author: TRAPP, P. J.

text:
    Arlou Deterding, Administrator of the Estate of Marvin J. Deterding, Deceased, Plaintiff-Appellant, v. State Farm Mutual Automobile Insurance Company, a Corporation, Defendant-Appellee.
    Gen. No. 66-15.
    Fifth District.
    December 16, 1966.
    C. E. Heiligenstein, of Belleville, for appellant.
    Brady, Donovan & Hatch, of Belleville, for appellee.
   TRAPP, P. J.

This is an appeal from a judgment of the Circuit Court of the Fifth Judicial Circuit, St. Clair County, Illinois, denying recovery to plaintiff, Arlou Deterding, Administrator of the estate of Marvin J. Deterding, in a declaratory judgment suit to declare an automobile liability policy, issued by State Farm Mutual Automobile Insurance Company, defendant, to plaintiff’s intestate upon an automobile not involved in the accident, applicable to an accident caused by an uninsured motorist.

The defendant insurance company had issued two automobile liability insurance policies to plaintiff’s intestate, one, upon a Ford pickup truck, which plaintiff’s intestate was driving when it collided with the car of the uninsured motorist, and another, upon a Pontiac automobile owned by plaintiff’s intestate, not being driven at the time of the accident.

The trial court awarded plaintiff a balance of $9,000 of the $10,000 limit on the policy covering the pickup truck and denied any benefits under the policy covering the Pontiac automobile, and found that the uninsured motorist provisions of the latter policy were inapplicable.

We interpret the complaint and answer to mean that the “other insurance” provision set forth therein is a subordinate part of the uninsured motorist protection coverage. The policies are not set out in full and the parties do not meet face to face upon the issues.

Plaintiff states that, except for what are termed mutually repugnant escape clauses, it is not in dispute that there is total coverage in the amount of $20,000 under the two policies. Defendant takes the position that the “other insurance” clauses present a false issue and that the only issue before this court is whether plaintiff’s intestate is entitled to more than $10,000 under the Illinois uninsured motorist statute.

It would perhaps be most orderly to discuss the statutory issue first because, notwithstanding this was not the basis given by the trial court, the defendant contends that this issue is controlling.

The defendant’s theory is that uninsured motorist statutes, including that of Illinois, were designed to afford protection only up to the minimum statutory limits of $10,000 for bodily injury caused by financially irresponsible motorists. Implicit in this argument is that the statute somehow fixes a maximum amount that might be obtained as uninsured motorist protection. We view the statute as requiring a minimum protection, and as being entirely neutral on the matter of protection in excess of the statutory requirements.

The Illinois Statute, chap 73, § 755a (Ill Rev Stats), is as follows:

“Uninsured or hit-and-run motor vehicle coverage. § 143a.
“On and after the effective date of this amendatory Act of 1963, no policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in Section 7-203 of the ‘Illinois Motor Vehicle Law’, approved July 11, 1957, as heretofore or hereafter amended, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom, except that the named insured shall have the right to reject such coverage, and except that, unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.”

The section of the Motor Vehicle Law cited and referred to provides that the policy shall be:

. . of not less than $10,000.00 because of bodily injury to, or death of any one person in any one accident. . . .”

The statute does not require uninsured motorist protection. It permits the insured to reject the coverage. In effect it says this coverage must be offered and must be given unless rejected. The statute does not provide for a maximum protection and, indeed, it is doubtful that a valid statute could be designed to prevent parties from contracting for higher limits than those prescribed as minimum.

Considered in respect to this point alone, we do not consider the cases cited such as Travellers Indemnity Co. of Hartford v. Wells, 316 F2d 770, (which as to the Virginia statute involved was disapproved by the Virginia court in Bryant v. State Farm Mutual, 205 Va 897, 140 SE2d 817), and others, as applicable. The question in those cases was whether the law could be used to override policy provisions denying coverage in excess of that required by statute. If there had been no policy provision denying coverage in excess of the statutory minimum, there would have been no issue in the Wells case and similar cases.

We hold, therefore, that the Illinois uninsured motorist statute does not prevent motorists from obtaining, or companies from issuing, uninsured motorist protection in excess of the minimum requirements of the statute.

We are met next with the “other insurance” provisions of the policies which the plaintiff claims are repugnant to one another and should be disregarded, and the defendant claims that if both policies were applicable they would have to be prorated, resulting in payment of $5,000 under each policy.

The “other insurance” provision in the uninsured motorist coverage agreement is as follows:

“With respect to bodily injury to an insured while occupying an automobile not owned by a named insured under this coverage, the insurance hereunder shall apply only as excess insurance over any other similar insurance available to such occupant, and this insurance shall then apply only in the amount by which the applicable limit of this coverage exceeds the sum of the applicable limits of liability of all such other insurance.
“Subject to the foregoing paragraph, if the insured has other similar insurance available to him against a loss covered by this coverage then the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable under this coverage for a greater proportion of the applicable limits of liability of this coverage than such limit bears to the sum of the applicable limits of liability of this insurance and such other insurance.”

Plaintiff contends that two such identical clauses are repugnant to one another for if each were followed both policies would escape liability. We do not agree that the clauses are repugnant to one another.

In the first paragraph of the “other insurance” clauses reference is made to the insured occupying a nonowned automobile. It there states, in effect, that it shall be excess insurance and presumably the insurance upon the automobile involved in the accident would be primary. Thus, if the insurance upon the vehicle involved has a limit of $10,000 and the insurance upon the occupant had a limit of $15,000, the insurance upon the nonowning occupant would apply after the $10,000 policy had been used in payment of the liability established.

It should be noted that Jensen v. New Amsterdam Ins. Co., 65 Ill App2d 407, 213 NE2d 141, on 145, overruled Economy Fire & Casualty Co. v. Western Ins. Co., 49 Ill App2d 59, 198 NE2d 723, to the extent that the earlier case held without reservation that where both insurance policies contain the same provisions with respect to “other insurance,” they are to be disregarded as mutually repugnant and liability prorated. The later opinion held the insurance upon the named car was “primary” and the other insurance secondary.

We approve the language in Jensen v. New Amsterdam Ins. Co., 65 Ill App2d 407, 213 NE2d 141, at 145, as follows:

“We believe it imperative and essential that the scope of the respective policies, the status of the insured thereunder, and all other pertinent factual circumstances attendant with liability under the circumstances of each case, must be considered in connection with the construction of the respective policies. The applicable clauses of the respective policies should not be construed in a factual vacuum.” (Emphasis supplied.)

The question of the repugnancy of the clauses of the second paragraph of the “other insurance” clauses remains. This paragraph adds two conditions: First, the damages, which are not heretofore referred to, shall not exceed the higher of the applicable limits of the policies involved, and, second, the company shall not be liable for a greater proportion than the limits of its policy bear to the total insurance involved.

Taking the example first used of limits of $10,000 upon the named automobile, and $15,000 on the nonowner occupant, the damages should be taken as not exceeding $15,000. Second, the issuing company on the policy quoted would be liable for not to exceed three-fifths of the damage.

In the present case, if two different companies were involved, with an occupant of a nonowned automobile, where there are two $10,000 limits, the damages could not be taken to exceed $10,000. It is not the pro rata clause which limits the liability here. If it were not for the clause construing damages, the total limits of insurance would be $20,000 and the company issuing the policy with this clause would owe one-half.

The situation here involved cannot be expected to occur too frequently because in most cases there will be a named vehicle which would be the same as a nonowned vehicle when the secondary insurance becomes applicable. In such case, the first and second paragraphs would clearly apply as above outlined.

Here the question is whether the entire “other insurance” provision is, or is not, applicable. The two clauses taken together say that as to an insured occupying an automobile which he does not own, the said insured’s coverage is excess or secondary, and subject to this (second paragraph) the total damages do not exceed the higher of the applicable policies, and the companies shall prorate.

Here the exclusion obviously applies to an “insured while occupying an automobile not owned by a named insured.” Such is not the case before us. The named insured did own the automobile involved in the accident. He was occupying an automobile owned by him as named insured. The exclusion applies only if bodily injury occurred while the insured was occupying an automobile not owned by a named insured under this coverage.

It may also be argued that the second paragraph has no connection with, and is entirely independent of the first. This would be strange because the company would then be stating that it would prorate when it was primary coverage. Additionally, it chose in some form to tie the two paragraphs together by the phrase “subject to the foregoing paragraph.”

While this situation may not have been considered in designing the policy, the defendant here saw fit to issue two separate policies on two separate automobiles owned by the plaintiff. Under these facts, clauses designed to prevent the paying of a disproportionate amount of a loss which is properly shared with another company should not be resolved against the insured.

The general rule is properly stated in Caster v. Motors Ins. Corp., 28 Ill App2d 363, 171 NE2d 425:

“The basic question before us is one of construction of the insurance policy referred to. Insurance policies are construed liberally in favor of the insured and strictly as against the insurer. (Sheffer v. Suburban Cas. Co., 18 Ill App2d 43, 46, 151 NE2d 429.) The burden is on am, insurer to show affirmatively that the loss is within the exclusion (Goldfarb v. Maryland Cas. Co., 311 Ill App 568, Wilson v. Nat. Auto & Cas. Ins. Co., 22 Ill App2d 34, 37, 159 NE2d 504).” (Emphasis supplied.)

