, 233 Ill 464, 84 NE 697 (1908), where it is said (p 475) :

“It is for the board of education, within "the reasonable exercise of its power and discretion, to say what is best for the successful management and conduct of the schools, and not for the courts.”

The CTU also cites a number of authorities to show that collective bargaining does not involve a delegation of power. NLRB v. American National Ins. Co., 343 US 395 (1952) ; Norwalk Teachers Ass’n v. Board of Education, 138 Conn 269, 83 A2d 482 (1951); Local 266 v. Salt River Project, 78 Ariz 30, 275 P2d 393 (1954); and Fellows v. LaTronica, 151 Colo 300, 377 P2d 547 (1962), where it is said in a concurring opinion (p 551) :

“The fact that the municipality engages in collective bargaining does not necessarily mean that it has surrendered its decision making authority with respect to public employment. The final decision as to what terms and conditions of employment the municipality will agree to, or whether it will agree at all, still rests solely with its legislative body.”

On the “central question,” the right of collective bargaining in public employment in the absence of legislative authority, the briefs show exhaustive research, which has been of great assistance to this court, and the contentions of all parties are well stated. We conclude that the Board of Education of the City of Chicago does not require legislative authority to enter into a collective bargaining agreement with a sole collective bargaining agency selected by its teachers, and we hold that such an agreement is not against public policy. Therefore, the order of the trial court, which struck and dismissed the Broman complaint, was proper and within the court’s power.

Conceding that this decision of the trial court dismissing Broman’s complaint had the necessary effect of approving collective bargaining for public employees in Illinois, Broman states: “To this approval the court appended certain additional statements, apparently expressing its opinion of the manner in which collective bargaining rights ought to be exercised in the public sector,” and asserts that “these statements are of doubtful legal enforceability since the court dismissed the complaints and retained no jurisdiction over the cause. It is well settled that ‘if an actual controversy is disclosed and is adjudicated by the court . . . the suit should not be dismissed; the proper practice is for the court to enter an order declaring the rights of the parties,’ Burgard v. Mascoutah Lumber Co., 6 Ill App2d 210, 219 (1955).”

On this point, we note that plaintiff’s complaint sought a declaratory judgment of the issues and injunctive relief. The court considered the pleadings, affidavits and exhibits and obviously decided that no material dispute existed as to the facts and that, therefore, there was no triable issue of fact. The court was within its equity powers in its attempt to give summary and complete relief in this case and dispose of the principal issues on such equitable terms as the court deemed required by public interest and the justice of the cause. (County of DuPage v. Henderson, 402 Ill 179, 191, 83 NE2d 720 (1949); Remus v. Schwass, 406 Ill 63, 73, 92 NE2d 127 (1950).) The court’s direction that any agreement entered into “shall contain specific provisions whereby the employee organization shall agree not to strike, not to picket in any manner which would tend to disrupt the operation of any public school in the City of Chicago,” was a reiteration of the pronouncements made by our Supreme Court in Board of Education of Community Unit School Dist. No. 2 v. Redding, 32 Ill2d 567,207 NE2d 427 (1965).

We consider that it was within the court’s discretion to retain jurisdiction or dismiss the action, and as said in Burgard v. Mascoutah Lumber Co., 6 Ill App2d 210,127 NE2d 464 (p 219):

“There is no technical form prescribed for the declaration of rights; it is sufficient if the rights may be ascertained therefrom in connection with the findings of court or jury in view of the controversy presented.”

Finally, we consider the principal contention of the plaintiff that Count II of its complaint stated a substantial cause of action, which required a hearing, and that the trial court’s dismissal of the complaint was in error. In Count II, plaintiff alleged a number of acts of the defendant Board, which plaintiff contends manifested favoritism and partiality toward the CTU, and sought to enjoin the holding of a referendum election among the employees of the defendant Board until the prejudicial effects of the Board’s preferential treatment in favor of the CTU had been eliminated.

Plaintiff argues that the prejudicial effect of Resolution 73408 was not removed because the court declared one paragraph void, and that “the prejudicial effect of the Resolution derives from the fact that prior to any election it evidences to the Board’s employees the Board’s prior agreement to deal only with Chicago Teachers Union in regard to ‘any and all matters which are proper subjects of collective bargaining.’ The potential voters are thus apprised of the Board’s choice of a collective bargaining agent and the election may presumably be held merely to ratify the Board’s choice. Invalidating the Resolution does not indicate that the Board’s preference for the Union has disappeared; it merely indicates that the court did not share the Board’s preference.”

