author: Mr. JUSTICE HALLETT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thomas Criswell, Defendant-Appellant.
    (No. 56424;
    First District (1st Division)
    May 21, 1973.

      Theodore A. Gottfried, of Defender Project, of Ottawa, (John L. Barton, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Robert C. Samko, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

The defendant was charged with murder and with obstructing justice. The jury found him not guilty of murder but guilty of obstructing justice and he was sentenced to three years probation, the first year to be served in the House of Correction. He is presently free on bond pending the outcome of his appeal, which raises two issues:

(1) Whether the statute of limitations had run on the charge of obstructing justice; and
(2) Whether proper principles of sentencing require that he serve more time in jail as a condition of his probation.

We conclude that his first contention is well founded and therefore reverse without reaching the second.

On September 18, 1966, the defendant, after experiencing dizzy spells and a blackout, found his stepfather’s body on the kitchen floor of their home, lying in a pool of blood, with a knife stuck in his chest. The defendant, afraid to call the police because suspicion would turn on him, threw away the knife, cleaned up the blood and concealed the body in the basement until the following night, when he buried it in the back yard of their home.

In May of 1969, the defendant, who had just finished his basic training in the United States Army, related these facts to his chaplain and, on the latter’s advice, told the same story to the Military Police. He was arrested and charged, on October 24, 1969, with the murder of his stepfather and with obstructing justice by knowingly concealing physical evidence of said murder.

A motion to dismiss the count charging the defendant with obstructing justice was made on the ground (conceded by the State) that said charge was a misdemeanor on which the statute of limitations is one year and six months and that (not conceded) said statute started to run on September 19, 1966, the day the defendant buried his stepfather’s body. The trial court denied the motion and the case went to trial with the results above indicated.

The first issue is, obviously, whether the one and a half year statute of limitations had run on the charge of obstructing justice by concealing physical evidence of the murder.

The defendant’s contention is that the statute began to run on September 19, 1966, the night he performed his last act (viz: burying his stepfather’s body) of obstructing justice in the case. On this basis the statute had run more than a year and a half before his indictment on this charge.

The State advances two theories in contending that the statute did not commence to run until the defendant had disclosed to the authorities that he had concealed evidence.

The first theory is set forth as follows in the State’s brief:

“The Criminal Code at article 3 — 8 provides that when an offense is based upon a series of acts that the period of limitations starts at the time when the last such act is committed. ‘Act’ is defined in Article 2 — 2 as including a failure or omission to take action. The defendant’s intent to conceal the evidence; that is, the body of Robert Bourrell, coupled with his failure or omission to dig up the body and indicate to the authorities that evidence had been concealed, was a failure or omission to take ac'-. tion. These acts of Thomas Criswell continued to occur until the middle of May, 1969, when knowledge of the evidence came to the attention of the prosecuting authorities. Under Section 3 — 8 of Ch. 38, the limitations period would begin to run on the date the information of the concealment was received because prior to that time the defendant’s failure to inform the authorities constituted continuing offense.”

The statute (Ill. Rev. Stat. 1967, ch. 38, par. 31 — 4(a)) in pertinent parts, reads as follows:

“31 — 4. § 31 — 4. Obstructing Justice. A person obstructs jus tic when, with intent to prevent the apprehension or obstruct the prosecution or defense of any person, he knowingly commits any of the following acts:
(a) Destroys, alters, conceals or disguises physical evidence, plants false evidence, furnishes false information; or
# # #
Penalty.
A person convicted of obstructing justice shall be fined not to exceed $1,000 or imprisoned in a penal institution other than the penitentiary not to exceed one year or in the penitentiary from one to 3 years, or both fined and imprisoned.”

It should be noted that failures to dig up a body or to indicate to the authorities that evidence has been concealed are not defined as acts obstructing justice and probably could not constitutionally be made so in view of the fifth amendment to the Constitution of the United States. Hence the defendant’s failure to inform the authorities does not and cannot constitute a “continuing offense”.

The State cites no cases in support of this theory and we know of none precisely like the case at bar. We are therefore forced to seek somewhat analogous situations.

In Grunewald v. United States, 353 U.S. 391, 1 L.Ed.2d 931, 77 S.Ct. 963, the three petitioners were convicted in the Federal District Court of conspiring to defraud the United States by preventing the criminal prosecution of certain taxpayers for fraudulent tax evasion. They had succeeded in obtaining “no prosecution” rulings from the Bureau of Internal Revenue in 1948 and 1949 and their subsequent activities were directed at concealing the irregularities through which these ridings were obtained. They were not indicted until October 25, 1954, and the three year statute of limitations was pleaded as to certain counts.

In reversing and remanding, the Supreme Court, at pages 401 — 402, 403, 405 said:

“The crucial teaching of Krulewitch and Lutwak is that after the central criminal purposes of a conspiracy have been attained, a subsidiary conspiracy to conceal may not be implied from circumstantial evidence showing merely that the conspiracy was kept a secret and that the conspirators took care to cover up their crime in order to escape detection and punishment. As was there stated, allowing such a conspiracy to conceal to be inferred or implied from mere overt acts of concealment would result in a great widening of the scope of conspiracy prosecutions, since it would extend the life of a conspiracy indefinitely. Acts of covering up, even though done in the context of a mutually understood need for secrecy, cannot themselves constitute proof that concealment of the crime after its commission was part of the initial agreement among the conspirators. For every conspiracy is by its very nature secret; a case can hardly be supposed where men concert together for crime and advertise their purpose to the world. And again, every conspiracy will inevitably be followed by actions taken to cover the conspirators’ traces. Sanctioning the Government’s theory would for all practical purposes wipe out the statute of limitations in conspiracy cases, as well as extend indefinitely the time within which hearsay declarations will bind co-conspirators.
# # #
We find in all this nothing more than what was involved in Krulewitch, that is, (1) a criminal conspiracy which is carried out in secrecy; (2) a continuation of the secrecy after the accomplishment of the crime; and (3) desperate attempts to cover up after the crime begins to come to light; and so we cannot agree that this case does not fall within the ban of those prior opinions.
* # #
* * * We cannot accede to the proposition that the duration of a conspiracy can be indefinitely lengthened merely because the conspiracy is kept a secret, and merely because the conspirators take steps to bury their traces, in order to avoid detection and punishment after the central criminal purpose has been accomplished.”

In State v. Weiler, (Mo. 1960), 338 S.W.2d 878, the debtor corporation’s sole stockholder, who was also a director of the creditor, was charged with falsely representing to the creditor, in 1953, that the debtor was unable to pay, whereupon the creditor made no attempt to collect. The misrepresentation was not discovered until 1959, when the information was filed.

In affirming the trial court’s order sustaining a plea of the three-year statute of limitations, the Supreme Court of Missouri, at page 881, said:

“* # # the state in this case not only failed to plead any exception necessary to remove the bar of the statute of limitations, but it was affirmatively alleged both in the indictment and in the substitute information that the false and fraudulent representations were not discovered until August 3, 1959; thus presumably the state affirmatively set forth the only reason for the delay in the return of the indictment and the filing of the substitute information, a reason not constituting one of the exceptions provided in either Section 541.220 or Section 541.230, supra. Under those circumstances we find no reasonable basis for holding that the prosecution and trial were not barred by the 3-year statute of limitations; and no reason for a contrary view has been suggested by the state in its brief or reply brief.”

The Illinois cases follow the same rule.

In Weimer v. People, 186 Ill. 503, 58 N.E. 378, the town supervisor was indicted for the embezzlement of town funds, during his term of office. On the trial the three-year statute of limitation was raised and the proof tended to show that, if the defendant had embezzled funds, it had occurred more than three years before the indictment, the latter having been returned after he failed to turn certain town funds over to his successor. In reversing a conviction for the giving of an improper jury instruction stating, in substance, that the statute did not begin to run until his defalcations were discovered, our supreme court, at page 508, said:

“This instruction was misleading and erroneous, for, as before shown, the statute began to run against any embezzlement or fraudulent conversion when it was committed, and not when it was discovered or made manifest by a failure to pay over on demand. * * *”

To the same effect on substantially the same facts, see: Baschleben v. People, 188 Ill. 261, 265, 58 N.E. 946; People v. Lee, 356 Ill. 294, 296-297, 190 N.E. 264; People v. Barrett, 405 Ill. 188, 194-195, 90 N.E.2d 94.

We therefore conclude that the State’s contention — that the defendant’s failure to dig up the body or to indicate the concealment to the authorities constituted a continuing series of acts which prevented the statute from running — is without merit.

This brings us to the State’s second theory, which is set forth as follows:

“Further, it is the position of the State that the period of limitations was tolled during the period of concealment. The factual situation at bar is analogous to section 3 — 7(a) of the Criminal Code, that the defendant is not usually and publicly resident within this state. The basis for this argument rests in the rationale of the exception. If the legislature recognized that the state pros-ecutorial bodies are hindered in attempting to bring a defendant to justice when he secrets himself, it necessarily follows that when the commission of a crime is concealed the limitation period is tolled until discovery of the offense.”

This flies in the face of the old Latin maxim expressio unius exclusio alterius, 2 Coke Upon Littleton, 210a. Illinois follows this rule of statutory construction. As our supreme court said in, In re Estate of Leichtenberg, 7 Ill.2d 545, 552, 131 N.E.2d 487,

“* * * it is a fundamental rule of statutory construction that the enumeration of certain things in a statute implies the exclusion of all others. (People ex rel. Hansen v. Collins, 351 Ill. 551; Tennant v. Epstein, 356 Ill. 26.)”