We have not considered in detail a number of the authorities cited for the reason that the statutes involved, the policy situations involved and the factual situations do not appear to us to be pertinent to the situation at hand.

This is a declaratory judgment suit and the record does not make it clear what the actual damages are, or what the amount of the judgment should be if both policies are applicable to the loss to the full extent of their limits.

The judgment of the Circuit Court is reversed insofar as it declares that the uninsured motorist provisions of Policy No. 6315-281-A15-13A, issued on the 1960 Pontiac automobile owned by Marvin J. Deterding, deceased, are not applicable, with directions to declare said policy provisions applicable to the amount of $10,000. The judgment is otherwise affirmed.

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

SMITH and CRAVEN, JJ„ concur.


source: Caselaw Access Project

author: EBERSPACHER, J.

license: Public Domain

text:
    Department of Public Works and Buildings of the State of Illinois, For and On Behalf of the People of the State of Illinois, Petitioner-Appellant, v. Eugene F. Melling, et al., Defendants-Appellees.
    Gen. No. 64-89.
    Fifth District.
    December 23, 1966.

      William G. Clark, Attorney General of the State of Illinois, of Chicago (Harold G. Andrews, Richard E. Quinn, and Horace L. Calvo, Special Assistant Attorneys General, of counsel), for appellant.
    O’Neill and O’Neill, of Alton (John T. Roach, of counsel) , for appellees.
   EBERSPACHER, J.

This is an appeal from a decision of the County (now circuit) Court of Madison County, sitting without a jury, in a condemnation proceeding in which judgment in the sum of $25,469 was entered against petitioner and in favor of defendants. It is appellant’s contention that the court erred in denying petitioner’s motion for trial by jury.

The record shows that on October 8, 1956, the Department of Public Works and Buildings of the State of Illinois filed a petition for condemnation in the County Court of Madison County, Illinois, seeking to obtain several parcels of land for the construction of a highway improvement, including property belonging to the defendants and leased to the Gallaway Outdoor Advertising Company.

On August 7, 1958, petitioner filed a motion for immediate vesting of title to the property. This motion was heard August 18,1958, the motion was allowed, finding the amount of preliminary compensation for defendants Melling at $2,750 less $250 awarded to lessee. The order vesting title was entered on September 30, 1958. On October 8, 1958, the defendants filed their answer. The record does not disclose that either petitioner or defendants made a formal demand for a jury trial. However, the trial judge on his own motion set this cause for hearing before a jury on June 1, 1959. The case was called for trial and a jury was impaneled with no objections being raised by any of the parties to the proceeding. The jury found the value of the land taken to be $6,250, apportioning $5,600 to the defendants and $650 to the lessee, Gallaway Outdoor Advertising Company.

On June 19, 1959, defendants Melling filed a motion to set aside the verdict and for a new trial. The trial judge took the motion under advisement. In the interim, however, on October 5,1959, the court accepted the verdict in favor of the lessee and the sum of $650 was paid out of the funds on deposit, to the Gallaway Outdoor Advertising Company. On January 8, 1962, the court conducted a hearing on the motion for new trial and granted a new trial. Defendant’s post-trial motion made no objection to the mode of the trial, i. e., trial by jury, but complained generally that the verdict was inadequate and contrary to defendants’ theory of the case. The record does not disclose, nor are we informed, as to the reason a new trial was granted.

On April 29, 1963, the trial judge, on his own motion, entered an order setting the case for hearing before the court without a jury on May 15, 1963. Thereafter, the case was continued from May 15, 1963, to June 10, 1963, to June 17, 1963, and on that day petitioner moved the court for leave to file its demand for trial by jury, instanter, filing in support thereof an affidavit executed by the former special assistant Attorney General, who had tried the original case. That affidavit recited, among other things, that this matter had previously been tried before a jury and that the new trial ordered by the court should also be a jury trial; that the ultimate issue to be determined was the amount of compensation to be paid to the defendants, and that such payment would be made from public funds, and that petitioner verily believed that justice would be best served if the compensation to be awarded defendants was determined by a jury; and that no hardship would be imposed upon the defendants, and no substantial rights of defendants would be prejudiced by trial by jury.

Upon denying the motion and objections of petitioner, the court proceeded to hear the case without a jury the same day, but recessed the case until June 20, 1963, from Monday to Thursday, at which time the hearing was concluded and the case taken under advisement. On August 20, 1963, the court ruled that the defendants should have and recover from the petitioner, as just compensation for the land sought to be condemned, the sum of $25,469.

Petitioners contend that since the cause had been previously tried before a jury that they had a right to assume that any subsequent trial would be before a jury and point out that the record does not disclose that any hardship would be imposed on the defendants or that their rights would be prejudiced by a jury trial. Defendants contend that there was no abuse of discretion in denying petitioner’s request for a jury, since it was only made on the day of the trial, and that the denial of petitioner’s motion for a jury was tantamount to a finding that defendants’ rights would be prejudiced.

The rule is well settled in Illinois that a trial court should not deny the right to a jury trial when there is no showing of inconvenience to the court or to the parties litigant or prejudice to any rights in any manner whatsoever, and that trial by jury is a favored mode of trial.

We believe the case of Hartsock v. Bress, 40 Ill App2d 66, 189 NE2d 613, is parallel to the case at hand. It involved an appeal wherein a complaint under the Paternity Act was filed against appellant in the office of the Clerk of the County Court of Madison County on October 28, 1960. Thereafter, although the formal record did not disclose any prior jury demand by any of the parties, and after all parties appeared before the court and the matter continued to the next setting, the court ruled, as in this instant appeal, that the case be set before a jury. After having done so, and after the parties were advised that the case was set before a jury, and after the parties had relied upon the setting of the case before a jury, the court withdrew the jury and after continuing the case generally, denied the appellant’s subsequent petitions for a jury trial and proceeded to try the case without a jury.

The court reversed the trial judge in Hartsock v. Bress (supra) and remanded the case with directions that the issue be tried by a jury, saying:

“. . . Section 59 of the Practice Act provides that upon good cause shown, in the discretion of the court and on just terms, ‘additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment’; and Supreme Court Rule 8 provides for a similar extension of time for the doing of any act required by the rules.
“Our Supreme Court, in Hudson v. Leverenz, 10 Ill 2d 87, 139 NE2d 255, which is its last expression which we have found on the subject, has said ‘even though a plaintiff does not file his jury demand “at the time suit is commenced” or a defendant “at the time of filing his appearance,” this court has said that the right to have a jury is not necessarily foreclosed.’ See page 92 of 10 Ill2d, page 257 of 139 NE 2d. The court then went on to say, in the Hudson case, that a statute regulating the right of jury trial ‘should be liberally construed in favor of the right and the inclination of the court should be to protect and enforce the right.’
“(1) We believe that the substance of the court’s ruling in the Hudson case and in previous opinions indicates that a trial court should not deny the right to a jury trial when there is no showing of inconvenience to the court or the parties litigant or prejudice to any rights in any manner whatsoever. This understanding of the rule has been applied by the Appellate Court, Third District, in Dawson v. Maxwell, 13 Ill App2d 228, 141 NE2d 642.
“(2) In the instant case, there is nothing in the record which shows in any way that the granting of a jury trial would have inconvenienced the court or parties litigant or prejudiced any rights in any manner whatsoever.
“We further point out that in this case, where apparently the court on its own motion indicated that a jury trial would be held, and then, apparently withdrew the jury, we have a situation which is closely akin to that in which a plaintiff waives a jury after having demanded the same. In such case, as noted above, section 64 of the Practice Act requires that the defendant shall be granted a jury trial upon demand being made promptly after being advised of the waiver.
“In this case there is nothing in the record to indicate any notice to the defendant that the court was going to proceed without a jury but even if there had been some notice, it appears, in our judgment, that the defendant did promptly request a jury within the spirit and meaning of Section 64.”

Since the ruling in Hartsock v. Bress, (supra), the Appellate Court, First District, in the case of Cross v. Cross, 44 Ill App2d 187, 194 NE2d 487, joined the liberal attitude of the Appellate Courts towards allowance of jury trial demands, although not strictly filed in compliance with statutory requirements.

Defendants point out that in the Hartsock and Dawson cases, the persons seeking to file a jury demand took some affirmative measure to do so well in advance of a scheduled trial and did not wait until the day of the trial to do so. The record shows this case had laid dormant for approximately sixteen months until the case was placed on the non jury docket on April 29, 1963. The record does not show when petitioner was advised of this action. It does show that the case was filed and tried originally by other counsel under another Attorney General. Naturally petitioner’s new trial counsel presumed the petitioner’s right to jury trial would be protected at the new hearing, and it took some time for counsel to search the record to ascertain the nonexistence of previous jury demands and to gather information necessary to prepare a motion for a jury trial and the supporting affadavit. At the most the delay was approximately 45 days, in a case that had been pending six and one-half years. For more than sixteen months neither party had made any effort to bring this cause to a timely conclusion.

There is nothing in the record to substantiate defendants’ inference of inconvenience or hardship. They filed no pleading alleging inconvenience or prejudice, nor did the court make any finding in this regard in its order denying petitioner’s request for a jury trial. It is apparent from the chronology of the case, ascertainable from the record, that time was not of the essence either to the court or the defendants, particularly so, when after the first day, a Monday, the case was recessed until the following Thursday.