In response to this contention, the Board argues that as to one “discrimination” of which plaintiff specifically complained, in Resolution 73409, the plaintiff, at the court’s direction, presented its objections to the Board, which amended the Resolution and eliminated the language of which plaintiff complained. Also, it is argued that the second and last “discrimination” of which plaintiff complained was a provision in Board Resolution 73408, which the court, in the exercise of its equitable powers, held without force and effect.

The pleadings in this court show that the election was held on May 27, 1966, and the Board argues that it amended Resolution 73409 “exactly 205 days before the election was held. The Court held ineffective the cited language in Board Resolution 73408 exactly 94 days before the election. . . . The ‘effects’ of the original language were eliminated by its public negation; the Court by no means ‘ignored’ any portion of the complaint; and both counts were properly stricken after plaintiff’s rights had been declared.”

The Board further observes that “plaintiff has pointed to no provision of its Memorandum of Understanding which was ‘violated’ by the election. Plaintiff cannot assume that the Board will violate the decree by refusing to honor the terms of the Memorandum of Understanding until it terminates November 12 [1966],” and “that holding an election and entering into a collective bargaining agreement with the agency selected are two distinct and separate actions.”

The CTU agrees with plaintiff that Resolutions 73408 and 73409 contained “inappropriate language,” and asserts that “the union’s sole desire was not favoritism but a democratic election,” and “the sole question is whether the residual effects of the favoritism prejudiced Chicago Division in the election of May 27,1966.

The CTU further argues: (1) The residual effects were so minimal as not to require a hearing and the Chicago Division well knows that the effects were insignificant; (2) The question does not warrant consideration because Chicago Division, by refusing to engage in the election of May 27, 1966, failed to mitigate its damage and waived its right to complain about the election.

As to this contention, it is apparent that plaintiff had cause to allege discriminatory conduct on the part of the Board, and the trial court was aware of it. While the matter was pending before it, and in its decree, the court took affirmative action to counteract and dissipate this alleged partiality and determined that Count II did not require a hearing because there was no material dispute as to the facts.

Just how much time was required to dissipate the effect of the alleged prejudicial conduct was primarily a question for the trial court, and we assume that the court considered this point in determining the provisions of its “Opinion and Decree.” Accordingly, we find no reason to now disturb the court’s dismissal of Count II of plaintiff’s amended complaint.

In considering the “Opinion and Decree” and this record, we believe the trial court was presented with questions of substantial public interest, in a highly sensitive area, for which there were no precise limits or guidelines in this state. The court was required to act summarily if its action was to be effective. For the reasons given, the “Opinion and Decree” is affirmed.

Affirmed.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


author: MR. JUSTICE DAVIS

text:
    Lawerance A. Chidester, as Administrator of the Estate of Richard Chidester, Deceased, Lawerance A. Chidester, as Administrator of the Estate of Evelyn Chidester, Deceased, Lawerance A. Chidester, as Administrator of the Estate of Kim Chidester, Deceased, Lawerance A. Chidester, as Administrator of the Estate of Robin Chidester, Deceased, Lawerance A. Chidester, as Administrator of the Estate of Richard Chidester, Jr., Deceased, Lawerance A. Chidester, as Administrator of the Estate of Romona Chandler, and Philip Thomas, as Administrator of the Estate of Dorothy Thomas, Deceased, Plaintiffs-Appellees, v. Merritt E. Cagwin, d/b/a M. E. Cagwin Trucking Company, Orrin Sheer and John W. Popenhagen, Defendants, Merritt E. Cagwin, d/b/a M. E. Cagwin Trucking Company, and Orrin Sheer, Certain Defendants-Appellants.
    Gen. No. 66-49.
    Second District.
    December 8, 1966.

      O’Brien, Burnell, Puckett & Barnett, of Aurora, for appellants.

      Reid, Oehsenschlager, Murphy & Hupp, of Aurora, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This suit was brought in the Circuit Court of the 16th Judicial Circuit, Kane County, by Lawerance A. Chidester, as Administrator of the Estates of Richard and Evelyn Chidester and of their children, Kim, Robin and Richard Chidester, Jr., and of Romona Chandler, and by Philip Thomas, as Administrator of the Estate of Dorothy Thomas, against the defendants, Merritt E. Cagwin, d/b/a M. E. Cagwin Trucking Company, Orrin Sheer and John W. Popenhagen, in which the plaintiffs, as administrators of the respective estates, seek to recover the funeral and burial expenses of the respective decedents.