This same view appears in Savings Ass’n v. International Insurance Co., 17 Ill.2d 609, 162 N.E.2d 345, where the court said, at page 612:

“A familiar principle of statutory construction is that the expression of one thing in an enactment excludes any other, even though there be no negative words prohibiting it. (National Home Building and Loan Ass’n v. Home Savings Bank, 181 Ill. 35; Swick v. Coleman, 218 Ill. 33.) * *

In Morgan v. People, 16 Ill.2d 374, 158 N.E.2d 24, the Illinois Supreme Court applied this to an exception to a statute of limitation when it said, at page 379, that:

“* * * It is the established rule that exceptions to a statute of limitations will not be implied and if the legislature has not seen fit to except a class of persons from the operation of a statute, courts will not assume the right to do so. (30 Am. Jur., Limitation of Actions, sec. 186, p. 150.) * *

In Peach v. Peach, 73 Ill.App.2d 72, 218 N.E.2d 504, the appellate court, through Mr. Justice Davis, at page 82, said:

“The legislature has limited the exception in the statute of limitations to those who are insane or mentally ill’ as those words are variously defined. It has not seen fit to extend the exceptions to a class of persons who, though not insane or mentally ill, do not possess the mental capabilities expected of or common to persons of their age. No such exception may be implied or created by the courts. Morgan v. The People, 16 Ill.2d 374, 379, 158 N.E.2d 24 (1959).”

Applying this rule, the State’s alternative theory also fails and the conclusion that the statute of limitations had run before the defendant was indicted is inescapable.

We, therefore reverse the judgment on this ground and do not reach the question of a proper sentence.

Judgment reversed.

BURKE, P. J., and EGAN, J., concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Peter Connors, Defendant-Appellant.
    (No. 57221;
    First District (1st Division)
    May 21, 1973.
    BURKE, P. J., took no part.
    James J. Doherty, Public Defender, of Chicago, (Bernard L. Schwartz, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and James R. Carlson, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM:

On February 11, 1971, the defendant, Peter Connors, entered a plea of guilty to an indictment charging him with two counts of armed robbery in violation of section 18 — 2 of the Criminal Code. (Ill. Rev. Stat. 1969, ch. 38, par. 18 — 2.) He was placed on probation for a period of three years, the first four months to be served in the county jail.

On November 22, 1971, a hearing was held on a rule to show cause why the defendant’s probation should not be revoked. After the hearing, the defendant’s probation was revoked and he was sentenced to a term of two to ten years in the Illinois State Penitentiary. The defendant appeals, arguing only that his maximum sentence of ten years is excessive and should be reduced.

At the hearing on the Rule to Show Cause, the following testimony was adduced: Alvin Walker testified that he is a coin collector for Illinois Bell Telephone. On June 25, 1971, at approximately 1:30 P.M. he was at 137 S. Pulaski, Chicago, Illinois when the defendant approached him and attempted to talk him into letting him rob him. Walker refused and the defendant entered a nearby tavern. As Mr. Walker was entering his truck, the defendant came out of the tavern, picked up a cardboard box and entered the truck with him. The defendant told Walker that he had a companion with a gun parked in a car across the street. The defendant took the collection cans which contained approximately $700, went over to the waiting car, and put the box containing the money into the trunk of the car. Walker was able to get the license number of the automobile and immediately contacted the police. Mr. Walker gave the police a description of the offenders and the license number of their car.

The defendant was arrested later that night and told a security representative of the telephone company that after he asked Walker to let him rob him, Walker had “more or less” agreed. In his home was found a white carton containing the stolen coin boxes containing $346. In the rear of the building where he had been arrested, the police found five telephone company collection cans that had been forced open.

After the defendant’s probation was revoked, the hearing in aggravation and mitigation disclosed that the defendant had the following convictions: April 18, 1966, petty theft; October 27, 1967, unlawful use of a weapon; February 11, 1971, theft.

In mitigation Rev. Thurmond Harper testified he is the Baptist minister at Cook County Jail. During the past five or six months during which the defendant was incarcerated, he had personal contact with the defendant and felt that he was a fine young fellow.

The defendant argues that the trial court improperly considered the acts which led to his violation of probation in determining his sentence. He argues that he was thereby sentenced not for the original crime for which he was convicted, but for acts occurring thereafter. In People v. Golston, 1 Ill.App.3d 132, 273 N.E.2d 614, this court held that on a revocation of probation, the trial court may properly consider a defendant’s subsequent acts as relevant to the defendant’s rehabilitation.

The defendant does not challenge his minimum sentence, which is the minimum possible statutory sentence for armed robbery, but challenges as excessive his maximum sentence of ten years, which is less than the possible maximum. The divergent legal principles bearing upon the question of reduction of sentences by reviewing courts have frequently been stated. The legal reasons for and against reduction of sentence are well set forth in People v. Lampley, 1 Ill.App.3d 282, 274 N.E.2d 171, including the dissenting opinion. This sentence is well within the applicable statutory limits. We believe that the trial judge was in a superior position to evaluate the matter and we find no compelling reason to alter the result which he reached after seeing and hearing all of the witnesses. People v. Gates, 8 Ill.App.3d 754, 291 N.E.2d 261.

For the foregoing reasons, the judgment and sentence appealed from are affirmed.

Judgment affirmed.

Mr. PRESIDING JUSTICE BURKE took no part in the consideration or decision of this case.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ellis M. Henderson (Impleaded), Defendant-Appellant.
    (No. 55844;
    First District (2nd Division)
    May 22, 1973.
   PER CURIAM.

James J. Doherty, Public Defender, of Chicago, (Harold A. Cowen, Assistant Public Defender, of counsel,) for appellant.

Bernard Carey, State’s Attorney, of Chicago, for the People.


author: Mr. PRESIDING JUSTICE STAMOS

text:
    Gilbert Vallarta, Plaintiff-Appellee, Cross-Appellant, v. Lee Optical of Missouri, Inc., Defendant-Appellant, Cross-Appellee.
    (No. 57135;
    First District (2nd Division)
    May 22, 1973.

      Paul P. Preston, of Chicago, (Harry G. Fins, of counsel,) for appellant.
    Morris D. Witney, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

This is an appeal and a cross-appeal from an order, entered on December 30, 1971, which awarded plaintiff the sum of $2900 as damages for breach of a contract of employment. Defendant’s sole contention on appeal is that the judgment for plaintiff on the issues was contrary to the manifest weight of the evidence. Plaintiff’s sole contention is that the trial court’s assessment of damages was incorrect. These contentions require that we briefly review the evidence.

Plaintiff testified on his own behalf as follows: On April 10, 1988 he met with Emmet Guest and Gene Schanbaum, representatives of defendant, for the purpose of discussing a proposed contract of employment. Plaintiff was offered a position as district supervisor at a salary of $15,000 per annum plus one percent commission on sales at stores under plaintiff’s responsibility. The employment relationship was to extend until the end of 1988. Plaintiff agreed to these terms and commenced employment on April 27, 1968. He underwent a period of orientation during April and May, managing the Mt. Prospect store and becoming acquainted with the responsibilities of a district supervisor. He was then assigned a district that encompassed six stores, each of which he visited once a week. His duties involved the hiring and firing, training and orientation of personnel and the monitoring of bookkeeping. Plaintiff discharged these duties until he was terminated on October 10, 1968. During the period of employment, he was paid a salary of $600 per month plus one and one-half percent commission on the sales of the Mt. Prospect store. The commission averaged $60 per month. On several occasions plaintiff complained to defendant’s representatives about the variance between this compensation and that which he was promised. However, he received no satisfaction. On October 19, 1968, after his termination, plaintiff secured a job as a dispensing optician with Aimer Coe Optical Company at a salary of $800 per month.

On cross-examination plaintiff admitted that, prior to commencing employment with defendant, he completed and signed a written application for employment. This application, which was introduced into evidence by defendant, described plaintiff’s position as “Mgr.-Optician” for the Mt. Prospect store and set compensation at $600 per month plus one percent commission. The application also reflected that plaintiff would be trained as an “area supervisor” and that he had held a prior position as a “Dispensing Optician” with Gate City Optical Co. at a salary of $150 per week plus commissions.

Defendant’s sole witness was Emmet Guest, who testified as follows: At the time of trial he was a district supervisor for defendant, assigned to the state of Missouri. In April, 1968 he was also a district supervisor for defendant, with responsibilities for all Chicago area offices. In early April, 1968 he and Gene Schanbaum had a meeting with plaintiff to solicit plaintiff’s interest in joining the firm. Salary was not discussed. After plaintiff expressed his interest, a second meeting was arranged between Guest and plaintiff to consummate the agreement. Plaintiff was told that he would initially be placed in charge of one office, but would be given additional responsibilities in time. Mr. Guest filled out the pertinent employment application, which reflected a salary for plaintiff of $600 per month plus one percent commission on the “bank deposits” of the Mt. Prospect store. Plaintiff read the forms, then signed them. He was never offered $15,000 per year; in fact the lesser rate of compensation was expressly discussed before the forms were signed. There was to be no definite term of employment.

Sidney Telson, a store manager for defendant, appeared as a rebuttal witness in plaintiff’s behalf. He testified that, during 1968, plaintiff, performed the duties of a district supervisor. He checked the witness’s store regularly, and all sales records were mailed daily to plaintiff. Mr. Telson added that only district supervisors, not store managers, were called upon to travel among the stores. Plaintiff also appeared as a rebuttal witness and testified that, prior to working for defendant, he was employed by Gate City Optical Company at a salary of $800 per month. He submitted into evidence a check stub reflecting reimbursement from defendant for traveling expenses during 1968.