In the case before us, not only had the court set this case for hearing before a jury prior to trial, and not only did petitioner rely on this action as did appellant in Hartsock v. Bress, (supra), but here, the case actually proceeded to trial without objection, either before the jury was impaneled, during the course of the trial, or after the jury returned its verdict. Thereafter, petitioner normally assumed that his right to jury trial in a subsequent trial was fully protected. No action on the part of the petitioner or the defendants could possibly be construed as having waived trial by jury, once that trial had taken place. The only appropriate mode for the second trial following the granting of the new trial, was another trial by jury. There is nothing in this record tending to show that the granting of a jury trial would have inconvenienced the court or parties-litigant, or prejudiced any rights in any manner whatsoever. Quite the opposite, however, the record in this case shows that petitioner relied upon a jury trial, made an affirmative showing of facts justifying and requiring the mode of trial to be trial by jury and that the denial of a jury trial in the second trial in this cause was a detriment to the petitioner.

We conclude from the cited cases, that once a case has been tried before a jury, without objections to the mode of trial by any of the parties, and a motion for new trial is allowed, that the subsequent trial should also be by jury unless all parties interested therein have specifically waived a jury trial; and that no affirmative action is required of any party, to have the case retried before a jury, rather than before the court.

This cause is reversed and remanded for further proceedings not inconsistent with this opinion.

GOLDENHERSH and MORAN, JJ., concur.

       The State of Illinois did not have a right to trial by jury under the Illinois Constitution of 1870 or the Illinois Eminent Domain Act, Ill Rev Stats 1955, c 47, § 1, until that Act was amended in 1957. See Department of Public Works & Buildings v. Kirkendall, 415 Ill 214, pp 221-223, 112 NE2d 611, pp 614, 615.


author: JUSTICE BURKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. David Lannes, Defendant-Appellant.
    Gen. No. 50,500.
    First District, Second Division.
    December 6, 1966.
    J. Waldo Ackerman, of Springfield, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Morton Friedman and E. Roger Horsky, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: ME. PEESIDING JUSTICE BEYANT

text:
    Angelo D. Mistretta, et al., Plaintiffs-Appellants, v. Village of River Forest, Defendant-Appellee.
    Gen. No. 50,739.
    First District, Second Division.
    December 6, 1966.

      Sidney Z. Karasik and Paul Peter Black, of Chicago, for appellants.
    Charles L. Michod, of Chicago, for appellee.
   ME. PEESIDING JUSTICE BEYANT

delivered the opinion of the court.

This appeal is from a declaratory judgment action to change the zoning of the appellants’ property, under the zoning ordinance of the Village of Eiver Forest, from a single-family dwelling classification to that which would permit multiple-family apartment use. Appellants’ theory of the case is that the restriction of their property to single-family use is an arbitrary and unreasonable classification in view of its location and the nearby surrounding uses, and that, by virtue of this classification the appellants were deprived of the highest and best use of their property.

The subject property is a vacant, unimproved parcel of land, rectangular in shape, fronting on the west side of Forest Avenue, Eiver Forest, 50' by 180', comprising 9,000 square feet.

To its north, the subject property abuts a strip of land 125 feet in north-south depth, fronting on North Avenue and extending east and west along North Avenue from Thatcher Avenue to Forest. This tract, which is zoned “C” (business) is a segment of a longer business zone which runs east and west along the south side of North Avenue (the northern corporate boundary of the Village) from the Des Plaines River on the west (the western boundary) to Harlem Avenue on the east (the eastern limit). Abutting the appellants’ lot is a town house development consisting of five buildings which occupy the northwest corner of Forest and North Avenues.

Directly across the street from the appellants’ lot there is a single-family residence that has been converted to two-family use and a three-unit apartment building. Appellants’ lot is located in a single-family “A” zone area and the lot, on its south, is contiguous to a solid residential area with many homes in the $75,000 to $130,000 class.

There are no commercial uses directly east of the subject property, (although there are commercial uses on North Avenue to the northeast) for three-fourths of a mile nor within one and a half miles south of the subject property. All the land within this area one and a half miles south and three-fourths of a mile east of the subject lot is improved with residential dwellings and with schools and parks. West of the subject lot to the Village limits the land is zoned “A” single-family use, and the only building west of the lot is used as a garage for a single-family dwelling located on North Avenue. The commercial instrusion nearest to the subject lot in River Forest is the Paddle Wheel Restaurant at the southeast corner of North and Thatcher, a block from the Mistretta lot.

The Zoning Board of Appeals in River Forest in September, 1964 determined in its report that an amendment reclassifying the real estate to multiple-family use should not be granted. Some of the reasons the Zoning Board of Appeals gave for unanimously recommending that the application be denied were that, (1) an apartment use would depreciate in value the single-family residences to the south of the subject property; (2) granting the amendment would add an extra load to municipal services, such as sewer and water, and would aggravate an already congested traffic picture on Forest Avenue; (3) the subject property was zoned for single-family use in 1922 when the original zoning ordinance was adopted in River Forest, and in 1959, when the zoning was restudied and a new zoning ordinance was adopted, no change was made in the zoning of the subject property; (4) the appellant, Angelo D. Mistretta, a resident of the Village and an attorney, either knew or should have known that the property was zoned for single-family use when he purchased it; (5) no evidence was produced which would tend to show that the change in zoning was required for the public good.

The law on this subject is pellucid. The Illinois Supreme Court has said on many occasions that zoning ordinances are presumed to be valid. Gregory v. City of Wheaton, 23 Ill2d 402, 178 NE2d 358; Galpin v. Village of River Forest, 26 Ill2d 515, 187 NE2d 233; Cities Service Oil Co. v. Lake County, 26 Ill2d 176, 186 NE2d 265. In Exchange Nat. Bank v. Village of Niles, 24 Ill2d 144, 180 NE2d 462, the Supreme Court in refusing to zone certain property for multiple-family use in a single-family zoned area, said at page 147:

“The relevant factors in determining the validity of a zoning ordinance are familiar, as are the governing legal principles, and they need not be restated. Dominant among these principles is the repeated doctrine that a zoning ordinance is presumed to be valid and that the burden is upon the person who attacks its validity to establish by clear and affirmative evidence that it is arbitrary. The courts will not overrule the decisions of the municipal authorities where the reasonableness of the classification is debatable. Elmhurst National Bank v. City of Chicago, 22 Ill2d 396.”

It is the contention of the appellants on this appeal that the findings and judgment of the trial court are against the manifest weight of the evidence. As they state the proposition in their brief, “Thus, the continuity of the apartment belt breaks abruptly at Forest Avenue and cuts off at the plaintiffs’ east lot line. The arbitrary and discriminatory aspect of the zoning of plaintiffs’ property is instantly highlighted by the lack of any apparent justification for the failure of the ‘B’ belt to continue on across the plaintiffs’ property to the western terminus of the Village, just as the ‘C’ belt does.”

The factors that are taken into account in determining the validity of a given zoning are as well established as the presumption of validity of the zoning classification; the extent to which the value of the subject property is diminished by the limitations; the extent to which the removal of the limitation would depreciate the value of other property in the area; the suitability of the property for the zoned purposes; existing uses and zoning of nearby property; the iength of time under the existing zoning that the property has remained unimproved, considered in the context of land development in the area; the relative gain to the public as compared to the hardship imposed on the individual property owner; and the extent to which the ordinance promotes the health, safety, morals or general welfare of the public. No one of these factors is controlling, but each must receive due consideration. LaSalle Nat. Bank v. County of Cook, 12 Ill2d 40, 145 NE2d 65; Hartung v. Village of Skokie, 22 Ill2d 485, 177 NE2d 328.

At the hearing on the petition for a declaratory judgment to change the zoning of the subject property, testimony was presented by appellant, Angelo D. Mistretta, that he had purchased the lot in question for $16,000 with the purpose of constructing an apartment building of up to ten units. He stated that at the time he purchased the lot, he did not know what the zoning was for the lot, although he was a resident of the Village and a practicing attorney. Julius V. Czochara, a realtor and appraiser, also testified on behalf of appellants. Czochara stated that the property as zoned was worth approximately $16,000, but that it would be worth around $85,000 if rezoned so that an apartment building could be constructed on the site, and that the construction of the proposed apartment building would have a very slight effect on the residential area to the south, or on traffic conditions.

Don C. Shafer, a city planning consultant, testified for the Village. Shafer stated that, “My opinion is that this piece of property can be clearly used for a single family use. My opinion is based on the fact that in no place in the Village of River Forest, do you see any evidence of where a commercial zone or a multiple zone is clearly wedged into a residential area, and particularly so with the property that abuts the subject site to the north. There is a very definite line, and I wish to stress this definite line of land use, which are the town houses. ... If this (encroachment into the residential area) was permitted for other than single-family use, this would be a clear invasion of a foreign type of land use, particularly multiple into a very high class residential area.” The witness also stated that the proposed building would be objectionable as to the use of school, public streets, and would affect utilities, sewers, water, traffic and parking.

Alfred T. Savino, E. A. Arnesen, Joseph J. Archibald, John J. Cogan, and Martin C. Hausman, all residents in the immediate area, testified that they had bought their homes in reliance on the single-family zoning restriction, and some of them stated that they believed that the construction of an apartment building would lower the value of their property.