The plaintiffs had brought a prior action under the Injuries Act (Ill Rev Stats 1965, c 70, par 1, et seq.) for the wrongful deaths of the respective decedents. In that litigation, judgments were entered against all of the defendants with the exception of Popenhagen. These judgments were affirmed by this court (43 Ill App2d 336, 193 NE2d 233), and were paid and satisfied. In the case at bar, the trial court granted plaintiffs’ motion for summary judgment on the question of liability against the defendants, Cagwin and Sheer, based upon the prior judgments. After a trial on the question of damages, the court entered judgment against these defendants for the funeral and burial expenses of the respective decedents in the amounts which were proven.

The defendants have prosecuted this appeal and contend that the administrators, as plaintiffs, could have no cause of action for burial and funeral expenses other than that specified in section 2(c) of the Injuries Act (Ill Rev Stats 1965, c 70, par 2(c)), which provides in part:

“Where the deceased person left no widow or next of kin entitled to recovery, the damages shall, subject to the following limitations inure, to the exclusive benefit of the following persons, or any one or more of them:
u
(c) to the personal representatives, as such for the costs and expenses of administering the estate and prosecuting or compromising the action, including a reasonable attorney’s fee. In any such case the measure of damages to be recovered shall be the total of the reasonable value of such hospitalization or hospital service, medical and surgical services, funeral expenses, and such costs and expenses of administration, including attorney fees, not exceeding the foregoing limitations for each class of such expenses and not exceeding $900 plus a reasonable attorney’s fee.”

The defendants conclude that, since the decedents left next of kin, there can then be no recovery by the administrators for funeral expenses in that the Injuries Act gives them a right to sue for such expenses only when no spouse or next of kin survives. However, the plaintiffs’ suit for funeral and burial expenses was not founded upon the Injuries Act, but was based upon a common-law right of action in the administrator to sue for these damages. For a long period of time, Illinois did not recognize a common-law right to sue for funeral expenses. Such position was apparently a corollary of the old common-law rule that no action could be maintained for the death of a person. This concept, and the denial of such a common-law right, was unequivocally laid to rest by our Supreme Court in Saunders v. Schultz, 20 Ill2d 301,170 NE2d 163 (1960).

In Saunders, at pages 309 and 310 — after an extensive review of the development of the common law with respect to the recovery of damages where one dies from injuries wrongfully inflicted by another — the court held that there no longer existed any legally cogent reason for denying a spouse the right to recover for medical and funeral expenses incurred on behalf of a mate, wrongfully injured or killed. The court, in arriving at this conclusion, observed at page 307, “. . . that a common-law rule is not in force when the reasons for it have ceased to exist, or it is not adapted to existing conditions.”

The court specifically held in Saunders that a surviving spouse could recover the medical and funeral expenses incurred on behalf of a mate who was wrongfully killed. The rationale of the decision was: First, that the previous rule denying such recovery was but a “corollary of the archaic common-law rule that there could be no recovery for the death of a human being, which is no longer the law,” and second, a surviving spouse is personally liable under the family expense statute for medical and funeral expenses of the other spouse. The court observed at page 210, that the resulting liability for such expenses constituted very real damages and that, “Since that liability results from defendant’s tortious conduct, it is only legally sound, and in accordance with basic negligence principles, that the burden of such damages should fall, not on the innocent victim, but upon the tortfeasor.”

This rationale is equally apropos to the plaintiffs’ claim in this case. Claims for the funeral expenses of the decedents were filed against their respective estates and were allowed by the probate court. The liability of the estate and the consequent damages suffered by it are equally as real as those suffered by a surviving spouse under the family expense statute. The reason for the recognition of the right of a surviving spouse to recover for the liability incurred for medical and funeral expenses in case of a wrongful death is no more compelling than that for the acknowledgment of the same right in an administrator or executor for the same liability suffered in an estate.

Indeed, the Supreme Court in Saunders indicated as much stating at page 310 as follows:

“Inasmuch as it is the genius of our common law that it can be, and is, responsive to the changing obligations and relationships within our legal system, we believe that the common law should be construed to permit the recovery of such funeral and medical expenses in an action either by the decedent’s estate, or, as in the instant case where no such claim was made, by the surviving spouse. This interpretation is supported not only by cogent reasoning, but by the dominant judicial opinion in other jurisdictions, and earlier decisions of our courts.” (Italics ours.)

And, at page 311, the Supreme Court overruled the earlier cases which held that medical and funeral expenses could not be recovered by a surviving spouse or an estate, in the following language:

“The estate or the spouse, either or both as the circumstances indicate, are entitled to recover for pecuniary losses suffered by either or both which are not recoverable under the Wrongful Death Act, and all cases holding the contrary are overruled.”