Defendant’s sole contention on appeal is that the finding of the trial court in favor of plaintiff was contrary to the manifest weight of the evidence. Broadly speaking, the case at bar presents an evidentiary conflict between the testimony of plaintiff, corroborated by limited documentary and other testimonial evidence, and the testimony of defendant’s representative, corroborated by a written employment contract signed by plaintiff. Plaintiff’s complaint alleged, and his theory has consistently remained, that on April 10, 1968 he was hired by defendant as a district supervisor at a salary of $1250 per month plus commissions from the six stores under his supervision. It was never suggested at trial that he was to receive a lower salary initially, later to progress to the higher salary, or that his later demonstrated competence resulted in a promotion and a raise. Plaintiff was thus obligated to prove by a preponderance of the evidence that his salary was, from the outset, to be $1250 plus commissions. The only evidence directly supporting this allegation was plaintiffs own testimony. Corroborating evidence was insubstantial. The fact that his prior job paid $150 per week plus commissions did not render it inherently illogical that plaintiff might accept a similar position with greater opportunity for advancement at a salary of $600 per month plus commissions. Plaintiff’s rebuttal evidence merely supported his original testimony that he discharged the duties of a district supervisor following a brief period of orientation, a fact which defendant did not dispute. (In fact, defendant introduced into evidence the written contract which itself reflected that plaintiff would be trained as an “area supervisor.”) Absent from plaintiff’s case, however, was any evidence as to the customary salary of a district or area supervisor. Of even greater significance is the failure of plaintiff to reconcile his testimony with the express terms of the written contract, which he admittedly signed. No attempt was made to explain why he signed a contract reflecting a salary of $600 per month for a position as a “Manager-Optician” if, in fact, the agreement was for double that salary for a position of greater responsibility.

Defendant's testimonial evidence consisted of one witness, who specifically denied any oral contract of employment. Defendant’s documentary evidence consisted of the written contract of employment, and related appendages, signed by plaintiff and defendant’s representative.

Ordinarily, plaintiff would be barred from contradicting the terms of the written contract by parol evidence. (I.L.P. Evidence § 255.) However, defendant did not object to this testimony at trial and has accordingly waived its right to assert the parol evidence rule on appeal. (Tolbird v. Howard, 43 Ill.2d 357, 253 N.E.2d 444; Hercules Powder Co. v. Rowan, 245 Ill.App. 291 293.) Although we must therefore consider plaintiff’s testimony on appeal, its weight is nonetheless diminished by certain principles of evidence. Where contracting parties have reduced their agreement to writing, it is presumed that the writing expresses the mutual intention of the parties, and only by clear and convincing evidence can this presumption be rebutted. (Harley v. Magnolia Petroleum Co., 378 Ill. 19, 27, 37 N.E .2d 760.) Similarly, where there is a direct conflict in oral testimony, documentary evidence becomes of paramount importance and must be accorded greater weight than testimonial evidence. (Welch v. Worsley, 330 Ill. 172, 230-232, 161 N.E. 493; Bishop v. Bucklen, 322 Ill.App. 529, 54 N.E.2d 876, redd on other grounds, 390 Ill. 176, 60 N.E.2d 872.) In the case at bar, the best evidence of the parties’ employment agreement was the written contract. Plaintiffs evidence was weak and largely uncorroborated. Under these circumstances we hold that the finding in favor of plaintiff was contrary to the manifest weight of the evidence.

In view of the foregoing disposition, there is no need to consider plaintiff’s cross-appeal concerning assessment of damages.

Pursuant to Supreme Court Rule 366 (Ill. Rev. Stat. 1971, ch. 110A, par. 366(a)(5)), this court, may, in its discretion enter any judgment or order, and grant any relief, which the case may require. Where a cause is tried by a court without a jury, and where the parties have had the opportunity to present all their evidence, as in the instant case, no useful purpose is served by remanding the matter to the trial court for a new trial. (Dayton Scale Co. v. General Market House Co., 335 Ill. 342, 167 N.E. 100; Cromwell Paper Co. v. Wellman, 23 Ill.App.2d 263, 162 N.E.2d 500.) Therefore, the judgment of the trial court is reversed, and the cause is remanded with directions to enter judgment for defendant.

Reversed and remanded with directions to enter judgment for defendant.

LEIGHTON and HAYES, JJ., concur.


author: Mr. JUSTICE DIERINGER

text:
    Barbara J. Patmon, Plaintiff-Appellee, v. William Coffey, Jr., Defendant-Appellant.
    (No. 56643;
    First District (4th Division)
    May 23, 1973.
    Foos and Sexner, Ltd., of Chicago, (William L. Meyers, of counsel,) for appellant.
    Raymond E. Harth, of Chicago, (Rogers, Garnett, Harth, Vital & Stroger, of counsel,) for appellee.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This action for declaration of paternity and for an order of support was tried without a jury in the Circuit Court of Cook County, and the defendant was adjudged to be the father of the complainant’s child and ordered to pay $150 per month for support.

The issue on appeal is whether the court erred in not allowing the defendant to introduce evidence which would impeach the credibility of the plaintiff.

The plaintiff, Barbara J. Patmon, filed a complaint on October 16, 1970, alleging the defendant, William Coffey, was the father of her child bom out of wedlock. She testified she had sexual relations with no one but the defendant between October of 1967 and February of 1968, and her child was born on October 30, 1968. After the birth of the child she testified the defendant gave her nine checks and some cash.

The defendant testified he did not have sexual relations with Barbara Patmon after November of 1967, and gave her the money as loans even though he was aware she had charged him with being the father of the child.

The defendant’s sole basis of appeal is the court precluded him from impeaching the complainant’s credibility. Although he made no offer of proof at trial, he states on appeal he wanted to introduce prior inconsistent statements to show Barbara Patmon was not married to one James Green between the years of 1958 and 1962, as she stated on her discovery deposition.

The law is clear that prior inconsistent statements as to material matters are admissible to impeach a witness. (People v. Mathews (1959), 17 Ill.2d 502; Black v. DeWitt (1965), 55 Ill.App.2d 220.) This is especially important in paternity cases where the plaintiff and the defendant are likely to be the only witnesses. However, in the instant case, the proposed impeachment with respect to the plaintiff’s marital status between 1958 and 1962 had no reference to a material element of the case, and the rulings of the trial court were entirely correct.

For these reasons, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

BURMAN, P. J., and ADESKO, J., concur.


author: Mr. JUSTICE McNAMARA

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Tex Sterling, Defendant-Appellant.
    (No. 57059;
    First District (3rd Division)
    May 24, 1973.

      Sherman, Schachtman & Stein, of Chicago, (Jack G. Stein and Hersch Y. Franks, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and Patricia C. Bobb, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

Defendant was charged with the offenses of gambling and keeping a gambling place. Prior to trial, the gambling charge was dismissed. After a bench trial, defendant was found guilty of keeping a. gambling place. (Ill. Rev. Stat. 1969, ch. 38, par. 28 — 3.) He was sentenced to serve 30 days in jail and fined $500. On appeal defendant contends that tire trial court erred in admitting certain telephone conversations into evidence, and that he was not proved guilty beyond a reasonable doubt of keeping a gambling place.

At trial, the arresting officer testified that he went to the premises located at 951 North Ashland Avenue in Chicago with another officer to execute a search warrant. The witness knocked at the apartment door, but no one answered. The police gained entry into the apartment and saw a flash of fire near defendant, the only person in the room. The police recovered a copy of the Illinois Sports News for that day and a black dish in which paper had recently been burned. The witness stated that he had been a vice officer for two and a half years, and that, in his opinion, the burnt remains found in the dish were ashes from flash paper, a paper which is chemically treated to burn quickly and is used for recording bets. Both the dish and the paper were introduced into evidence.

The arresting officer also testified that the telephone had rung several times while he was in tire apartment and that he had answered it twice. He stated that on both occasions the caller placed bets. Over defense objection, the officer was permitted to testify as to the substance of those conversations. The callers had placed wagers on certain horses and specified races at specific locations. The State was not permitted to introduce into evidence the notes which the officer had taken concerning these calls and which he had used to refresh his recollection.

Defendant first contends that the trial court committed reversible error in admitting into evidence the contents of the telephone conversations between the police officers and the unknown persons who called the premises during the course of the search. Defendant maintains that the conversations were inadmissible because the receipt of the telephone calls by the officer was an unlawful search and seizure in that the receipt of telephone calls was not described in the search warrant, and because the testimony concerning the contents of the telephone conversations was too general and lacking in specificity.

Defendant’s argument that the receipt of the telephone conversations by the arresting officer went beyond the scope of a search warrant and thereby violated defendant’s right to be free from unlawful search and seizure is not properly before this court. The search warrant has not been made part of the record on appeal. We are, therefore, neither authorized nor obligated to consider this contention. People v. Rogers, 26 Ill.2d 599, 188 N.E.2d 22.

In a gambling prosecution, police testimony as to the receipt of telephone calls concerning wagers during a valid search of premises has been held by this court to be relevant, proper and admissible into evidence. (People v. Mamolella, 85 Ill.App.2d 240, 229 N.E.2d 320.) The case cited by defendant to support his contention, People v. Russo, 131 Ill.App.2d 163, 266 N.E.2d 395, is not applicable to the instant case. In Russo, one of the police officers testified that he answered the telephone several times during the course of executing a search warrant and that he had conversations with three of the callers. However, the trial court struck the contents of these conversations from the evidence on the ground that the testimony was too general and lacked specificity. We do not, therefore, know what the contents of those conversations were.

In the instant case, the arresting officer testified that he spoke with two different persons during the course of his search. He testified that both persons placed bets on horse races of specified numbers at specified places for specific amounts. We cannot say, therefore, that the testimony of the officer was general in nature or lacked specificity. The trial court properly admitted into evidence the arresting officer’s testimony as to the contents of the telephone conversations.

Defendant also contends that the evidence adduced was insufficient to prove him guilty beyond a reasonable doubt. In order to support a conviction for keeping a gambling house, the State must prove that the defendant owned, occupied or controlled the premises; that the building was used for the purposes of gambling; and that defendant knowingly permitted such gambling. Ill. Rev. Stat. 1969, ch. 38, par. 28 — 3; People v. Perry, 34 Ill.2d 229, 215 N.E.2d 229.

Although the evidence was circumstantial, the State proved that the premises in question were controlled by the defendant at the time of the arrest. Mere presence on the premises is insufficient to establish control, but the fact that defendant was present by himself in a locked apartment at the time the police gained entry would be sufficient to establish control under the statute. See People v. Roti, 2 Ill.App.3d 264, 276 N.E.2d 480.