We reiterate that the zoning function is primarily the province of the municipal body. Absent some showing of arbitrariness, caprice, or lack of relation to the public morals, safety and welfare, we will not disturb the legislative action of the municipality. Nor where there is room for a legitimate difference of opinion concerning the reasonableness of an ordinance governing the use of private property or where such question of reasonableness is fairly debatable, will we disturb the decision of the municipality. Trust Co. of Chicago v. City of Chicago, 408 Ill 91, 96 NE2d 499; Cities Service Oil Co. v. Lake County, supra.

While it is true that the appellants’ property would be worth more if the property was rezoned, that is the case in nearly every zoning case in which the use of land is restricted, and is only one of the several factors to be considered. First Nat. Bank of Lake Forest v. County of Lake, 7 Ill2d 213, 130 NE2d 267; People ex rel. Alco Deree Co. v. City of Chicago, 2 Ill2d 350, 118 NE2d 20. Although, in this case there was no testimony that the best use of this property was for single-family dwelling, there was testimony that the erection of an apartment building would lower the value of the residences to the south and would place an added burden on the sewer, utilities and water in the area. On the basis of this testimony we cannot say that the action of the Village of River Forest was capricious or arbitrary. For that reason we hold that the appellants have failed to sustain the burden of overcoming the presumption of validity of the zoning ordinance in question.

The judgment of the trial court is affirmed.

Judgment affirmed.

LYONS and BURKE, JJ., concur.


text:
    Ignacio Chavez, Plaintiff-Appellee, v. Elgin, Joliet and Eastern Railway Company, a Corporation, Defendant-Appellant.
    Gen. No. 50,850.
    First District, Second Division.
    December 6, 1966.
    Stevenson, Conaghan, Haekbert, Rooks and Pitts, of Chicago (Robert L. Hesse, of counsel), for appellant; Allan S. Gould, of Chicago (John G. Phillips and Sidney Z. Karasik, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: MR. JUSTICE DEMPSEY

text:
    Nathaniel J. Reed, Jr., Plaintiff-Appellant, v. Bud R. Albanese, Individually and d/b/a North Loop News, Defendant-Appellee.
    Gen. No. 50,900.
    First District, Third Division.
    December 8, 1966.

      Mack P. Manning, and Ross and East, of Chicago (George M. Petrich, of counsel), for appellant.
    Sidney S. Schiller and Paul C. Ross, of Chicago, for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

This is an action for libel by the plaintiff, Nathaniel Reed, against Bud Albanese, individually and doing business as the North Loop News. The defendant filed an answer, a motion for summary judgment and a supporting affidavit. The plaintiff filed a eounteraffidavit. Summary judgment was granted and the plaintiff has appealed.

The basis of Reed’s claim is an article published in the North Loop News on February 13, 1964, which he alleged was wholly false:

“Reed Jailed for Housing Violations
“Municipal Housing Court Judge Richard A. Napolitano last Friday issued a warrant of commitment to the House of Correction for Nathaniel J. Reed, Jr., in lieu of $2400.00 in fines for housing violations in the apartment building at 62-64 West Huron.
“Reed was found guilty of failing to provide additional means of egress, fire walls in stairwells and fireproof partitions and for failing to obtain a permit to make fire repairs.”

The defendant’s answer and his affidavit in support of the summary judgment motion alleged that the plaintiff was unknown to him, that the article was based on a release furnished by a news service and was privileged because it was a fair, true, correct and impartial report of a public proceeding conducted in the First Municipal District of the Circuit Court of Cook County. A certified copy of the court order was attached to the affidavit as an exhibit:

“CITY OF CHICAGO v. NATHANIEL J. REED, JR. 228 North La Salle St.
NO. 63 MC 443515 QUASI CRIMINAL
“This cause coming on for further proceedings herein, it is considered by the Court that the plaintiff have judgment on the finding of the Court entered herein and it is considered by the Court that the plaintiff have and recover of and from the defendant a fine in the sum of TWENTY-FOUR HUNDRED DOLLARS ($2400.00), . . . and that execution issue for the amount of said fine. And it appearing to the Court that said fine accrued to the plaintiff in consequence of the violation by defendant of the ordinance of the plaintiff described in the complaint herein . . . the Court finds . . . that said defendant has been duly and regularly convicted of the violation of said ordinance according to law, and that any person convicted of a violation of said ordinance, may, under the law, be imprisoned in the House of Correction of said City for non-payment of any fine imposed for such violation.
“Order warrant arrest and commitment to House of Correction until fine and costs paid or worked out at TWO DOLLARS ($2.00) per day providing the commitment shall not exceed SIX (6) MONTHS.”

The plaintiff’s counteraffidavit stated that he was an attorney and as such he was the registered agent of a building corporation; that as the agent he was sued by the City of Chicago for violations of the City’s Building Code and that, although a fine had been imposed, he was never confined in jail. The plaintiff’s argument on appeal is that the summary judgment was improper because his counteraffidavit raised a genuine issue as to whether he was jailed and this factual issue was material in determining whether publishing the newspaper article was libelous.

Summary judgment must not be granted if the pleadings, affidavits and exhibits show that there is a genuine issue as to any material fact. Ill Rev Stats (1965) c 110, § 57 (3). The documents in the present case show that there is a genuine issue of fact because the article’s headline said Reed was jailed and he flatly denied that he was. The question, however, is whether this issue is a material one and this depends on whether the article is libelous per se. The plaintiff alleged only general damages: that as an attorney and as a corporate agent he was injured in his businesses and reputation. If an article is libelous per se it is not necessary to allege special damages. Lorillard v. Field Enterprises, Inc., 65 Ill App2d 65, 213 NE2d 1 (1965); Cook v. East Shore Newspapers, Inc., 327 Ill App 559, 64 NE2d 751 (1946). But if an article is not libelous per se the complaint must allege the special, specific damage that resulted from its publication, and the failure to do so is a fatal defect. Hambric v. Field Enterprises, Inc., 46 Ill App2d 355, 196 NE2d 489 (1964); Parmelee v. Hearst Pub. Co., Inc., 341 Ill App 339, 93 NE2d 512 (1950).

The courts of Illinois have formulated a general definition of libel per se, and the decisions in the particular cases delineate the essence of the concept: words so obviously and naturally hurtful to the person aggrieved that proof of their injurious character can be, and is, dispensed with. See, e. g., Wade v. Sterling Gazette Co., 56 Ill App2d 101, 205 NE2d 44 (1965) and Foster v. Boue, 38 Ill App 613 (1890). As a practical matter the categories of words which constitute libel per se will usually be those which, if spoken, were slander per se at common law. Whitby v. Associates Discount Corp., 59 Ill App2d 337, 207 NE2d 482 (1965).

In determining if an article is libelous per se the words complained of must be construed in the context of the article as a whole, and in doing this the headline of the article must be considered together with the text of the article. Wade v. Sterling Gazette Co., supra; Kulesza v. Chicago Daily News, Inc., 311 Ill App 117, 35 NE2d 517 (1941). The words must be read in their natural and obvious sense and if they are capable of an innocent interpretation they must be declared nonactionable at law. John v. Tribune Co., 24 Ill2d 437, 181 NE2d 105 (1962); Hambric v. Field Enterprises, Inc., supra.

The article was not “wholly false” as the plaintiff alleged. With the exception of the headline “Reed Jailed for Housing Violations” the article fairly, substantially and accurately reported the proceedings and the judgment of the court. To this extent the publication was privileged and the privilege could only be defeated by proving that the publication was motivated solely by malice. Lulay v. Peoria Journal-Star, Inc., 34 Ill2d 112, 214 NE2d 746 (1966); Judge v. Rockford Memorial Hospital, 17 Ill App2d 365, 150 NE2d 202 (1958). The burden of proving actual malice was on the plaintiff and since his counteraffidavit did not create an issue of fact as to malice the privilege was established as to the matters printed in the body of the article.

A reader of common and reasonable understanding (Hotz v. Alton Telegraph Printing Co., 324 Ill App 1, 57 NE2d 137 (1944)) by reading the headline alone could, due to its brevity, conclude that Reed had been placed in jail, and it is this imputation that the plaintiff seeks to make the basis of his action. However, when the headline is read together with the body of the article and the innocent construction rule is applied, the article as a whole does not impute that the plaintiff was placed in jail. The relevant text of the article states that a Municipal Court judge “. . . last Friday [a week before the publication of the article] issued a warrant of commitment to the House of Correction for Nathaniel J. Reed, Jr., in lieu of $2400.00 in fines for housing violations. . . .” Violations of the Building Code are initially punishable only by fine and then, if the fine remains unpaid, by a jail commitment to work out the fine. Everyone is presumed to know the law (DuMond v. City of Mattoon, 60 Ill App2d 83, 207 NE2d 320 (1965)), and the reader of common and reasonable understanding would be presumed to understand that the quoted statement meant that the Municipal Court ordered Reed committed unless he paid a $2,400 fine, for “in lieu of” denotes instead of, in place of, in substitution for the penalty initially imposed. Carey v. Retirement Board of San Francisco, 131 Cal App2d 739, 281 P2d 25 (1955); Webster’s New International Dictionary (2nd ed 1949). When the reader considers the headline in conjunction with the fuller explanation of the Municipal Court proceeding given by the text of the article, he is able to read the two as consistent. He understands that the headline, instead of declaring that Reed had been placed in jail, epitomizes the court order committing him and that the condition on which the commitment was to begin is set forth in the text. Although neither the text nor the headline makes clear whether Reed was still entitled to avoid commitment by paying the fine or whether he had defaulted in payment and had been committed, and although either construction may seem reasonable if the innocent construction rule is not applied, under that rule the article must be interpreted as not charging Reed with having been committed.