Subsequently, in Eggimann v. Wise, 56 Ill App2d 385, 206 NE2d 472 (1965), the Appellate Court, in a suit by the administrators of certain estates, recognized their separate cause of action against the negligent tortfeasor to recover for medical, hospital and funeral expenses of a decedent. At page 392, the court stated that it could see no reason why the administrators, in a separate cause of action, could not recover for these expenses, irrespective of whether or not there was a surviving spouse, if under the facts there was otherwise a cause of action, i. e., if the damages were proximately incurred by reason of defendant’s negligence and the decedent was not contributorily negligent.

The same rule applies where a parent becomes liable for the medical and funeral expenses of his son under the family-expense section of the Husband & Wife Act (Ill Rev Stats 1965, c 68, par 15), and a parent may sue and recover for such expenses in his own name. Graul v. Adrian, 32 Ill2d 345, 347, 205 NE2d 444 (1965). The essence of these cases is that where legal liability results to an individual or an estate for the medical, hospital and funeral expenses of one who dies by reason of the wrongful acts of a third party, the burden of the damages must fall on the wrongdoer and not the innocent party; and the individual or the estate, as the case may be, has a cause of action — separate and distinct from any cause of action they might have had under the Injuries Act— for the medical and funeral expenses for which they thus became liable.

The defendants argue that the 1949 amendment to the Injuries Act, wherein it was added that the damages recoverable under the Act should include certain medical, hospital, funeral expenses and certain costs, expenses and fees in administering the estate “where the deceased person left no widow or next of kin entitled to recovery” means that the administrator may not sue for hospital, medical or funeral expenses where there is a surviving spouse or next of kin. They argue that the intent of the amendment was to relieve the harsh effect of the common-law rule that all damages abate on the death of the injured person and that the legislature gave an additional recovery to the personal representative but limited it to those instances where the deceased left no surviving widow or next of kin.

We need not consider the legislature’s intent, for the sum of the matter is that the plaintiffs here did not rely on the Injuries Act, but relied upon a common-law right of action that our Supreme Court has recognized as existing after the 1949 amendment to said Act. It is interesting that under the defendants’ analysis, an administrator should be entitled to recover medical and funeral expenses where there are no next of kin; but, where there are next of kin, who are to share the net proceeds of the estate and may have no other means of seeking redress for medical and funeral expenses incurred by reason of the wrongful acts of another, the administrator is to be denied the right to seek reimbursement for such expenses. The capacity of the common law to preclude such injustice sustains the view that its genius and glory lie in its responsiveness to the existing realities of a dynamic and changing society, and to its awareness of the value of stability and tradition without being irrevocably committed to outworn precedent.

In the case at bar, the decedent left surviving “next of kin.” Consequently, we are not required to consider the effect of the Injuries Act in its application to those cases in which there is neither a widow or next of kin surviving. The section of the Act to which defendants refer has no application where there is either a widow or next of kin surviving. In such a case, the pecuniary injuries recoverable under the Injuries Act do not include the medical, hospital or funeral expenses. Graul v. Adrian, supra, 346; Ohnesorge v. Chicago City Ry. Co., 259 Ill 424, 430, 102 NE 819 (1913). However, a distinct and separate cause of action apart from the statute may exist for the recovery of these expenses. Such a right exists in the case at bar.

Defendants further assert that plaintiffs are barred from seeking the damages sought under the doctrine of res judicata. It is their contention that the plaintiffs’ prior wrongful death actions bar any subsequent actions for damages which they might have sought in the first suit. If res judicata is to be applied and a former judgment held to be a complete bar to a subsequent action, both as to matters actually adjudicated in the first action and as to those matters which could have been raised but were not, there must be — as between the actions — identity of parties, of subject matter and of cause of action. Smith v. Bishop, 26 Ill2d 434, 436, 187 NE2d 217 (1962); Chas. Ind Co. v. Cecil B. Wood, Inc., 56 Ill App2d 30, 36, 205 NE2d 786 (1965). Here, there is not an identity of cause of action as we have hereinbefore indicated. The cause of action now asserted is a common-law right — an action which is distinct from that which was previously asserted under the Injuries Act. Consequently, the prior suit is not a bar to this action.

Lastly, the defendants contend that it was error for the trial court to rule that the prior decisions estopped them from again litigating the issue of liability. Where the parties to the litigation are the same and the same subject matter is the basis for the action, but the cause of action is different, the prior decision operates as an estoppel only as to those matters in issue and is conclusive only as to those questions actually raised and determined therein. This is sometimes called estoppel by verdict. Smith v. Bishop, supra; Chas. Ind Co. v. Cecil B. Wood, Inc., supra. Undoubtedly, the question of the negligence of the defendants and the freedom of the decedents from contributory negligence — and hence the question of liability — was raised and determined in the first suit. The identical question of liability is present in this suit.