The evidence presented at trial also sufficiently established that the premises were used for the purposes of gambling. The arresting officer testified that the residue in the black pan was the burned remains of “flash paper,” and that flash paper was a chemically treated paper which would burn quickly and was used for the purpose of recording bets. A copy of an Illinois Sports News for that day was also recovered in the premises. This evidence, together with the testimony of the officer of the telephone conversations concerning the placing of wagers, was sufficient to establish that the premises were being used for the purposes of gambling.

The evidence was also sufficient to show that the defendant knowingly permitted such use. Since defendant was the only party present on the premises and since the evidence was sufficient to show that the premises were being used for gambling, defendant cannot claim lack of knowledge. Defendant was proved guilty beyond a reasonable doubt.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

DEMPSEY, P. J., and McGLOON, J., concur.


text:
    Darrell Johnson, a Minor, by Albert Johnson, His Father and Next Friend, Plaintiff-Appellee, v. Felix Biver, Defendant-Appellant.
    (No. 56983;
    First District (1st Division)
    May 29, 1973.
    Dalton P. Grief, of Chicago, (Ellis B. Rosenzweig, of counsel,) for appellant.
    Warren J. Hickey, of Hickey, Gustafson & Peterson, of Chicago, (Joseph B. Lederleitner, of counsel,) for appellee.
   PER CURIAM.

EGAN, J., took no part.


author: Mr. PRESIDING JUSTICE BURKE

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Lynn B. Pettis, Defendant-Appellee.
    (No. 55956;
    First District (1st Division)
    May 21, 1973.

      Rehearing denied June 19, 1978.

    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel,) for the People.
    Irwin L. Frazin and Barry S. Frazin, both of Chicago, for appellee.
   Mr. PRESIDING JUSTICE BURKE

delivered the opinion of the court:

This action arises from the trial court’s granting of the defendant’s motion to suppress identification testimony on the ground that it resulted from his illegal arrest. The state appeals pursuant to Supreme Court Rule 604. Ill. Rev. Stat. 1971, ch. 110A, par. 604(a)(1).

On August 12, 1969, the defendant was arrested on charges of burglary and impersonating a police officer. While in police custody, the defendant was photographed, and his color photograph was kept on file by the police. Between the date of his arrest and the court date, the defendant’s photograph, along with the photographs of other persons, was shown to Miss Gladys High, who had been the victim of an armed robbery on August 4, 1969. She identified the defendant from his photograph, as did a Mr. Porche, who was a witness to the robbery and who was shown the same group of photographs. Based on these identifications the defendant was arrested as he was leaving the courtroom after appearing with respect to the August 12, 1969 arrest. He was theri placed in a three-man lineup, where he was identified by Miss High and Mr. Porche.

On November 19, 1969, the defendant again appeared on the August 12, 1969 charges. At the hearing on that date, the court ruled that the arrest of the defendant on August 12, 1969, was made without probable cause and sustained the defendant’s motion to suppress evidence. Thereafter, the charges of burglary and impersonating a police officer were dismissed.

After the defendant was indicted for the armed robbery of Miss High, he filed motions to suppress evidence illegally seized and to suppress lineup identification testimony. The ground for the first of these motions was the fact that the color photograph from which Miss High and Mr. Porche first identified the defendant was taken at the time of his illegal arrest on August 12, 1969. The first motion to suppress was granted, and the state filed this appeal.

The defendant argues that but for his iHegal arrest - on August 12, 1969, his photograph would not have been taken by the police and shown to the witnesses. Without that identification he would not have been arrested a second time. Since the photograph was a fruit of the illegal arrest, the identification testimony originating with it must be suppressed as evidence in the instant case.

The sole question before us is whether the identification testimony of Miss High and Mr. Porche was so tainted by the illegal arrest on August 12, 1969, as to render it inadmissible as evidence against the defendant. Whether a “booking” photograph transmits such a taint is a novel question in this state, although it has been treated in another jurisdiction. (People v. McInnis, 6 Cal.3d 821, 494 P.2d 690, 100 Cal. Rptr. 618.) The California Supreme Court held that identification testimony based on a photograph taken at the time of the defendant’s illegal arrest was admissible on the ground that the record revealed no exploitation of the illegal arrest.

The exclusionary rule, which requires that evidence illegally seized be refused admission to prove the charges against the defendant, has been extended to exclude testimony which was obtained from witnesses discovered by reason of an illegal search or seizure. (People v. Albea, 2 Ill.2d 317, 118 N.E.2d 277.) The extended rule has been applied in Illinois even when the witness was the victim of the crime. People v. Bean, 121 Ill.App.2d 332, 257 N.E.2d 562.

The threshold question is the test to be applied in determining the admissibility of evidence. The defendant contends that it is a “but for” test; i.e., if the police would not have such evidence in their possession but for the initial illegal act, then it must be suppressed. An examination of the authorities does not support this theory.

The Illinois cases on which the defendant relies contain language which implies that a “but for’test was determinative. In tire first case, the defendant was walking on the street with a man whose appearance fit the description of a criminal the police were seeking. The police stopped both men, asked for identification, and, finding the identification of one Willie Shard on the defendant, took the defendant to the police station where he was identified by Willie Shard as one of the men who had robbed him. (People v. Bean, 121 Ill.App.2d 332, 257 N.E.2d 562.) The arrest was later found to be without probable cause. In holding inadmissible the identification testimony of Willie Shard, this court said:

“The exhibition of defendant to the victim was a direct consequence of the admittedly unlawful detention of his person. Indeed, the identification would not otherwise have occurred.
We hold the identification of defendant to be a product of the unlawful seizure of his person and consequently all testimony relating thereto improperly admitted into evidence against him. Further, all subsequent identifications of defendant by the victim, including in-court identification, are directly traceable to the unlawful detention of defendant.” People v. Bean, 121 Ill.App.2d 332, 335, 257 N.E.2d 562, 564.

As for the second case, the court said, in holding inadmissible the testimony of a witness discovered in an illegal search of the defendant’s apartment:

“One could well say of the Martin and the Schmoll cases that but for the illegal search the names of the prosecuting witnesses would not have been obtained, and in this case but for the illegal search the witness, Ora Lee Vaughn, would not have been discovered.” People v. Albea, 2 Ill.2d 317, 321, 118 N.E.2d 277, 279.

The language implies that a “but for” test was applied in those cases. But further examination reveals that the test used was whether the testimony was obtained as a direct result of the original illegal act.

The United States Supreme Court has refused to make a “but for” test the basis of the exclusionary rule: “We need not hold that aH evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the iHegal actions of the police.” (Wong Sun v. United States, 371 U.S. 471, 487 — 88, 9 L.Ed.2d 441, 455, 83 S.Ct. 407, 417.) The court in that case found that testimony of a witness discovered as a direct result of an illegal search should have been excluded.

Within this framework we must conclude that a “but for” test exceeds the mandate of the United States Supreme Court and the courts of this state. It is sufficient, for purposes of the deterrent effect expected of the exclusionary rule, that the test be whether the evidence uncovered was a direct result of the original illegal act. To impose a “but for” test on the police would be a crippling burden, producing results never contemplated by the architects of the exclusionary rule. (See Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684.) Applying the defendant’s premise, not only would a photograph taken following an illegal arrest result in inadmissible identification testimony, but so would a sketch made from the arresting officer’s recollections of the person arrested. Even more intolerable is the prospect of a photograph taken at an illegal arrest rendering inadmissible identification made many years later in entirely unrelated proceedings.

The test being whether the evidence sought to be suppressed was the direct result of the original illegal act, we turn to the United States Supreme Court for guidance in implementing the test. The court has said that the:

“s * * question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Wong Sun v. United States, 371 U.S. 471, 488, 9 L.Ed.2d 441, 455, 83 S.Ct. 407, 417.

The primary illegality in this case is the arrest of August 12, 1969. The evidence to which instant objection is made is the identification testimony of Miss High and Mr. Porche. The identification testimony was “come at" by means of the photograph taken at the time of the illegal arrest.

Thus, our attention is directed to the photograph for a determination of whether the prohibited exploitation has occurred. Photographs, such as the one in the case before us, are taken as a matter of course, principally to identify the defendant as the one arrested. Such a record in the hands of law enforcement officials is considered to be in the public interest. (Kolb v. O’Connor, 14 Ill.App.2d 81, 142 N.E.2d 818.) Any question of exploitation, then, must turn on the facts surrounding the illegal arrest.

A situation akin to the one before us exists in the cases involving the suppression of fingerprint evidence. A landmark case, in which the Supreme Court of the United States ruled inadmissible fingerprint evidence obtained at the time of an illegal detention contained the following statement:

“Detentions for the sole purpose of obtaining fingerprints are no less subject to the constraints of the Fourth Amendment. It is arguable, however, that, because of the unique nature of tire fingerprinting process, such detentions might, under narrowly defined circumstances, be found to comply with the Fourth Amendment even though there is no probable cause in the traditional sense.” Davis v. Mississippi, 394 U.S. 721, 727, 22 L.Ed.2d 676, 681, 89 S.Ct. 1394, 1397 — 98.

Following this statement the court proceeded to describe some of the features of the fingerprinting process which make it a minimal intrusion on the privacy of the individual. Nevertheless, the court held the evidence in this case inadmissible because there had been a complete absence of procedures which complied with the fourth admendment protections. Since this Supreme Court decision, another court has found admissible fingerprint evidence obtained at the time of an illegal arrest. After noting that the illegal arrest was not for the sole purpose of obtaining the defendant’s fingerprints, the court said: “The arrest may have been a mistake but it was not an example of overreaching governmental misconduct which must be suppressed at any cost.” Paulson v. State (Fla. App. 1972), 257 So.2d 303, 305.