Apart from the application of the innocent construction rule, in the circumstances of the case the article was not libelous per se. Unlike Herhold v. White, 114 Ill App 186 (1904), the offense for which the plaintiff was supposedly jailed was not left unspecified. The reader was not left to assume that the plaintiff had committed some serious criminal offense for which imprisonment was the proper punishment. The headline stated that he was jailed for housing violations and the article made clear that he was found guilty of such violations and specified their nature. The violations did not involve moral turpitude and were not infamous crimes nor indictable offenses. (Contrast: Adle v. Herald Co., 36 NYS2d 905 (1942) and Ray v. Times Pub. Co. (Tex), 12 SW2d 165 (1929).) The violations were not crimes at all; they were quasi-criminal offenses. When a governmental agency uses quasi-criminal proceedings to obtain penalties for violations of public laws, a defendant is entitled to invoke his constitutional privilege against self-incrimination (City of Chicago v. Berg, 48 Ill App2d 251, 199 NE2d 49 (1964)), but this principle is based on concern for the rights of a defendant not on society’s feelings about the seriousness of his conduct. The offenses for which the headline said he was jailed were relatively minor from the viewpoint of the public and the institution to which the article said a warrant had been issued for his commitment was not a penitentiary but the House of Correction — and this only if his fine was not paid. If the article charged Reed, falsely, with having been put in jail, it cannot be said that this would naturally induce an evil opinion of him in the mind of the average reader and therefore injury to his reputation cannot be presumed as a matter of law. If he was injured by the false statement that he was jailed, apart from the injury occasioned by the true statement that he was convicted of housing violations, the plaintiff should have alleged the special damage that resulted from publication of the false statement.

Finally the language complained of does not come within the rule that words written of a plaintiff in his trade or profession which tend to impair his credit and reputation and injure him in his business are libelous per se. (See: Hudson v. Slack Furniture Co., 318 Ill App 15, 47 NE2d 502 (1943); Barth v. Hanna, 158 Ill App 20 (1910).) The headline somewhat, and the article more so, implied that the owner or manager of the building ignored the safety requirements of the City’s ordinance, and an inference could be drawn that the owner or manager was not fit to manage the building. But in his counteraffidavit the plaintiff denied that he had title to the building and he did not allege that as the registered agent of the corporation-owner his duty was to guide management policy or to oversee management of the building. The words which might imply lack of business competence were not used of the plaintiff in relation to his business either as a registered agent or as an attorney, and so are not libelous per se. Campbell v. Morris, 224 Ill App 569 (1922).

The issue of Reed’s confinement, although a genuine issue of fact, was not a material issue in the determination that on the basis of the pleadings, affidavits and exhibit the defendant was entitled to judgment as a matter of law. Since the article was not libelous per se the plaintiff’s failure to allege special damages entitled the defendant to judgment. Hambric v. Field Enterprises, Inc., supra.

The summary judgment is affirmed.

Affirmed.

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


author: MR. JUSTICE McCORMICK

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jack L. Wesselmann, Defendant-Appellant.
    Gen. No. M-51,503.
    First District, Fourth Division.
    December 8, 1966.

      William R. Bowes, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

Charge : Drag racing.

Defense at Trial: General denial of guilt.

Judgment: After a bench trial before a magistrate the court found the defendant guilty, fined him $45.00, and placed him on probation for six months.

Points Raised on Appeal: The charge was not proved beyond a reasonable doubt.

Evidence : Testimony of State witness.

Raymond Giovannelli, a police officer of the Village of Niles, testified that on February 5, 1966, at about 12:30 a. m., he was in the vicinity of Milwaukee Avenue and Waukegan Road, going north on Milwaukee. A verbatim account of the officer’s testimony follows:

Witness: I was proceeding north on Milwaukee and I observed a Plymouth operated by Mr. Wesselmann in the inside northbound lane of Milwaukee Avenue. This Plymouth operated by Mr. Anderson was in the outside lane of Milwaukee Avenue northbound. Mr. Wesselmann passed him at a speed of approximately 45 miles per hour.

Q. What is the speed limit at that location ?

A. 40 miles per hour.

Q. After he passed Anderson, what did you observe further?

A. I observed Mr. Anderson increase the speed of his automobile to catch up to Mr. Wesselmann. At this time they were abreast and they both slowed to a speed of 30 to 35 miles per hour.

Q. Side by side on Milwaukee Avenue ?

A. Yes, sir.

Q. What did you observe further, if you recall?

A. Once they were abreast, remaining abreast, they both increased their speed to approximately 45 miles per hour and stayed abreast and then they approached a red light at Harlem and Milwaukee and they came to a stop.

At this point the police officer arrested the two defendants.

Jack J. Wesselmann testified in his own behalf that on the night in question he was traveling north on Milwaukee Avenue on his way home; that he had turned into Milwaukee at the cemetery road and Touhy Avenue, at which time he had seen a Plymouth car stopped in the right lane; that he had passed the car as he was going north on Milwaukee at a speed of 40 miles an hour. His testimony continued as follows:

I continued going north on Milwaukee, as I passed it at a speed of 40 miles an hour. I was just approaching the light at Harlem. I saw it was red, so I lifted my foot off the gas. I would say I was a few blocks away. A block, or a block and a half, maybe. At this time I glanced in my mirror. I saw a car approaching me from the rear. I’d say, ten seconds later, Mr. Anderson pulled up alongside of me and honked his horn. (Wesselmann stated that this was the first time he recognized Anderson.)
He don’t own a car; he is an old friend of mine; we used to work together a few years ago. And he recognized me as I went by and he pulled up next to me and honked his horn a few times, and I waived [sic] back to him. [Wesselmann stated that he had slowed down to 30 miles an hour.]
I increased my speed to 40 miles an hour, and Anderson fell a little behind me to the right and I kept going 40 miles an hour. And these lights went on as we were about three quarters of a block from Harlem, still moving. We waited for the light to turn green again and we went around the corner. (At this time both men were arrested.)

Wesselmann denied that he was trying to keep ahead of Anderson, and stated that he was driving with a probationary license.

Donald Anderson testified as follows:

At the light at Waukegan and Milwaukee Avenue, Mr. Wesselmann stopped. We used to work together. I hadn’t seen him for a couple of years. He kept on going. And the light changed. It was probably half a block before I actually caught up to him. We were still side by side and I honked at him. I don’t think he recognized me at first. He honked back and we exchanged beeps and he began slowing down for the light and the light changed.

Anderson denied that he was drag racing. The court then questioned Anderson as follows:

Court: Mr. Anderson, when you were parked, you were parked at a dead stop at Milwaukee and Waukegan. And you saw the other defendant Mr. Wesselmann pass you by?

A. The light had just changed and I hadn’t started (by) acceleration yet.

Court: How fast was he driving when you first saw him?

A. I really don’t know, I couldn’t tell.

Court: And you accelerated your car to catch up to Mr. Wesselmann and keep up with him ?

A. Yes. At that time I wasn’t going over the speed limit.

Court: Mr. Wesselmann said you both slowed down to about 30 miles an hour.

A. I was doing 30 miles an hour.

Court: And then you both accelerated side by side, is that correct?

A. Yes.

Court: They both slowed down. He has testified they slowed down to 30 miles an hour. And both accelerated side by side.

A. We didn’t accelerate.

The court found both Wesselmann and Anderson guilty.

Opinion : In this court the defendants argue that an essential element of the offense of drag racing is the conscious intention of two operators of motor vehicles to compete or race on a street or highway; and secondly, to act on this intention by attempting to prevent a competing driver from passing or overtaking; and that neither of these two elements was proved beyond a reasonable doubt.

From the testimony of the police officer it could properly be inferred that Wesselmann and Anderson were engaged in drag racing. One or both of them accelerated from a stopped position; they ran side by side after Wesselmann had first gone on ahead; then they both accelerated to a speed beyond the applicable limit until they were stopped by the light which was only a comparatively short distance from where they had started. The statements of the police officer and the defendants as to the physical acts of the defendants are not in substantial contradiction.

All the physical elements of drag racing are present. It then becomes necessary to determine the intent of the two defendants at that time. The police officer, in making the arrest after observing their conduct, concluded that they were drag racing. They both denied it and testified that it was merely a casual encounter on the street by two old friends who had not seen each other for a long time. Both were driving 1965 Plymouths and they admitted that both cars were powerful. Anderson was not driving his own car, but was driving one which belonged to Graves who was a passenger in the car. It then became necessary for the trial court to determine from the evidence before it and its observation of the witnesses testifying, the purpose and intent of the defendants.

In cases involving violations of the Uniform Act Regulating Traffic on Highways of the State of Illinois, the State has the same requirement as to burden of proof as in other criminal cases. People v. Perlman, 15 Ill App2d 239, 145 NE2d 762. The section of the statute defining drag racing is a comparatively recent addition. The Act was passed and approved in 1965. Consequently, the cases with reference to the Act are not numerous. In People v. DeMarino, 72 Ill App2d 38, 219 NE2d 132, which opinion was handed down in July 1966, the court interpreted the Act and said:

“It is necessary under the statute only to show that two or more individuals were competing or racing on a street or highway in this State, and that one of the motor vehicles is to the side or the rear of another vehicle of a competing driver, and that the one driver attempts to prevent the competing one from passing or overtaking him.”
“It was the function of the trial court to pass upon the credibility of the witnesses and that court in this case concluded that the testimony of the police officer was to be believed over that of the two defendants. The trial judge having seen the witnesses and having observed their demeanor and their candor or lack of candor while testifying, was in a better position than we to determine credibility, and having decided to believe the testimony of the police officer, we will not disturb that finding.”