But defendants contend there is not the requisite identity of parties. They contend that in the first suit the administrators sued on behalf of the next of kin, who were the real parties in interest; and that in this suit the administrators sued on behalf of the estates, which are the real parties in interest. This identical question was before us in the case of Franciscy v. Jordan, 43 Ill App2d 344, 352, 193 NE2d 219 (1963), where the plaintiff sued as administrator under the Wrongful Death Act on behalf of the widow and next of kin, and had previously defended in an action against the estate, on behalf of the estate. We there held the identity of parties was sufficient for the application of the doctrine of estoppel by verdict; and that under such circumstances it is sufficient if there is substantial identity of the parties.

The present case is even stronger. The defendants in this case are the identical defendants against whom the question of liability was determined in the first case, and against whom the doctrine of estoppel by verdict was asserted in the second case. The basis of the doctrine is that the party against whom estoppel by verdict is asserted, or someone with whom he is in privity, must have litigated or contested the particular question in a former action. Franciscy v. Jordan, supra, 354. The required identity or privity of the parties, essential as a proper safeguard for the party against whom the doctrine of estoppel is asserted, is that they are either identical or in privity with the party who litigated, and lost, the particular issue in the prior litigation. There need not be complete identity of all parties in both proceedings. (See cases cited in 43 Ill App2d 352, 353, 193 NE2d 219.) It has been held that the party asserting the application of the doctrine of estoppel by verdict against another need not have been a party to the prior suit. United States v. United Air Lines, Inc., 216 F Supp 709, 725, 726, 727 (ED Wash 1962). Also see: Barbour v. Great Atlantic & Pacific Tea Co., 143 F Supp 506, 507, 508 (ED Ill 1956) and Bernhard v. Bank of America Nat. Trust & Savings Ass’n, 19 Cal2d 807, 122 P2d 892, 894,895 (1942).

For the reasons indicated, we hold that the trial court properly held that the defendants were estopped by verdict from again litigating the question of their liability. In view of our conclusion, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

MORAN, P. J. and SEIDENFELD, J., concur.


author: EBERSPACHER, J.

text:
    Lorraine Smith, Plaintiff-Appellant, v. Albert Dunaway and Hattie Dunaway, Defendants-Appellees.
    Gen. No. 66-52.
    Fifth District.
    November 18, 1966.
    Rehearing denied and opinion modified December 5, 1966.

      Durr & Durr, of Edwardsville, for appellant.
    No brief filed for appellees.
   EBERSPACHER, J.

On April 8, 1964, a complaint was filed in the circuit court, complaining of the breach by defendant-appellees of a contract or bond for deed, attached to said complaint, praying for $4,800 actual damages, $10,000 punitive damages, plus costs of suit and reasonable attorney fees of $5,000. Plaintiff-appellant demanded a jury trial and the case was assigned a law number, as distinguished from a magistrate’s number. An answer was filed as was a reply to the answer, and interrogatories were filed and answered. Subsequent thereto, fire consumed the house on the property involved and which was the subject of the bond for deed.

Supplemental interrogatories were then filed with proof of service, but these interrogatories were never answered. An order to compel answers to the interrogatories, requiring answers by March 1, 1965, was entered by a circuit judge. No response was made to this court order and defendants were held in default by order of another circuit judge.

On April 29, 1965, a jury trial presided over by a magistrate was held, in which the defendants did not appear. The jury returned a verdict for $4,800 actual damages, and $5,200 punitive damages. On the same day, the magistrate awarded plaintiff $3,000 attorney fees and entered judgment for plaintiff for $13,000 and costs.

After a citation to discover assets was served on both defendants, a hearing was scheduled before a circuit judge and the defendants at the time set for such hearing, November 29, 1965, filed their motion asserting that the judgment of April 29 was void because entered by magistrate. The court allowed the motion, set the judgment aside and ordered the matter reset for trial, from which judgment order, the appellant brings this appeal.

On the dates of the filing of the complaint, the trial, and the entry of the $13,000 judgment by the magistrate, there was in full force and effect “An Act to limit or define matters to be assigned to magistrates.” Approved August 9, 1963, Ill Rev Stats 1963, c 37, section 621, which by its own provision (§9) provided that the Act was to become effective on January 1, 1964. Section 2 of that Act provided, in part:

“Civil proceedings assignable to magistrates are as follows:
“(a) When the amount of money or damages or the value of personal property claimed does not exceed $5,000.00.”