Although the “booking” photographs which gave rise to the identification testimony in the instant case have not been specifically designated as within the veil of the fourth amendment protections, it is our belief that the same reasoning should be applied to photographs as to fingerprints; i.e., a detention for the sole purpose of initiating or enlarging the defendants records held by the police will be subject to the prohibí-tions. Thus, in determining whether the photographs were obtained for exploitation purposes, we envision the original arrest as being based on such a lack of probable cause as to force the conclusion that it was made solely to acquire data regarding the defendant. In such case, a photograph could conceivably carry the taint of the initial illegality beyond the crime for which the defendant was illegally arrested.

Proceeding to the facts in this case, we conclude that, while there may have been insufficient probable cause for arrest, the record contains information which takes the photographs out of the prohibited category, and the consequent identification testimony should have been admitted. The defendant was arrested on August 12, 1969, after he was discovered near the site of an attempted burglary. The officer who responded to the burglary call came upon the defendant while searching the vicinity of the crime. He asked the defendant for identification and was shown a police badge. The defendant said he lived in a neighboring building. The police officer observed the defendant attempting to enter his alleged home. The owner of the building responded to the defendant’s attempted entry and told the police officer that he did not know the defendant. The officer checked the badge number of the one shown him by the defendant and found that it had been stolen in a burglary. The defendant was then arrested and his photograph taken. Based on these facts, we cannot find that the illegal arrest was prompted by a desire for records only. We conclude that the identification testimony was not acquired by exploiting the defendant’s illegal arrest,- and the motion to suppress it should have been denied.

For these reasons the order to suppress is reversed and the cause remanded with directions to reinstate the cause and for further proceedings.

Order reversed and cause remanded with directions.

GOLDBERG and EGAN, JJ., concur.


author: Mr. JUSTICE SULLIVAN

text:
    Helen Kirkwood, by John Lewis Kirkwood, Admr. of the Estate of Helen Kirkwood, Deceased, et al., Plaintiffs-Appellees, v. Checker Taxi Company et al., Defendants-Appellants. Robert Arnold et al., Plaintiffs-Appellees, v. Checker Taxi Company, Defendant-Appellant.
    (No. 56003;
    First District (5th Division)
    May 18, 1973.

      Rehearing denied June 27, 1973.

      Peter Fitzpatrick, of Chicago, (Fitzpatrick & Gulbranson, and Jesmer & Harris, of counsel,) for appellants.
    Shapiro, Kreisman & Epstein, of Chicago, (David S. Kreisman, of counsel,) for appellees.
   Mr. JUSTICE SULLIVAN

delivered the opinion of the court:

On December 29, 1964, a taxi owned by defendant Checker Taxi Company and operated by Edward Stoakley, in which plaintiff Helen Kirkwood, deceased at the time of trial, and her grandson Wayne Harris were passengers, was involved in a collision on Congress Street near Clark Street with an Oldsmobile driven by plaintiff Robert Arnold, in which plaintiff Willa Hairston was a passenger.

The suit brought by the taxi passengers was consolidated with the suit of the Oldsmobile occupants. In a jury trial verdicts were directed against defendants Checker and Stoakley on the issue of liability as to the taxi passengers and the jury assessed damages of $7250 to the Estate of Kirkwood and- $200 to Wayne Harris, a minor. The jury also found against the defendants in the suit of the Oldsmobile occupants and assessed damages of $700 to Robert Arnold and $600 to Willa Hairston. From the judgments entered on these verdicts defendants appeal.

Stoaldey testified he was eastbound on Congress and intended to turn right at Clark but, before he started to turn and while he was in the second lane from the curb, his taxi was struck on the right side by Arnold’s car which also was eastbound and had been in the curb lane. He testified that his taxi was at all times in the second lane and still there when the vehicles came to rest at which time the left front of the Oldsmobile was also in the second lane. Arnold testified that the taxi turned into his lane and struck the left side of his car and that he was always in the curb lane and was still in the curb lane when the vehicles came to rest with the right front of the taxi also in the curb lane at that time. Hairston, Arnold’s passenger, also testified that the taxi turned into their lane of traffic. She didn’t get out of the car to look at the vehicles after-wards. Police officer Partillo testified that when he arrived at the scene the Arnold car was in the curb lane and the right front fender of the taxi was also in the curb lane. All occurrence witnesses testified the vehicles moved after the impact and there was testimony from Arnold and Hairston of a second impact.

During the trial plaintiffs called Mrs. Billie Stratton to the stand and defendants objected because her name had not been provided in answers to interrogatories served five months prior on Arnold and Hairston. The trial judge allowed defendants’ attorney a five minute interview with the witness after which she was allowed to testify over the objection of the defendants. She stated that she was the sister of Arnold and was in a car with three other persons which was travelling behind the Checker Taxi cab and she saw the taxi turn from the second lane and strike her brother’s car which was in the curb lane. She testified to only one impact and that the vehicles moved to the right after that impact.

The defendants first allege the trial judge erred in allowing Mrs. Strat-ton, a surprise witness, to testify.

Supreme Court Rule 201(b)(1) provides “* * * a party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action * * e.” Rule 213(a) provides that “* * w a party may direct written interrogatories to any other party” and Rule 213(c) requires that within 28 days after service of the interrogatories on a party, he shall file a sworn answer or an objection to each interrogatory. Rule 219(c) provides that if a party unreasonably refuses to comply with the rules the court may enter such orders as are just including an order barring a witness fom testifying.

Plaintiffs contend that the trial judge correctly allowed the witness to testify because where no compliance order was sought or obtained by defendants the failure to answer was not an “unreasonable refusal.” We disagree with this contention.

We believe it to be well established that there are a number of factors to be considered in determining whether the exclusion of a witness is an appropriate sanction to impose when her name has not been furnished. Among the factors our courts have considered are: the surprise to the adverse party, the prejudicial effect of the testimony, the nature of the testimony, the diligence of the adverse party, the timely objection to the testimony and the good faith of the party calling the witness. Carlson v. General Motors Corp. (1972), 9 Ill.App.3d 606, 289 N.E.2d 439; Buckler v. Sinclair Refining Co. (1968), 68 Ill.App.2d 283, 216 N.E.2d 14.

In this case we note that Mrs. Stratton was the only non-party witness to the accident to testify. She was the sister of Arnold, worked in the same plant with him and she spoke to him at the scene of the accident so that it may reasonably be inferred that he knew she had some knowledge of the occurrence. It is also noted there were three other persons in the car with her who worked in the same plant and that they were the same three fellow workers Arnold had testified he saw at the scene of the accident. The failure to answer the interrogatories therefore failed to disclose not only the name of Mrs. Stratton, but also resulted in the non-disclosure of the names of her co-passengers prior to trial. Furthermore, the record discloses defendants were surprised and that a timely objection was made to the testimony of Mrs. Stratton. We believe her testimony was prejudicial because, she being the only non-party occurrence witness, it is reasonable to assume that the trial judge relied heavily on her testimony in directing the verdicts on the liability issue. Plaintiffs’ lack of good faith is strongly indicated, not only because Arnold must have known Mrs. Stratton was a witness, but he would also have known that the other three occupants of her car, who were coworkers of Arnold and Hairston, must have had some knowledge of the occurrence. In addition, he failed to disclose and identify the pedestrian at the scene who wrote his name on a piece of paper which at the time of trial Arnold said was some place in his home.

In Monier v. Chamberlain (1966), 35 Ill.2d 351, 361, 221 N.E.2d 410, 417, the court stated that “ascertainment of truth and ultimate disposition of the lawsuit” is better served when parties are well educated as to then- respective claims in advance of trial. See also Drehle v. Fleming (1970), 129 Ill.App.2d 166, 171, 263 N.E.2d 348, 350, where it was stated, “[T]he principle is now well established that the purposes of litigation are best served when each party knows as much about the controversy as is reasonably practicable.”

In the light of these principles and because the factors to be considered in determining sanctions weigh heavily in favor of her exclusion as a witness we do not believe that the five minute interview of Mrs. Stratton granted by the court was an adequate resolution of the interrogatory deficiencies. In Rosales v. Marquez (1965), 55 Ill.App.2d 203, 208, 204 N.E.2d 829, it was stated “an interview with a witness shortly before he takes the stand is not always a satisfactory substitute for a pretrial deposition. A deposition not only permits a thorough examination under oath but also provides a provable record that can be used for impeachment purposes: it may disclose facts that should be investigated, information that should be verified, leads to other witnesses that should be pursued * * *; it may also reveal data about the witness which would influence the selection of jurors.”

However, although a recess for deposition would often be a suitable sanction, we believe it would have been inappropriate here as the defendants would have required additional time to arrange to take the depositions of the three persons who were with Mrs. Stratton and whose names would have been revealed in her deposition as they were in her testimony. But the record does not disclose that the trial judge was made aware before Mrs. Stratton testified, either prior to or after the five minute interview, that she was an occurrence witness and a sister of Arnold or that there were three other probable witnesses with her. Had this information been given him, we believe the trial judge should have excluded the witness. However, since the appropriateness of sanctions is within his discretion (Ferraro v. Augustine (1964), 45 Ill.App.2d 295, 196 N.E.2d 16) and, inasmuch as the information had not been made known to him prior to his ruling on defendants’ objection to Mrs. Stratton’s testimony, we cannot say that he abused this discretion.

We consider next the contention that the court erred in directing the verdicts on the issue of liability against the defendants in the suit of the taxi passengers.

The defendants Stoakley and Checker owed the taxi passengers a duty to use the highest degree of care consistent with the mode of conveyance in the practical operation thereof. (Holderness v. Checker Taxi Co. (1969), 105 Ill.App.2d 251, 245 N.E.2d 32.) However, they were not liable for injuries which result from a cause beyond their control. (Baltes v. Checker Taxi Co. (1960), 27 Ill.App.2d 298, 169 N.E.2d 596.) And, it is established that the mere fact of an accident which injures a passenger does not authorize a presumption that the carrier was negligent. Nilsson v. Checker Taxi Co. (1972), 4 Ill.App.3d 718, 722, 281 N.E.2d 721.