In the DeMarino case the court cited City of Madison v. Geier, 27 Wis2d 687, 135 NW2d 761, in which a defendant was convicted of racing his automobile in violation of a city ordinance. At page 765 the court said:

“Speed and distance are relative and depend on the nature of the race. A drag race is of short distance to contest superiority in acceleration which may or may not exceed the speed limit. Some races may test the highest speed over a given distance, others only the result. There was neither great speed nor acceleration in the modern sense in the famous race between the tortoise and the hare in Aesop’s fable— but who denies there was a race ? We hold that speed to constitute an element of a race under the ordinance does not have to be excessive or illegal and that the distance need only be of such length that it may be reasonably inferred therefrom in connection with other facts that a race was in progress within that distance.”

In People v. Stangeland, People v. Shippert, 76 Ill App2d 77, 220 NE2d 748, a recent case in the Second District of the Appellate Court, the court affirmed the verdict of the jury finding the defendants guilty and cited and quoted from People v. Schoop, 288 Ill 44, 122 NE 836, as follows:

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

The court further stated:

“We do not believe that there is clearly a reasonable and well founded doubt of the guilt of the defendants in the case at bar. In most instances, violations of this statute must necessarily be determined by reasonable and logical inferences from the observed conduct of the defendants. . . .”

The inferences to be drawn from the facts in evidence are for the trial court, and unless they are inherently impossible or unreasonable, they should be accepted on appeal. Applying these rules to the case before us, the evidence before the trial court in the instant case was sufficient to support the court’s determination that the defendants were, beyond reasonable doubt, guilty of drag racing.

The judgment of the Circuit Court is affirmed.

Affirmed.

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

       Ill Rev Stats 1965, c 95½, § 145.1. Drag racing.] 48.1. Any person who as an operator of a motor vehicle, is a participant in drag racing shall be confined in the county jail for not more than one year, and the operator’s license of such person shall be revoked in the manner provided by Section 6-205 of the “Illinois Motor Vehicle Law,” approved July 11, 1957, as heretofore or hereafter amended.
      For the purpose of this Section “drag racing” means the act of 2 or more individuals competing or racing on any street or highway in this State in a situation in which one of the motor vehicles is beside or to the rear of a motor vehicle operated by a competing driver and the one driver attempts to prevent the competing driver from passing or overtaking him or one or more individuals competing in a race against time on any street or highway in this State. As amended by act approved Aug 6, 1965. L 1965, p 2711, HB No. 1103.

       Milwaukee Avenue runs diagonally in a northwest direction; Harlem Avenue and Waukegan Road are north and south streets. They both intersect Milwaukee Avenue and there are stop lights at both intersections. According to the uncontradicted testimony of the police officer the distance on Milwaukee between Waukegan and Harlem is about one fourth mile.


author: MR. JUSTICE MCCORMICK

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald J. Anderson, Defendant-Appellant.
    Gen. No. M-51,504.
    First District, Fourth Division.
    December 8, 1966.
    William R. Bowes, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

Donald J. Anderson was charged in a traffic complaint with drag racing in violation of the statute. He was accused of competing or racing with Jack J. Wesselmann; both were tried before a magistrate without a jury, although the cases were not consolidated either in the trial court or in this court. Separate appeals were taken to this court. In the trial court Anderson was found guilty, fined $45, and placed on probation for six months.

The same argument is made before us on behalf of each of the defendants. The point is raised in counsel’s brief that Anderson was not convicted, beyond a reasonable doubt, of drag racing.

We will adopt the opinion which we handed down in People v. Wesselmann, 78 Ill App2d 62. The judgment against Donald J. Anderson is affirmed.

Affirmed.

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


author: MR. JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Marshall T. Haehnel, Defendant-Appellant.
    Gen. No. 50,986.
    First District, First Division.
    December 8, 1966.

      Herbert F. Friedman, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Marshall T. Haehnel, was charged with driving a motor vehicle while under the influence of intoxicating liquor. He waived a jury trial and on being found guilty by the court, was assessed a fine of One Hundred Dollars ($100). On appeal he contends that the State failed to prove the corpus delicti of the crime.

On May 15, 1965, at approximately 7:00 p. m., Officer James McGrath responded to an accident call in the vicinity of 3603 North Olcott. He testified he saw a damaged vehicle there and that the owner, Mr. Rountree, stated, in the presence of the defendant, that the parked car had been hit by another car when he was in the house, that he and his son came out, and his son went after the car which had failed to stop. Officer McGrath said they then went to an undisclosed location where he observed damage to the defendant’s car. He then questioned the defendant who told him that he was trying to turn around in the street when he struck the parked vehicle. He said he detected an odor of alcohol and, in his opinion, the defendant was intoxicated. It was stipulated that a breathalyzer test indicated that the defendant’s blood contained .210 per cent of alcohol by weight, which is sufficient to support a finding of intoxication. (Ill Rev Stats 1965, c 95½, § 144(b) 3.) On cross-examination he said that he did not see the defendant driving that day.

Mr. Rountree testified that two days after the accident the defendant came to his home and told him that “he was parked there by the drugstore on this lot, and he said he pulled out, turned, ’n’ if he turned too short or what happened, and he hit the back of the car.” He said his car was parked at the curb and he had not seen the defendant driving his car.

The defendant argues that there is no evidence independent of defendant’s admission that he was driving a motor vehicle, and therefore the rule that the corpus delicti cannot be proved by the admission of defendant alone must be applied in this case, citing People v. Lueder, 3Ill2d 487, 121 NE2d 743.

It is true that a naked, uncorroborated confession is insufficient to convict, but:

[T]he corpus delicti is not required to be proved beyond a reasonable doubt exclusively by evidence aliunde the confession or admissions of the accused, nor is it necessary that it be established by evidence other than that which tends to connect the defendant with the crime. People v. Perfecto, 26 Ill2d 228, 229, 186 NE2d 258.

Direct and positive evidence is not necessary to prove the corpus delicti, People v. Lueder, 3 Ill2d 487, 121 NE2d 743, and the test is whether the entire evidence establishes that a crime was committed and that the accused committed it. People v. Miller, 13 Ill2d 84, 148 NE2d 455. In considering the evidence, fair inferences may be drawn, and requirement that defendant’s guilt be proved beyond a reasonable doubt does not mean that the court may disregard the inferences flowing from the evidence before it. People v. Pigrenet, 26 Ill2d 224, 186 NE2d 306.

In the case at bar, the stipulation to the breathalyzer test results showed the defendant to be intoxicated at the time of the accident. It was uncontradicted that Mr. Rountree’s parked car was struck by a moving vehicle, and Officer McGrath testified that the defendant’s car was also damaged. In the presence of the defendant, Mr. Rountree told Officer McGrath that his car had been hit by another vehicle and that his son chased after the vehicle. In our opinion, the defendant’s admission at the scene and again two days later at the Rountree home, that he struck the Rountree car while trying to turn around in the street, when considered with all the other evidence, was sufficient to prove the corpus delicti and the defendant’s guilt beyond a reasonable doubt. Consequently the judgment of the Municipal Court of Chicago is affirmed.

Judgment affirmed.

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


author: GOLDENHERSH, J.

text:
    Raymond Visintin, Plaintiff-Appellee, v. Country Mutual Insurance Company, a Corporation, Defendant-Appellant.
    Gen. No. 66-16.
    Fifth District.
    December 9, 1966.
    Rehearing denied December 30, 1966.
    George B. Gillespie, Gillespie, Burke & Gillespie, of Springfield, for appellant.
    Stanford S. Meyer, Meyer & Meyer, of Belleville, for appellee.
   GOLDENHERSH, J.

Defendant, Country Mutual Insurance Company, a corporation, appeals from the judgment of the Circuit Court of St. Clair County, entered in favor of plaintiff, after a non jury trial.

This action arises out of an automobile collision which occurred on August 10, 1961. Plaintiff was injured while driving an automobile which was struck by an automobile owned by Jane Villegas, and driven by Shirley Kessinger. Plaintiff filed suit in the District Court of the United States for the Southern District of Illinois, naming as defendants, Shirley Kessinger, Jane Villegas, and Pedro Villegas, her husband, and Erwin Shaw. Prior to submission of the case to the jury, plaintiff dismissed as to Shaw, the court directed verdicts in favor of Mr. and Mrs. Villegas, and the jury returned a verdict in favor of plaintiff, and against Shirley Kessinger. The record shows that no service of process was had on Shaw, and apparently neither party knew his place of residence at that time.

The parties have stipulated that on August 10, 1961, there was in force and effect a policy of insurance issued by defendant, covering the automobile involved in the collision in which plaintiff was injured, and naming Jane Villegas as the insured.

Plaintiff’s complaint, as amended, alleges the entry of the District Court judgment, the issuance of execution, its return “unsatisfied,” the existence of the policy, and defendant’s refusal to pay the judgment.