Appellees have contended that the amount claimed in the ad damnum clause is determinative of the jurisdiction of the court where jurisdiction of the court is limited as to amount or value in controversy; and that where the court lacked jurisdiction to enter judgment, the same is subject to attack at any time and is completely void, citing ILP, Courts, § 214; Kieper v. American Coal & Supply Co., 187 Ill App 131; Barnard v. Rubin, 341 Ill App 251, 93 NE2d 159; Burton v. Harris, 298 Ill App 32, 18 NE2d 249, and Ras v. Allan Anthony Elec. Corp., 55 Ill App2d 176, 204 NE2d 797, each of which by general language support those propositions. However, it is quite obvious that ILP, Courts, section 214 dealt with the jurisdiction of County Courts as it was limited by chapter 37, section 177 of the Illinois Revised Statutes prior to 1963 and it is therein pointed out that chapter 37, section 177 was repealed in 1963. Likewise each of the cited cases involved the limited jurisdiction of a County Court under the old section 177, with the exception of the Burton case, in which there was a similar jurisdictional question concerning the Municipal Court of Chicago. Each of the cases with the exception of the Ras case were decided before the amendment of the Judicial Article, and the implementing legislation of 1963.

The Ras case (supra) in which the opinion was filed in January 1965, involved review of a judgment entered in a county court previous to the repeal of old section 177, and recited that, “a jurisdictional question can, however, be raised at any time, even on appeal, and the defendants did not waive the issue by not urging it in the trial court nor did they do so by their appearance and participation in the trial.” (Citing cases.) Purely by way of dictum, that opinion stated that a comparable question might arise under the 1963 Act which defines matters assignable to magistrates, and that its language, in their opinion, closely resembled the language which had limited jurisdiction of county courts, which was old section 177. The opinion did however call attention, parenthetically, to section 8 of the 1963 Act.

Section 8 of the 1963 Act, chapter 37, section 628, Ill Rev Stats 1963, provides:

“All objections to the propriety of an assignment to a magistrate are waived unless made before the trial or hearing begins. No order or judgment is void or subject to collateral attack merely because rendered pursuant to improper assignment to a magistrate.”

By virtue of that section, the provision placing a monetary limitation on a case assignable to a magistrate, may be waived by failure to make a timely objection. Here the ad damnum explicitly exceeded the statutory limitation of $5,000 and we note that the prayer was for punitive damages and attorney fees, as well as actual damages. Although punitive or exemplary damages may be recovered in a proper case, they are not a favorite in the law, and will be allowed with caution and confined within narrow limits. City of Chicago v. Shayne, 46 Ill App2d 33, 196 NE2d 521. While the expenses and attorney fees which a plaintiff has incurred may be considered in determining the amount of exemplary damages, Ritter v. Ritter, 381 Ill 549, 46 NE2d 41, we also note that here attorney fees were fixed by the court and included in the judgment in addition to the exemplary and actual damages fixed by the jury.

These defendants, although defaulted, and notified of such default, had a right to be heard on the matter of damages. Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348. By their default they did not admit that plaintiff was entitled to damages in the amount claimed; the defaulted defendants had the right to cross-examine plaintiff’s witnesses and introduce any material evidence bearing on damages, take all proper measures to preserve questions in those respects for review, and request the giving of pertinent instructions. See Nichols Ill Civ Prac, § 4129. We are of the further opinion that a defaulting defendant, in a case in which the ad damnum exceeds the statutory monetary jurisdiction of a magistrate, is entitled to rely on the statutory direction that such case be heard by a judicial officer other than a magistrate. In Elfman v. Evanston Bus Co., supra, 27 Ill2d 609, at pages 614 and 615, 190 NE2d 348, at page 351, the court, after commenting on the precipitate manner in which damages were assessed, without an attempt to notify defendant, said:

“. . . Although defaulted, where the action is in tort or for an unliquidated claim or amount, a defendant nonetheless has the right to be heard on the matter of damages. (Straus v. Biesen, 242 Ill App 370; Tierney v. Szumny, 257 Ill App 457; 23 ILP, Judgments, §§ 59, 60.) While it has been stated broadly that a litigant by his attorney must note the progress of his case in court and is not entitled to notice except as prescribed by law, as, (sic) a general rule, except for compelling reasons, it is essential to the proper administration of justice that proper notice shall be given of steps proposed to be taken/ (66 CJS, Notice, § 14, p 652.) Again, as was cogently said in Jansma Transport, Inc. v. Torino Baking Co., 27 Ill App2d 347, 354: ‘Something more than the morals of a medieval market may reasonably be expected in the conduct of litigation/ Since defendant did have the right to be heard on the issue of damages, we think basic fairness would require that at least informal notice should have been given of the step plaintiff proposed to take.”