Stoakley testified he was always in the second lane of traffic from the curb. Arnold, Hairston and Mrs. Stratton, sister of Arnold, testified that the taxi turned into the curb lane in which the Arnold car was travelling. Police officer Partillo testified that when he arrived the Arnold car was in the curb lane and the right front of the taxi was also in the right curb lane.

Stoakley also testified that a marked line appearing in a photograph (Arnold exhibit 1) was the dividing line between the curb and the second lane and that it showed the taxi north of the marked line and in the second lane of traffic with part of the Arnold car also in the second lane. Arnold couldn’t say whether the marked line in this photograph was the dividing line between the two lanes but stated that he was always in the curb lane. Neither Hairston nor Mrs. Stratton were asked about this photograph. And officer Partillo couldn’t tell whether the marked line in the photograph was the dividing line between the two lanes.

Defendants contend that if the jury believed the accident happened as Stoakley said, it could find them not liable and that the evidence was not so overwhelming, within the meaning of the Pedrick principle, so that a verdict in their favor could not stand. The plaintiffs contend that the court correctly applied the principle in directing the verdict for the taxi passengers.

In Pedrick v. Peoria and Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504, the court considered the question of when a trial judge may determine that the proof presents no factual question for the jury’s consideration and it stated at p. 510:

“In our judgment verdicts ought to be directed # # * only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based upon that evidence could ever stand.”

Pedrick involved a train-car collision at a crossing protected by flasher warning signals. The only allegation of negligence was that the flasher signals were not operating. There was ambiguous testimony from the two plaintiffs and the third occupant of the car (she had a separate suit pending) in their testimony concerning whether the flashers were operating. Seven witnesses for the defendant testified positively that the flashers were operating, including two disinterested motorist witnesses, one driving a car towards the tracks from the opposite direction and the other driving behind the plaintiffs’ car. At p. 511 in Pedrick the court stated:

“When the dubious probative value of the testimony of the plaintiffs and Hazel Lindsey is considered in the light of the unequivocal testimony by persons with no apparent interest in the outcome of this lawsuit and the corroborative testimony of the railroad employees, we believe it may fairly be said that all of the evidence, viewed most favorably to plaintiffs so overwhelmingly favors defendant that no contrary verdict based on this evidence could ever stand.”

We believe that Pedrick keys on the equivocation of the testimony for the plaintiffs and the positiveness of the defense testimony particularly that of the distinterested witnesses.

In the instant case contrary to the testimony ambiguity in Pedrick, the testimony of Stoakley was positive that the taxi was always in the second lane. There was corroboration to some extent in the testimony concerning the photograph (Arnold exhibit 1) which, if believed, would indicate that the taxi was in the second lane. Plaintiffs’ witnesses were also positive that the Arnold car was in the curb lane. The interest of Arnold and Hairston is obvious and Mrs. Stratton, a sister of Arnold, must also be considered an interested witness. We also note an inconsistency in the fact that the trial court did not direct a verdict as to liability in favor of Hairston.

We are required by the Pedrick principle, to view the evidence in its aspect most favorable to the defendants. (Gille v. County Housing Auth. (1970), 44 Ill.2d 419, 255 N.E.2d 904.) We have done so and we conclude that the evidence does not so overwhelmingly favor the taxi passenger plaintiffs that a contrary verdict based on this evidence could not stand.

Accordingly, judgments entered in favor of the plaintiff John Lewis Kirkwood, Administrator of the Estate of Helen Kirkwood, and in favor of the plaintiff, Wayne Harris, a minor, are reversed and the cause remanded for new trial.

We turn now to the defendants’ contention that the judgments in favor of plaintiffs Arnold and Hairston should be reversed. They contend that by directing a verdict in favor of the other plaintiffs the court found that the defendants were negligent and, although the issues of liability and contributory negligence were submitted to the jury, as to Arnold and Hairston, that defendants were seriously prejudiced because the jury had already been informed that they were hable as to the other plaintiffs. The liability issue hinged on the question of which vehicle crossed the lane dividing line and, by his finding of liability in the taxi passengers’ case, the court, in effect, found that the taxi had crossed the center line and struck the car. In the face of this direction the jury was not likely to find in the case of Arnold and Hairston that the taxi did not cross over the center line. We believe that the question of defendants’ negligence should have been presented to the jury unfettered by the court’s direction of liability in the consolidated case.

Accordingly, the judgments entered in favor of the plaintiff Robert Arnold and in favor of the plaintiff Willa Hairston are reversed and the cause remanded for new trial.

Inasmuch as this consolidated case is remanded for new trial, it will not be necessary to consider defendants’ remaining contentions which complain of rulings of the trial judge.

Reversed and remanded.

DRUCKER, P. J., and ENGLISH, J., concur.


author: Mr. JUSTICE LEIGHTON

text:
    The Village of River Forest, Plaintiff-Appellant, v. Midwest Bank & Trust Co. et al., Defendants-Appellees.
    (No. 56181;
    First District (2nd Division)
    May 15, 1973.

      Charles L. Michod, of Chicago, for appellant.
    Equi, Farwell, Rickelman & Proteau, and Laser, Schostok, Kolman & Frank, both of Chicago, (Paul J. Proteau, Milton J. Kolman, and Stephen J. Pokorny, of counsel,) for appellees.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

The issue in this appeal is whether a municipal ordinance, invalid because the municipality lacked power to adopt it, is validated only by the subsequent enactment of an enabling statute. To resolve this issue we turn to principles well established in the law of municipal corporations. First, however, we will state the material facts.

I.

The plaintiff in this litigation was the Village of River Forest, an Illinois municipal corporation. Defendants were Midwest Bank & Trust Co., trustee of a land trust and four individuals, all bachelors, unrelated to each other by birth, adoption or marriage. The subject of the controversy was a four-bedroom residence, 914 Harlem Avenue in River Forest, a part of the Village which since 1922 has been zoned for single-family use. In 1959, Village adopted a zoning ordinance which defined “family” as “[o]ne or more persons occupying a premises and living as a single housekeeping unit, and related to each other by birth, adoption or marriage, and including domestic servants, as distinguished from a group occupying a rooming house or hotel * *

In City of Des Plaines v. Trottner, 34 Ill.2d 432, 216 N.E.2d 116, a case decided in 1986, the Illinois Supreme Court held that under statutes then in force, Illinois municipalities lacked power to adopt a zoning ordinance which defined “family” so that a residence could not be occupied by four young men because they were not related to each other by birth, adoption or marriage. In effect, the court held that no Illinois municipality had the power to adopt an ordinance that defined “family” as did the zoning ordinance which River Forest adopted in 1959. As an apparent legislative response to Trottner, however, the General Assembly, effective August 26, 1967, enacted a statute that gave municipalities the power “to classify, to regulate and restrict the use of property on the basis of family relationship, which family relationship may be defined as one or more persons each related to the other by blood, marriage or adoption and maintaining a common household.” Despite this enactment, the Village of River Forest did not readopt its 1959 zoning ordinance defining “family” nor did it adopt an ordinance as corporate authorities were empowered to do by the 1967 statute.

In January 1970, Midwest Bank and Trust Company, Trustee of Trust No. 650901, held title to 914 Harlem Avenue. In its capacity as trustee, it entered into articles of agreement for warranty deed with four bachelors who agreed to purchase the residence for $38,000 payable over a period of years. The bachelors entered into possession and lived there as one housekeeping unit. On November 12, 1970, Village filed a complaint against Midwest and the bachelors. It alleged the zoning of 914 Harlem Avenue for single-family use, enactment of its 1959 zoning ordinance defining “family,” and occupancy of the residence by the bachelors in violation of the zoning ordinance. Among other relief, Village prayed for an injunction restraining defendants from using 914 Harlem Avenue as a multiple-family dwelling in violation of its zoning ordinance. The complaint was later amended and the bachelors filed an answer. Thereafter, memoranda of law were filed, the cause set for hearing and evidence was heard. It was shown that 914 Harlem Avenue was zoned for single-family use; that in 1959 Village adopted its ordinance defining “family” as persons related to one another by birth, adoption or marriage; that in 1966 the Supreme Court of Illinois in Trottner held that Illinois municipalities lacked power to adopt such an ordinance; that in August 1967 the General Assembly granted municipalities the power to adopt such ordinance; and that thereafter, the Village of River Forest did not re-adopt the ordinance so defining “family.”

After the hearing, the trial court held that in 1959 when Village adopted its zoning ordinance, it lacked power to define “family” as it had done; that Village should have readopted its ordinance in 1967 when the General Assembly gave municipalities the power to adopt such ordinances; and that not having done so, the bachelors were free to five in 914 Harlem Avenue, even though they were not related to each other by birth, adoption or marriage. The amended complaint was dismissed for want of equity. Village contends that the trial court erred in making this ruling. It argues that there is a presumption which supports the validity of its 1959 zoning ordinance, a presumption that defendants did not overcome. It insists that the decision of the Illinois Supreme Court in Trottner did not affect the validity of its ordinance; that in any event, by the 1967 statute, the General Assembly validated the ordinance Village had adopted in 1959, even though the ordinance was not re-adopted.

II.

In the law of municipal corporations, it is settled that a municipality like River Forest derives its existence and powers from the General Assembly. Such a municipality does not possess inherent powers. In order to legislate on a particular subject, River Forest must point to a statute that expressly gives it authority. Statutes granting power to municipal corporations are strictly construed; and any fair or reasonable doubt concerning existence of an asserted power is resolved against the municipality. See Father Basil’s Lodge, Inc. v. City of Chicago, 393 Ill. 246, 252, 65 N.E.2d 805; 62 C.J.S. Municipal Corporations § 412.