Defendant’s answer admits the entry of the judgment, the existence of the policy, the return of the execution, but denies liability on the ground that Shirley Kessinger was not operating the vehicle with the permission of the named insured, or with the permission of any adult member of the named insured’s family.

The evidence shows that the named insured, Jane W. Villegas, and her husband, Pedro Villegas, owned and lived on a farm near Eldred. Erwin Shaw was employed by them, and lived in a house on the farm, with his wife and 4 children. Shaw did general farm work, looked after some of the stock, and took care of the farm machinery. On occasion, he drove one of the farm vehicles to Carrollton to buy repair parts for the farm equipment. He had worked for the Villegases for approximately a year, on an hourly basis, and was considered a good employee.

On August 2, 1961, the Villegases left for a trip to Mexico City. They left the 1961 Chevrolet, which was involved in the accident, on the farm, and both of them, at different times, told Shaw that while they were gone he could drive the 1961 Chevrolet to go to Carrollton to buy parts needed for the repair of the farm machinery, and in going back and forth to Carrollton, he could stop and buy groceries. Prior to that time, Shaw had never driven this automobile. They specifically instructed him at this time not to allow anyone else to drive the car. This was done primarily because the Villegases knew that Shaw had teenage boys, whom they did not want to drive the car, and also because there was no collision insurance.

Prior to leaving for Mexico, the Villegases gave Shaw checks, dated a week apart, to cover his weekly wages. Shaw was instructed to enter the number of hours he worked each day, in a book provided by Pedro. It was agreed that he would be paid for any amounts due him in excess of the amounts of the checks, when the Villegases returned from their trip. At the time of the Villegases’ departure, the speedometer of the Chevrolet showed that it had been driven 8,215 miles; when they returned, it had been driven in excess of 10,000 miles, and the speedometer was disconnected.

The Villegases did not know Shirley Kessinger, who was driving the car at the time of the collision on August 10,1961. They knew nothing of the occurrence on August 10th, until they returned to their farm on September 6, 1961. When they returned to the farm, they found it unattended, and Shaw was gone. The book entries which Shaw was required to keep showed that he had worked from 7:00 a. m. to 3:00 p. m. on August 10, 1961. They checked with the dealers at Carrollton and discovered that no parts had been purchased by Shaw on that date.

Shirley Kessinger testified that she met Shaw in a tavern about 5:00 p. m. on August 10th. Shortly thereafter, she left the tavern with Shaw to look for her older sister, who had been “running around” with Shaw. Shirley drove the automobile to another tavern, and Shaw sat in the front seat. They had a drink at each of the taverns. After leaving the second tavern, they went to a third tavern, near Greenfield. None of the taverns were near, or in the direction of, the Villegas farm. In each instance, Shaw told Miss Kessinger where to go. He told her that the 1961 Chevrolet was his new car, and asked her to drive. They did not find Shirley’s sister, and left the tavern at Greenfield to return to Roodhouse, because Shirley wanted to attend a dance which started at 9:00 o’clock. As they started toward Roodhouse, Shaw started making advances. He reached over and pulled up her dress. She asked him to stop, but shortly thereafter, he did the same thing. Each time, she reached down and pushed his hand away. This continued, on and off, for about 10 or 15 minutes. Near the scene of the collision with the Visintin car, Shaw was again attempting to lift up her dress, and in pushing his hand away, she looked down, the car crossed the middle line of the road, and the collision occurred.

Shaw has apparently been charged with forging checks given him by the Villegases, and his whereabouts are unknown.

The definitions of “Insured” in the policy, include the following:

“(b) any other person using such automobile, provided the actual use thereof is with the permission of the Named Insured, or with the permission of any adult members of the Named Insured’s family;”

The coverage extended by this type of omnibus clause has been the subject of much litigation, and numerous cases are gathered and discussed in annotations found at 4 ALR3d 10; 5 ALR2d 600; and 160 ALR 1195.

Illinois has consistently followed what ALR (5 ALR2d 622) terms the “liberal rule,” that once permission is granted for the use of a vehicle, even though restrictions on its use are at that time imposed, coverage exists, even though the use may be for a purpose not contemplated by the insured when the permission was given. Fireman’s Fund Indemnity Co. v. Freeport Ins. Co., 30 Ill App2d 69, 173 NE2d 543, and cases cited at page 73.

Under the holdings of these cases, there appears to be little question that had Shaw been driving the Villegas automobile at the time of the collision, coverage would have been afforded him under the policy.

Under the holding of Hays v. Country Mutual Ins. Co., 28 Ill2d 601, 192 NE2d 855, had Shaw not been riding in the automobile at the time in question, it appears equally clear that Miss Kessinger would not be covered.

The issue presented, therefore, is whether, in the face of the restrictions imposed upon Shaw’s use of the automobile, and in view of his violation of the Villegas’ instructions that no one else was to drive the car, and under the facts here presented, Miss Kessinger can be held to have the implied permission of the Villegases to operate the automobile. With the exception of Chicago Motor Club v. Travelers Indemnity Co., 57 Ill App2d 17, 206 NE2d 518, counsel have not cited, nor has this court found, any Illinois cases in which the original permittee was present in the automobile driven by a second permittee. However, in Standard Acc. Ins. Co. v. New Amsterdam Cas. Co., 249 F2d 847, the United States Court of Appeals for the Seventh Circuit, at page 853, stated the Illinois law to be: “We are of the opinion, therefore, that in Illinois one to whom the named insured has given the initial permission to use an automobile for a specific purpose has implied authority to permit the use of the automobile to another, where in doing so the second permittee uses the car for the same purpose for which the initial permission was given, the original permittee being present in the car with him.” In Hays v. Country Mutual Ins. Co. (supra), the Supreme Court, citing the Standard Accident opinion, at page 609, said: “If the original permittee retains control of the car, but turns over its physical operation to a third person while remaining a passenger, an implied permission has been found in the continued use and control of the original permittee.”

The status of the second permittee, when accompanied by the original permittee, has been considered by the appellate courts of other jurisdictions. In Mullin v. Fidelity & Casualty Co. of New York, 271 Minn 551, 136 NW2d 613, (Supreme Court of Minnesota, 1965) the owner of an automobile permitted its employee, McCrea, to use it in his work, but with specific instructions that he was not to permit anyone else to drive it. McCrea, because of some eye discomfort, permitted Mullin to drive the car, while he remained as a passenger, sitting in the front seat. In affirming the trial court’s holding that Mullin was an “insured” under the owner’s policy, the court, at page 616, said: “It is reasonable to assume that the restrictive instruction was given because Pillsbury wished that the use of the car be limited to those situations where McCrea was present in the vehicle and able, by reason of being there, to direct the manner of its operation. At the time this accident occurred, McCrea actually was using it in the sense that he was present in the car, and, except for the minute details of its operation, was able to control the purpose of the trip and the route to be followed.”

In Indemnity Ins. Company of North America v. Metropolitan Cas. Ins. Co. of New York, 33 NJ 507, 166 A2d 355 (Supreme Court of New Jersey, 1960), an automobile owned by a Mrs. Calandriello, one of two shareholders in a liquor distributing firm, permitted a salesman to use her automobile to take some customers of the firm on a tour of a brewery in Philadelphia. Smith, the salesman, when he used the car on prior occasions, had been instructed that only he was to operate it, although on this day no such instructions were given. On the return trip from Philadelphia, one Acerra, with Smith’s permission, was driving when the car left the highway and struck a tree. The omnibus clause in the policy there involved was identical to that in this case. In interpreting the clause, the Supreme Court of New Jersey, at page 358, said: “The clause says nothing about operation of the vehicle. It is the use which must be permitted. Defendant reads the word use as synonymous with operartion, and argues that since Mrs. Calandriello in effect expressly forbade Acerra from operating her car, Acerra was not covered. We think that in this context the words me and operation are not synonymous. The me of an automobile denotes its employment for some purpose of the user; the word ‘operation’ denotes the manipulation of the car’s controls in order to propel it as a vehicle. Use is thus broader than operation. (Citing cases.) One who operates a car uses it, Cronan v. Travellers Indemnity Co., 126 NJL 56, 18 A2d 13 (E & A 1941), but one can use a car without operating it. An automobile is being used, for example, by one riding in it although another is driving.

“Since in this context the words operation and me have different meanings and the omnibus clause requires only that the use of the automobile be with the permission of the named insured, any prohibition as to the operation of the automobile is immaterial to a determination of coverage. Thus, even though a driver has been expressly prohibited from operating the car, he is covered if the car was being used for a purpose permitted by the named insured. (Citing cases.) ”

In Chicago Motor Club v. Travelers Indemnity Co., (supra), in which the Appellate Court for the First District affirmed the judgment of the trial court, based on factual findings favorable to the defendants, the court in discussing the significance of the presence of the alleged first permittee in the automobile at the time of the collision, at page 24, said: “More significant is the fact that he was a passenger in the car at the time Spaeth drove it. This factor itself is an important criterion in determining if there is implied permission in that the use of the car, as distinguished from its operation, remained under the control of the original permittee. Indemnity Ins. Co. v. Metropolitan Cas. Ins. Co. of New York, 33 NJ 507, 166 A2d 355 (1960), 160 ALR 1195, 1213. Further, the mission of Spaeth at the time of the accident seemingly was for the benefit and advantage of the original permittee. According to the weight of authority in this area, these factors would normally be sufficient to justify the conclusion that the Plymouth was being used within the scope of the permission granted by the named insured and would suffice to bring Spaeth within the coverage of the policy as an additional insured.” As we interpret the opinion, absent the finding of fact by the trial court, the Appellate Court would have found that Spaeth was covered under the terms of Roy Brainerd’s policy. In the case before us, we find the converse situation, here the trial court found that Shirley Kessinger was driving with the implied permission of the named insured.