In the present case the record fails to show that defendants had any notice as to when or where the case was to be heard or that it was to be heard before a magistrate. The record further fails to show that any order assigning the case to a magistrate was ever entered. Under such circumstances, defendants had no opportunity to object to the propriety of the assignment to a magistrate, and have not waived such objections. The judgment was not one that was “rendered pursuant to improper assignment to a magistrate,” but was one that was rendered by a magistrate without proper notice, and without assignment, and notice of assignment to a magistrate.

There was presented, by defendants’ motion to set aside the judgment, a situation which addressed itself to the equitable powers of the court, and, in justice and fairness, defendants should be given the opportunity to appear and defend on the issue of damages in the proper forum.

We therefore affirm the judgment of the Circuit Court of Madison County, setting aside the judgment entered on April 29, 1965, in the amount of $13,000 and costs, and remand the cause for further proceedings, not inconsistent with this opinion.

Affirmed and remanded.

GOLDENHERSH and MORAN, JJ., concur.

       By amendment effective August 9, 1965, section 2 was amended and the $5,000 figure was increased to $10,000.

       Since this appeal is from the order vacating the judgment, the record of proceedings in this case does not include the evidence with reference to the damages in the original suit, and we, therefore, make no determination with reference to the propriety of exemplary damages, attorney fees, nor the amount of either. As to these questions, see ILP, Damages, §§ 131, 132, 133.

       Ch 37, § 628, Ill Rev Stats 1963, supra.


author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Obie Washington, Defendant-Appellant.
    Gen. No. 49,945.
    First District, Fourth Division.
    October 28, 1966.
    Morton C. Kaplan, of Skokie, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

After a jury trial, defendant and his codefendant, Johnnie Allen, were found guilty of unlawful sale of narcotic drugs and each was sentenced to a term of 10 to 15 years. Upon an appeal by defendant Johnnie Allen, we reversed his conviction on the ground that the trial court had erred in not suspending the proceedings on Allen’s motion for the purpose of conducting a hearing to determine his competency to stand trial. People v. Allen, 71 Ill App2d 283, 218 NE2d 837. In that opinion we noted that “on no fewer than 119 times defendant (Allen) interrupted the trial with ravings and abusive epithets directed at the judge, the State’s Attorney, and even at his own counsel. The character of these vituperative remarks by defendant was such as to convince us that a bona fide issue was raised as to defendant’s competency.” While defendant Washington urges upon us several specific groimds why he too should be afforded a new trial, we think that, regardless of whatever validity those grounds might have, reversal is required in this case for the underlying reason that a fair trial was impossible in proceedings so completely lacking in decorum.

Early in the trial both defendants (but particularly Allen) began disrupting the proceedings with disrespectful outbursts which the court chose to ignore. At one point Allen interrupted the questioning to say to the court, “You can charge me with contempt of court. I know I have said enough to be charged with contempt. I can’t understand what you are waiting on.” The conscientious trial judge was obviously sore beset to determine how best to handle the situation, but apparently decided to remain passive throughout the entire trial. That this did not result in an orderly proceeding is demonstrated, for example, by one of Allen’s accusations directed to the judge when he said, “This is a frame and you know it. You conspiring with the whole thing.”

We have no doubt but what the well-intentioned trial judge maintained his own personal dignity to a remarkable degree under most difficult circumstances. But we also have no doubt that the dignity of the court as a forum for conducting the gravely important proceedings of a criminal trial was permitted to disintegrate into little more than a shambles. The two defense lawyers (appointed by the court) were most cooperative with the judge, as was the State’s Attorney, but their operating efficiency and ability to concentrate must certainly have been reduced to a low level by Allen’s raucous distractions. This fact was crystalized in the frustration of Allen’s own counsel when he stated to the court:

I think we ought to conduct a sanity hearing on this man. He is bothering me. I can’t follow this case. And then a man who will bother his own lawyer, must be sick.

In attempting to evaluate the effect which Allen’s conduct had on the trial, we have read the entire record. It is difficult to convey the atmosphere which appeared to have existed throughout the proceedings without making this opinion too long. As an example to indicate the relationship between Allen and the judge, which persisted from the outset of the trial to the end, we shall quote from the record the colloquy after the jury brought in its verdict. In doing so, we realize that this particular matter could not have affected the verdict, but it is cited as a passage which we consider typical.