It is a corollary of these principles that a municipal ordinance adopted without express statutory authority is void. (Two Hundred Nine Lake Shore Building Corp. v. City of Chicago, 3 IIl.App.3d 46, 278 N.E.2 216.) However, a municipal ordinance, void or defective because in its enactment there was some irregularity, omission or failure in complying with the law, may be rendered valid by state legislation, if there is no constitutional inhibition and the legislature had power to authorize the ordinance. (See Bean v. Town of Vidor (Tex. Civ. App. 1969), 440 S.W.2d 676; 5 McQuillan, Municipal Corporations, § 16.94 (3d ed.).) Even if such cases, legislative validations are limited by the rule that validity cannot be given to assumed municipal power which did not exist when it was exercised. (People ex rel. Ward v. Chicago & E. I. Ry. Co., 365 Ill. 202, 6 N.E.2d 119.) Furthermore, a validating statute must name or in some way identify the void ordinance, or clearly indicate that the statute is to validate it. City of Chicago v. Rumpff, 45 Ill. 90; 92 Am. Dec. 196.

III.

In this case, prior to 1967, Illinois municipalities did not have express statutory authority to adopt an ordinance that prohibited persons unrelated by birth, adoption or marriage from occupying the same single-family residence as a housekeeping unit. (City of Des Plaines v. Trottner, 34 Ill.2d 432, 216 N.E.2d 116.) The Village of River Forest, then, lacked power to adopt its 1959 ordinance which so restrictively defined “family” that the four bachelors in this case could not live in 914 Harlem Avenue, River Forest. The ordinance was void. Baltis v. Village of Westchester, 3 Ill.2d 388, 121 N.E.2d 495.

When in 1967, tire legislature gave municipalities the power to restrict the use of property to defined family relationships, it could not have validated it. A municipal ordinance, invalid because the municipality lacked power to adopt it, is not validated only by the subsequent enactment of an enabling statute. (See People ex rel. Larson v. Thompson, 377 Ill. 104, 35 N.E.2d 355; compare Aurora Sanitary District v. Randwest Corporation, 123 Ill.App.2d 444, 258 N.E.2d 817.) Therefore, River Forest should have re-adopted its 1959 ordinance or adopted one like it. Not having done either of these, the four-bachelor-defendants in this case, although unrelated to each other by birth, adoption or marriage, could occupy 914 Harlem Avenue in River Forest as a single housekeeping unit. The trial court did not err in its ruling. We affirm the judgment.

Affirmed.

STAMOS, P. J., and SCHWARTZ, J., concur.

       In 1959, by authority of Ill. Rev. Stat. 1957, ch. 24, par. 73 — 1(1), Illinois municipalities had general power to enact zoning ordinances that defined land use.

       Ill. Rev. Stat. 1967, ch. 24, par. 11 — 13 — 1(9).

       This, of course, is not true of a municipal corporation that qualifies for home rule under the home rule provisions of the 1970 Illinois Constitution. See Ill. Const. 1970, art. VII, sec. 6; City of Evanston v. County of Cook, 53 Ill.2d 312, 291 N.E.2d 823.

       Zoning ordinances, like the one involved in this appeal, have been the subject of considerable litigation in recent years. See Borass v. Village of Belle Terre (2d Cir. 1973), 41 L.W. 2476 and the cases cited.
      In Borass, the United States Court of Appeals for the Second Circuit, with one judge dissenting, held that a zoning ordinance limiting occupancy of one-family dwellings to traditional family units or to groups of not more than two unrelated persons establishes a classification that does not in fact bear a substantial relation to any lawful zoning objective and therefore violates the due process and the equal protection clauses of the fourteenth amendment to the United States Constitution.


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    Indian Valley Golf Club, Inc., Plaintiff-Appellee, v. The Liquor Control Commission et al., Defendants-Appellants.
    (No. 57580;
    First District (4th Division)
    May 16, 1973.

      Collins & Amos, of Chicago, and Murray R. Conzelman, of Waukegan, for appellants.
    James P. Chapman, of Chicago, for appellee.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

Following a hearing held in the Circuit Court of Cook County pursuant to the Administrative Review Act (Ill. Rev. Stat., ch. 110, §§ 264-279), the defendants, specifically the Village of Long Grove and its Liquor Commissioner, were ordered to issue a liquor license to the plaintiff. The Village of Long Grove and its Liquor Commissioner herein appeal from that judgment.

The issues presented for review are: (1) whether the decision of the Illinois Liquor Control Commission is supported by the manifest weight of the evidence; and (2) whether there is a license which could be issued to the plaintiff, an Illinois for-profit corporation.

The plaintiff, Indian Valley Golf Club, Inc., an Illinois corporation, has operated a golf club in the Village of Long Grove in Lake County since 1962. As part of its operation since opening, the plaintiff has been licensed by the Village of Long Grove to sell alcoholic beverages and has done so continually. The local liquor license held by the plaintiff was renewed semi-annually without objection or difficulty until October 21, 1969, when the plaintiff, having applied for a renewal of its license using the forms and application provided by the Village, was notified by the Village hearings would be held with regard to the ownership of stock in the plaintiff corporation. Such hearings, presided over by the Village President acting as the local Liquor Commissioner, were held but failed to produce any evidence which reflected adversely on the character of the plaintiff corporation or any of its shareholders. The only evidence presented at the hearings was to the effect that the plaintiff was an Illinois for-profit corporation operating a daily fee golf course admitting anyone. Moreover, no mention was made at these hearings of a Village ordinance, purportedly adopted on October 14, 1969, which established certain classes of liquor licenses. On July 1, 1970, the Liquor Commissioner for the Village of Long Grove refused to renew the plaintiff’s liquor license on the ground that the plaintiff was not entitled to a license under the revised Liquor Control Ordinance adopted by the Village on October 14, 1969.

The plaintiff thereafter appealed the refusal of the Village of Long Grove to renew its liquor license to the Illinois Liquor Control Commission. At the hearings held before the Illinois Liquor Control Commission, it was the Village’s position that the plaintiff could qualify for a liquor license only if organized as a not-for-profit corporation as there were no licenses established by the revised Liquor Control Ordinance of October 14, 1969, for a “club” organized for profit such as the plaintiff. For this reason, the Illinois Liquor Control Commission denied the plaintiff’s appeal on April 1,1971.

Pursuant to the Administrative Review Act (Ill. Rev. Stat., ch. 110, §§ 264-279), the plaintiff sought review of the decision of the Illinois Liquor Control Commission in the Circuit Court of Cook County. After hearing arguments by both the plaintiff and the Village, the trial court, in an order signed on April 27, 1972, reversed the decision of the Illinois Liquor Control Commission as contrary to the manifest weight of the evidence, and finding the plaintiff fully qualified for a liquor license under the applicable state and local liquor control laws. Furthermore, the trial court not only found the action of the local Liquor Commissioner in denying the plaintiff’s application for renewal of its license to be discriminatory, unreasonable and arbitrary, but also found the Village’s revised Liquor Control Ordinance of October 14, 1969, violative of due process of law. In view of these findings, the trial court, therefore, ordered the Village of Long Grove to issue a liquor license to the plaintiff.

The first issue presented for review is whether the decision of the Illinois Liquor Control Commission is supported by the manifest weight of the evidence.

The defendants contend that since the plaintiff, Indian Valley Golf Club, Inc., admitted in hearings before the local Liquor Commissioner it is an Illinois for-profit corporation operating a daily fee golf course admitting anyone, the local Liquor Commissioner properly construed that pertinent section of the Village’s revised Liquor Control Ordinance of October 14, 1969, in declining to renew the plaintifFs license as applied for on October 21, 1969. The pertinent section of the Village’s revised Liquor Control Ordinance upon which the local Liquor Commissioner based his decision not to renew the plaintiff’s license is that section wherein the definition of a “club” appears. In that section, a “club” for the purpose of licensing is defined as:

“A corporation organized under the laws of this State not for pecuniary profit solely for the promotion of some common object other than the sale or consumption of alcoholic liquors and owning, hiring or leasing a building or space in a building of such extent and character as may be suitable and adequate for the reasonable use and accommodation of its members, guests and persons using such facilities.”

Since the plaintiff allegedly does not meet local license requirements as a “club” under the aforementioned definition, the defendants contend there is no license to issue to the plaintiff and, therefore, the decision of the local Liquor Commissioner is more than supported by the manifest weight of the evidence. Since this same evidence was presented at the hearings held by the Illinois Liquor Control Commission, the defendants contend the Commission’s decision upholding the local Commissioner is supported by the manifest weight of the evidence, and the trial court erred in reversing the findings of the Commission. In support of their contention, the defendants rely on the decision in Vavrys v. Illinois Liquor Control Com. (1968), 92 Ill.App.2d 451, where the court stated:

“Unless the findings (of the Commission) are against the manifest weight of the evidence or fail to be supported by substantial evidence in the record they will be upheld on review.”

Initially, we find it necessary to address ourselves to the defendants’ reliance on the plaintiff’s use of the word “club” in its title as a reason for refusing to issue a liquor license to the plaintiff. The use of the word “club” by many businesses that are organized for profit does not deceive anyone. (Walton Playboy Club, Inc. v. City of Chicago (1962), 37 Ill.App.2d 425.) The facts in the instant case are uncontroverted that the plaintiff’s primary operation is a general fee golf course, open to the general public, and not a private club organized with the specific purpose of excluding certain portions of the general public. Counsel for the defendants conceded during oral argument the real reason the Village of Long Grove purportedly adopted that section of the revised Liquor Control Ordinance wherein a “club” is defined was to impose an exclusionary policy on the existing license holder which had the word “club” in its title, namely, the plaintiff, thereby effectively precluding the incursion of any outside individuals or groups into this staid, homogeneous community. Such reasoning is contrary to the public policy of this state, wherein the civil rights of all individuals and groups are preserved and respected and cannot be abridged.