The Illinois rule is well summarized in Konrad v. Hartford Accident & Indemnity Co., 11 Ill App2d 503, 137 NE2d 855, at page 514: “When the named insured has initially once given permission to another person to use his motor vehicle but that person deviates from the permission granted, Illinois follows the so-called initial permission rule to the effect that the user need only to have received permission to take the vehicle in the first instance, and any use while it remains in his possession is with ‘permission,’ under the omnibus clause, though that use may be for a purpose not contemplated by the named insured when he parted with possession of the vehicle; if the original taking by the user is with the named insured’s consent, every act of the user subsequent thereto while he is driving the vehicle is with the named insured’s permission so far as the omnibus clause is concerned, assuming there is no termination of permission; a deviation from the permission is immaterial; the only essential thing is that permission be given in the first instance; the rule is based on the theory that the insurance contract is as much for the benefit of the public as for the insured, and that it is undesirable to permit litigation as to the details of the permission and use;”

In our opinion, under the rule enunciated in Konrad, the operation of the car by Miss Kessinger while Shaw was present in the car, and while it was being driven at his direction, is a continuation of the use which had its inception in the permission granted by the named insured, and the same rule applicable to the deviation from the place to which he was authorized to drive, and the purpose for which the car could be driven, is applicable to the deviation from the instructions that only he was to drive.

Defendant, in support of its position cites Cocos v. American Automobile Ins. Co., 302 Ill App 442, 24 NE2d 75, and Wolverine Insurance Company v. Eldridge, 326 F2d 748. These cases are clearly distinguishable on the facts. In Cocos, the first permittee was not present in the car at the time of the occurrence and was not engaged in any mission or errand for either the named insured or the first permittee. In Wolverine, the so-called first permittee did not have the permission of the owner to drive the car, and in fact, his use of the car was expressly forbidden.

Defendant argues that implicit in the holding of Standard Accident Ins. Co. v. New Amsterdam Cas. Co. (supra) is the requirement that the use made of the car while being driven by the second permittee be the use for which the initial permission was given, and points to the fact that the Supreme Court, in Hays v. Country Mutual Ins. Co., cited with approval the holding in Standard Accident. In our opinion, in view of the holding of Konrad that “the only essential thing is that permission be given in the first instance,” it is not material that the use being made of the car deviates from the use contemplated when the initial permission was given. That this is the proper interpretation of the applicable rules is further demonstrated in that in Hays (see page 609), there is no requirement that the use be the same.

Defendant contends that Shaw, in using the automobile for his own lecherous purposes, and while so engaged, his molestation of the driver, constitutes abandonment of control of the car, so that its operation was no longer under his direction.

We have examined the cases cited by defendant in support of its argument, and find them clearly distinguishable. In Plunkett v. Nationwide Mut. Ins. Co. (Supreme Court of Errors of Connecticut, 1963), 187 A2d 754 the driver Plunkett, moved a car on a parking lot, at the direction of Fleischner, the parking lot attendant, who was not in the car. The court found that Fleischner was not in a position to exercise the right of control over the vehicle and Plunkett was in complete control.

In Kadrmas v. Mudna (Supreme Court of North Dakota, 1961), 107 NW2d 346 the original permittee had gone to sleep in the car and told one of his companions to wake him when they were ready to leave: He did not give the driver permission to drive. The court, quoting from its earlier opinion in Persellin v. State Automobile Ins. Ass’n, 75 ND 716, 32 NW2d 644, makes it clear that it is the use, and not the driving or operation, that must be expressly, or impliedly, permitted by the named insured.

In Nationwide Mut. Ins. Co. v. State Farm Mutual Ins. Co., 209 F Supp 83, (USDCND W Va 1962) the original permittee was not present in the car, the first permittee, James Canterbury was intoxicated, and as stated by the court, even if there could be a finding of his having granted Coffman, the driver, permission to operate the car, the elements of direction and control were lacking.

Here, Shaw, present in the automobile and directing Miss Kessinger where to drive, clearly retained control, and based upon the authorities cited, we conclude that a deviation from the permitted use, involving lust, alcohol, or both, is governed by the same rule as would be applicable, had Shaw permitted Miss Kessinger to drive the vehicle for the purpose of driving him to church, or for some equally laudable purpose. The controlling factor, as stated in Konrad, is that permission to use the automobile was given in the first instance.

For the reasons herein set forth, the judgment of the Circuit Court of St. Clair County is affirmed.

Judgment affirmed.

EBERSPACHER and MORAN, JJ., concur.


author: JUSTICE LYONS.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Davis (Impleaded), Defendant-Appellant.
    Gen. No. 50,766.
    First District, Second Division.
    December 13, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Sheldon Banks and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Carl M. Walsh, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


author: MR. JUSTICE ABRAHAMSON

text:
    Charles W. Greengard, d/b/a Charles W. Greengard Associates, Plaintiff-Appellee, v. Ben Cooper, s/d/b/a Green Valley Builders, also s/d/b/a Cooper Construction Co., Defendant-Appellant.
    Gen. No. 65-132.
    Second District.
    December 13, 1966.

      Robert B. Cook, of Chicago, for appellant.
    Seymour A. Greenblatt, of Waukegan, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of Lake County. On June 25, 1963, the trial court entered an order permitting plaintiff to take a voluntary nonsuit and denied defendant’s motion for imposition of costs and reasonable attorney’s fees under section 41 of the Civil Practice Act.

The original complaint was filed on December 13, 1962. Plaintiff sought compensation for services rendered to defendant in the amount of $5,600. Defendant filed an answer which, on motion, was stricken. An amended answer was thereupon filed. Defendant thereafter filed a motion for summary judgment. Before hearing on the motion, plaintiff was given leave to file an amended complaint. An answer to the amended complaint was filed and a reply filed to that answer. The amended complaint raised the ad damnum to $7,002.37.

Deposition of the plaintiff was taken. Written interrogatories were served upon the plaintiff and answered. A request to admit certain facts was served upon the plaintiff on June 8, 1965, and filed June 23, 1965, with answer thereto by plaintiff. An order was entered on May 13, 1964, granting defendant leave to file a second motion for summary judgment, which motion, after hearing, was denied on June 30,1964.

On the eve of the trial on June 25, 1965, plaintiff filed a notice of motion seeking a voluntary nonsuit. No written motion to have the cause dismissed was filed by plaintiff and his reasons for wishing a nonsuit do not appear of record. Thereupon, defendant filed two motions, one seeking a contempt citation and the second praying for relief under section 41 of the Civil Practice Act. After oral argument plaintiff’s motion to dismiss was granted. Both motions of defendant were denied. Defendant perfects this appeal solely on the basis of his motion under section 41 of the Civil Practice Act, (Ill Rev Stats 1963, c 110, par 41) which provides as follows:

“Allegations and denials, made without reasonable cause and not in good faith, and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court at the trial.”

Plaintiff sought recovery for engineering services rendered in a land development program initiated by the defendant. The services to be performed included preparations of plans and specifications and engineering for a water works and sewerage system. A construction company and a utility company were incorporated to complete the project. The parties came to a parting of the ways and plaintiff settled with the utility company for engineering services rendered.

The defendant contends that the plaintiff’s charges for services should have been directed to the corporate entity and not to the defendant individually and that the plaintiff well knew and understood this and that as a result this suit was without reasonable cause and not in good faith filed, thereby entitling the defendant to relief under section 41, supra.

Plaintiff contends that the settlement with the utility company was not a complete payment for all services rendered and that there is due from the defendant additional sums for the engineering services relative to the land development program.

Section 41 is an attempt by the legislature to penalize the litigant who pleads frivolous or false matters or brings a suit without any basis in law and thereby puts the burden upon his opponent to expend money for an attorney to make a defense against an untenable suit. Lipscomb v. Coppage, 44 Ill App2d 430, 430s, 197 NE2d 48 (1964); Ready v. Ready, 33 Ill App2d 145, 161, 178 NE2d 650 (1962). Allowance of attorney’s fees under this section is discretionary. The trial court can exercise that discretion only when the record discloses evidence of bad faith on the part of the pleader. Year Investments, Inc. v. Joyce, 44 Ill App2d 367, 195 NE2d 21 (Abst.) (1964).

From an examination of the complaint, amended complaint, answer thereto, the discovery deposition of the plaintiff, interrogatories submitted by the defendant and answered by the plaintiff, defendant’s request for plaintiff to admit certain facts and answer to such request, as well as the order on plaintiff’s oral motion for a voluntary nonsuit, we are unable to conclude that the trial court found that the facts pleaded by the plaintiff were untrue, or that the plaintiff, when asserting such facts knew them to be untrue. Such findings are requisite to relief under section 41. Furthermore, we do not believe that the trial court abused its discretion in failing to make such findings or in denying the defendant’s motion to relief under such section. The judgment of the Circuit Court is affirmed.

Judgment affirmed.

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