THE COURT: Thank you very much, ladies and gentlemen, for your patience and so forth. I think you have done a fine job. I think that your verdict was a good one. I, too, listened to the case just as you did and if I were serving on the jury, I think I would have voted along with you.

DEFENDANT ALLEN: Sure you would, because you are a stinker.

THE COURT: So, thank you very much, and you are discharged.

DEFENDANT ALLEN: You are a bum; a tramp. Your day is going to come.

THE COURT: This is your last day, right? Thank you, and I hope you had a pleasant two weeks.

DEFENDANT ALLEN: I hope you drop dead on the way out.

THE COURT: Thank you very much.

(Whereupon the jury retired from the courtroom, after which, the following proceedings were had in open court, to-wit:)

DEFENDANT ALLEN: That is what you are, an old black-robed bum and your day is going to come.

Very few of the departures from normal decorum were attributable to the defendant Washington. It cannot be said, however, that part of the aggravation of the jury engendered by Allen’s conduct might not have been transferred to his codefendant, nor would the source of the improprieties be controlling in the climate of this trial.

A somewhat similar situation existed in People v. Saylor, 319 Ill 205, 213, 214, 149 NE 767, where a conviction was reversed because of the disrespectful and disorderly actions of counsel, principally the State’s Attorney. The court summed up the situation, saying:

The plaintiffs in error were entitled to a fair trial by the jury, uninfluenced by recriminations of counsel and claims of unfairness and prejudice on the part of the judge, and where they have not had such a trial it is not for the court to say that they were properly convicted because they were guilty. Conviction should be the result of a fair trial and not of the conclusions which a court of review may reach from a consideration of the evidence contained in the record where there has not been a fair trial. . . .
The court should have exercised its authority during the trial to prevent successive repetitions by counsel on either side of their contemptuous conduct. One offense might perhaps be overlooked with no more than a rebuke, but the second should have met prompt punishment. A judge presiding over a trial has power to compel decorum in his court room, and it is his duty to see that the proceedings are conducted in such a manner as will inspire respect for law and the administration of justice. The Appellate Court stated that many improper remarks were made by the State’s attorney and his assistant which could not be approved, “and if this misconduct had been confined to that side alone, we would deem it our duty to reverse the judgment.” We do not agree with this view of the record, and we are not willing to affirm a judgment based upon such an irregula/r, disorderly and turbulent proceeding as the record shows this trial to have been. . . . (Emphasis supplied.)

See also People v. Burson, 11 Ill2d 360, 373, 143 NE2d 239.

In People v. Arnold, 248 Ill 169, 177, 93 NE 786, the proper function of the court in this regard was said to be the application of the judge’s power “to compel such decorum in his court as will inspire respect for the proceedings, and the exercise of such power, rather than mere advice and suggestion, is a duty.”

The measures required of the court in any given case for the preservation of order are many and varied, but they may even include, if necessary, the forcible removal of the defendant from the courtroom. This question was faced squarely by the court in People v. DeSimone, 9 Ill2d 522, 533, 138 NE2d 556 where it was said:

The constitutional privilege relied upon (to be present at every stage of the trial) was conferred for the benefit and protection of an accused. Like many other rights, however, it may be waived. Thus where a defendant voluntarily absents himself from a courtroom and refuses to be present for further proceedings he is deemed to have waived his right and cannot claim any advantage on account of his absence. (People v. Smith, 6 Ill2d 414; People v. Connors, 413 Ill 386; Sahlinger v. People, 102 Ill 241.) The court did not, therefore, exceed its legitimate powers when it proceeded while Gordon De Simone voluntarily absented himself from the trial. The same result must follow under the circumstances attending this defendant’s involuntary absence. It is obvious from the record that defendant’s removal was necessary to prevent such misconduct as would obstruct the work of the court; such misconduct was, in turn, effective as a waiver of the defendant’s right to be present. The right to appear and defend is not given to a defendant to prevent his trial either by voluntary absence, or by wrongfully obstructing its progress.

We believe that, under all the circumstances, this defendant, too, should have a new trial, and for that purpose his conviction is reversed and the cause remanded to the Circuit Court.

Reversed and remanded.

DRUCKER, P. J. and McCORMICK, J., concur.

       Defendant raised as grounds for a new trial: the failure of the court to grant a severance; the refusal of the court to grant a motion for production of the grand jury minutes; and the refusal of the court specifically to instruct the jury that the testimony of a narcotics addict must be closely scrutinized.