Turning our attention to the defendants’ contention that the decision of the trial court is contrary to the manifest weight of the evidence, we find such contention relies in its totality on a most basic condition precedent, namely, the actual existence of the revised Liquor Control Ordinance which the Village of Long Grove claims to have adopted on October 14, 1969, because it was the application of this revised ordinance which led to the village’s refusal to renew the plaintiff’s liquor license. Section 26 of the revised ordinance states:

“This ordinance shall be in full force and effect from and after its passage, approval and publication as provided by law.”

Additionally, sections 1 — 2 — 4 and 1 — 2 — 6 of the Illinois Municipal Code (Ill. Rev. Stat, ch. 24, § 1 — 2 — 4 and § 1 — 2 — 6) provide respectively:

“§ 1 — 2 — 4. All ordinances of cities, villages and incorporated towns imposing any fine, penalty, imprisonment, or forfeiture, or mating any appropriation, shall (1) be printed or published in book or pamphlet form, published by authority of the corporate authorities, or (2) be published at least once, within 10 days after passage, in one or more newspapers published in the municipality, or if no newspaper is published therein, then in one or more newspapers with a general circulation within the municipality. In municipalities with less than 500 population in which no newspaper is published, publication may instead be made by posting a notice in 3 prominent places within the municipality. No such ordinance shall take effect until 10 days after it is so published # * # »
“§ 1 — 2 — 6. The contents of all municipal ordinances, the date of passage, and the date of publication or posting, where required, may be proved by the certificate of the municipal clerk, under the seal of the corporation * #

In view of not only the above statutory sections but also Section 26 of the revised Liquor Control Ordinance, publication of such ordinance is absolutely necessary prior to certification; however, the certification affixed to the revised Liquor Control Ordinance by the Village Clerk neither states the date such ordinance was published nor does it reflect the fact that such ordinance was published at all. Moreover, counsel representing the Village conceded during oral argument that the ordinance was never published. The law in Illinois is well settled that a general statement of publication in the certification by the village clerk is prima facie sufficient to establish the existence of the ordinance and is, therefore, sufficient to render the ordinance admissible as evidence. (City of Centralia v. Basha (1917), 206 Ill.App. 333; Burns v. Chicago & Alton R.R. Co. (1923), 229 Ill.App. 170.) The instant ordinance, however, did not and could not have a general statement of publication in its certification by the Village Clerk since admittedly the ordinance was never published. The instant ordinance is a nullity and should never have been allowed to be introduced before the Illinois Liquor Control Commission. For this reason, we necessarily find the decision of the Illinois Liquor Control Commission contrary to the law and to the manifest weight of the evidence.

The second issue presented for review is whether there is a license which could be issued to the plaintiff, an Illinois for-profit corporation.

The defendants contend the judgment of the trial court wherein the Village of Long Grove was ordered to issue a liquor license to the plaintiff is erroneous and should be reversed. The basis for this contention is the defendants’ assertion that there is no license to issue to the plaintiff under the revised Liquor Control Ordinance of the Village of Long Grove adopted on October 14, 1969.

We have already found the revised Liquor Control Ordinance upon which the defendants rely to be a nullity. Moreover, the record is silent in regard to the local liquor control ordinances upon which the Village of Long Grove issued liquor licenses prior to the purported adoption of the revised Liquor Control Ordinance of October 14, 1969. One fact stands uncontroverted, however, that is the Village of Long Grove not only granted liquor licenses prior to October 14, 1969, but granted such licenses to the plaintiff on a semi-annual basis from 1962 until the decision of the local Liquor Commissioner on July 1, 1970. The record does reflect the plaintiff has continued to operate its liquor facilities since the decision of the local Liquor Commissioner pursuant to a stay order of the Illinois Liquor Control Commission and, thereafter, an order of the Circuit Court. These facts, taken together, make it apparent to this court that certain local liquor control laws must have been in existence prior to the refusal by the local Liquor Commissioner to renew the plaintiff’s license application. Furthermore, we take judicial notice that there exists certain applicable statute sections in the form of the Illinois Liquor Control Act (Ill. Rev. Stat., ch. 43, § 94 et seq.), which in the absence of specific local ordinances control the instant situation. Since no showing has been made by the defendants that the plaintiff is barred from holding a liquor license under the operation of such controlling statutes, and since the plaintiffs held a liquor license from 1962 until 1970 without .objection under such controlling statutes, we necessarily reject the defendants’ contention there is no liquor license to issue to the plaintiff. Any attempt of the Village to force the plaintiff out of business under the facts and the law in this case would be a violation of due process. We therefore affirm the judgment of the Circuit Court ordering the Village of Long Grove to issue a liquor license to the plaintiff forthwith.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

ADESKO and JOHNSON, JJ., concur.


text:
    Warren Barr Supply Co., Plaintiff-Appellant, v. Haber Corporation et al., Defendants-Appellees.
    (No. 56153;
    First District (2nd Division)
    May 15, 1973.
    Pedersen & Houpt, of Chicago, (Herbert J. Linn, of counsel,) for appellant.
    Norman P. Wexler, of Wexler, of Chicago, for appellees.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This appeal is from a judgment that dismissed a suit by plaintiff, Warren Barr Supply Co., an Illinois corporation, against Ethel Haifa, the only one of five defendants who appeared and filed an answer. Plaintiff sought to recover from defendants the sum of $2,734.23 for fixtures and supplies which it had sold to the Haber Corporation.

In its complaint, plaintiff alleged that: “* * * Ethel Haifa, Pauline Haifa, Mae Haifa and Dora Haifa, each executed a personal unconditional guaranty of all debts and obligations of the Defendant Haber Corporation, to the plaintiff Warren Barr Supply Co. Said guaranty is dated the 10th. day of June, 1966, a copy of which is marked Exhibit B and made a part of this complaint.” In her answer, Ethel Haifa alleged that: “* * * This Defendant denies * * * she executed a personal guaranty, a copy of which is attached to the complaint * 6 *, and specifically denies that the signature appearing on the said guaranty, ‘Ethel Haifa,’ is the signature of this Defendant, and this Defendant denies specifically that she signed the said guaranty.”

Plaintiff did not file a reply. At the trial, Ethel Haifa made an oral motion to dismiss plaintiff’s suit on the ground that her answer alleged new matter, that is, an affirmative defense which required a reply. Plaintiff objected, arguing that the answer was merely a repetitious denial devoid of any new matter. The trial court, however, sustained the motion and dismissed plaintiff's suit. Before expiration of 30 days, plaintiff moved to vacate the dismissal and for an opportunity to file a reply. The motion was denied. ■ •

Seeking reversal, plaintiff presents three issues. First, whether Ethel Haifa’s answer set forth new matter that constituted, an affirmative defense to the complaint. Second, whether it was an abuse of judicial discretion for the trial court to dismiss plaintiff’s suit because it did not file a reply to Ethel Haifa's answer. Third, whether, under the circumstances of this case, it was an abuse of judicial discretion for the trial court to refuse plaintiff the opportunity to file a reply.

For its position on the first issue, plaintiff contends that Ethel Haifa’s answer did not state an affirmative defense. Therefore, it was error for the trial judge to dismiss the complaint for failure to file a reply. For her position, Ethel Haifa contends that her answer set forth new matter that constituted an affirmative defense and required a reply by the plaintiff.

New matter, in the answer of a defendant, refers to facts which are extrinsic to those alleged in a complaint. As thus meant, new matter refers to acts, transactions or happenings which are subsequent to those things complained about by the plaintiff: those which are not original to the transaction but independent of it; that is, occurrences which have arisen since the cause of action came into existence. 61 Am.Jur.2d Pleading § 153.

It is generally said that if what is alleged in an answer amounts to a denial, it is not new matter. (Stephens v. Conley (1914), 48 Mont. 352, 138 P. 189.) If the facts alleged in an answer can be proved under a denial, they do not constitute new matter and no reply is required. (Mauldin v. Ball (1883), 5 Mont. 96, 1 P. 409.) To require a reply, an affirmative defense consisting of new matter must either expressly or by implication admit the allegations of a complaint but allege facts that destroy the legal effect of the averments or defeat them. (61 Am.Jur.2d Pleading § 152.) The criteria for determining if a defense is of an affirmative nature is whether by its allegations a defendant gives color to his opponent’s claim and then asserts new matter by which the apparent right is defeated. (Horst v. Morand Brothers Beverage Co., 96 Ill.App.2d 68, 237 N.E.2d 732.) As a term of pleading, the expression “gives color” means the admitting of an apparent right in the opposite party. (Shipp v. Patten (1906), 123 Ky. 65, 93 S.W. 1033.) If there is reliance on new matter to defeat the apparent right, a reply is required. But if a complaint negatives the allegations of an affirmative defense, no reply is necessary. Riddle v. La Salle National Bank, 34 Ill.App.2d 116, 180 N.E.2d 719.

In our judgment, mere reflection about these principles dictates the conclusion that Ethel Haifa's answer did not allege new matter. The answer only denied plaintiff’s allegation that the named defendants had each executed a personal unconditional guaranty of all the debts and obligations of the Haber Corporation. Plainly, the allegations of plaintiff’s complaint adequately negatived what was asserted in the answer. No reply was necessary. Therefore, it was error for the trial.court to rule that Ethel Haifa’s answer alleged an affirmative defense that required a reply and that the failure to file one justified dismissal of plaintiff’s suit. Cunningham v. City of Sullivan, 15 Ill.App.2d 561, 147 N.E.2d 200; Baylor v. Thiess, 2 Ill.App.3d 582, 277 N.E.2d 154.

Having reached this conclusion, it is unnecessary that we resolve the other issues. The judgment is reversed and the cause is remanded for further proceedings consistent with the views expressed in this opinion.

Reversed and remanded.

STAMOS, P. J., and SCHWARTZ, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Redding (Impleaded), Defendant-Appellant.
    (Nos. 56656-56657 cons.;
    First District (3rd Division)
    May 24, 1973.
    James J. Doherty, Public Defender, of Chicago, (Bernard Schwartz, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago; (Kenneth L. Gillis and Sharon Grossman, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

DEMPSEY, P. J., took no part.