author: Mr. JUSTICE McGLOON

text:
    Hannah Ziman, Plaintiff-Appellee, v. Village of Glencoe, Defendant-Appellant.
    (No. 53365;
    First District
    September 2, 1971.

      Yowell and Yowell, of Chicago, (G. Kent Yowell, E. Douglas Schwantes, and James O. Lattumer, of counsel,) for appellant.
    Ordower & Ordower, of Chicago, for appellee.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

The Village of Glencoe appeals from an order of the Circuit Court entered pursuant to a declaratory judgment which held Article VI, § 4, Village of Glencoe Amended Zoning Ordinance of 1959 unconstitutional as applied to plaintiff Ziman’s property. The ordinance in question would require 5-foot sideyards in the event that plaintiff would construct a residence on her property commonly known as 482 Park Avenue, Glencoe, Illinois. This property measures 25 feet by 198 feet, and, therefore, a residence erected pursuant to the ordinance could measure 15 feet in width at maximum. The order of the Circuit Court would enable plaintiff to construct a residence 19 feet wide with sideyards of 3 feet.

The reason for the court’s ruling was stated in the order as follows: “[T]he sideyard requirements * * * as they apply to the plaintiff’s property are void for the reason that it is a sub lot of record.”

Defendant argues on appeal that: (1) Plaintiff’s property is not exempt from the provisions of a zoning ordinance because the lot was platted and recorded prior to the enactment of the ordinance. (2) The plaintiff failed to overcome the presumptive validity of the zoning ordinance by clear and affirmative evidence. (3) The fact that when plaintiff purchased her lot it was subject to the 5-foot sideyard restriction places here in an unfavorable position to challenge the reasonableness and validity of the ordinance.

We affirm.

In December of 1965, plaintiff acquired real estate at 482 Park Avenue in Glencoe with a lot dimension of 25 feet by 198 feet. This lot was platted and recorded in 1883. The Village of Glencoe enacted a zoning ordinance in 1921 which provided for a 3-foot sideyard restriction. The ordinance was amended in 1959 to require 8-foot sideyards in all properties platted and recorded after 1921 and 5-foot sideyards for those platted and recorded prior to 1921.

In July of 1966, plaintiff applied for a building permit which specified 3-foot sideyards. The permit was refused by the Building Commissioner, and his decision was upheld by the Glencoe Zoning Board of Appeals. Plaintiff thereafter filed a declaratory judgment action in which she asked that the Amended Zoning Ordinance of 1959 be declared null and void as applied to her property.

The property neighboring plaintiff’s lot is described as follows: Immediately east and adjacent to plaintiff’s property is 480 Park Avenue. This lot is 35 feet wide and has a 20-foot wide house upon it. The side-yard between the house and the west lot line measures 3 feet 5% inches. Immediately to the west and adjacent to plaintiff’s property is 488 Park Avenue. This lot is 48 feet wide and has a house 31 feet wide built upon it. The sideyard between this house and the east lot line is 16 feet, and the sideyard between this house and the west lot line is 1 foot. The lot west of the adjacent to 488 Park Avenue is 490 Park Avenue. This lot is 27 feet wide and is improved with a home built on the east lot line but toward the rear portion of the lot. If this home were to be moved forward, it would touch that built at 488 Park Avenue.

At trial plaintiff testified that she is the owner of the property in question but was unable to inform the court of the purchase price of the property. She stated, “My husband handled all my financial affairs. As to whether I have any idea at all what the amount was, I really can’t recall.”

James Kruger, a real estate broker of some 23 years with offices in Winnetka, Skokie and Chicago, testified on behalf of plaintiff. He testified that a home with a 15-foot exterior floor plan would not be economically feasible, for it could not be built with a floor plan functional to the purchaser. As a result, enforcement of 5-foot sideyards would render the property non-salable, for it could only be used for a single family residence. He further testified that a 15-foot wide home would aesthetically have an adverse effect on the surrounding property. In 23 years Mr. Kruger had neither seen nor heard of a 15-foot wide house in suburban Cook County. His opinion of the present value of the property is $2500 to $3000.

Robert Goodin, a civil engineer, testified for the defendant as to the neighboring property and its dimensions.

Lawrence Helke, the Glencoe Building Commtssioner who has worked for the Village for 24 years, testified for defendant as follows: He felt that a 15-foot wide home could be built and that it would be salable. However, on cross-examination, he testified (as abstracted):

“I have never in my experience seen a fifteen foot wide house in the Village of Glencoe. I have never had plans submitted to me for a fifteen foot wide house in Glencoe. I know of no fifteen foot houses built in the Village of Glencoe on a twenty-five foot lot.
Of my personal knowledge I do not know of any fifteen foot houses on a twenty-five foot lot of any suburb of Cook County.”

We must first consider the validity of the Circuit Court’s purported reason for granting the variance, i.e., the fact that the amended ordinance requiring a 5-foot sideyard would not apply to plaintiff’s lot because it was platted and recorded prior to enactment of the ordinance. This court in Weber v. Village of Skokie (1968), 92 Ill.App.2d 355, 235 N.E. 2d 406 stated the issue before it as follows:

“There would thus appear to be presented by the instant appeal the single question of whether a subsequently enacted zoning ordinance, which purports to restrict the construction of residential structures to property sites meeting certain minimum space requirements, may override or supersede the width and area specifications of a previously accepted and recorded plat of subdivision, to the detriment of one who claims by it.” 92 Ill.App.2d at 357.

We noted in Weber that the purpose of the Plat Act (Ill. Rev. Stat. 1965, ch. 109, par. 1 et seq.) is to insure that adequate provision has been made for streets, alleys, parks and other public facilities indispensable to the particular community. The legislative purpose of the Plat Act being clear, we concluded at page 361:

“In the case at bar, plaintiffs cannot attempt to sway the “test of reasonableness” to the ViUage’s disfavor by their claim to rights vested by a statute clearly not intended for such purpose. * * * Plaintiffs then cannot be said to have acquired an irrevocable right simply by virtue of the plat’s recordation pursuant to this statute. State ex rel. v. Dodge, 113 Ohio App. 118, 177 N.E.2d 515 (1960).” Emphasis added.

In light of the decision in Weber, the rationale of the trial court must fail. However, even though the reasoning of the court may have been wrong, if the record demonstrates that substantial justice on the whole has been done, we will affirm. Ferraro v. Augustine (1964), 45 Ill.App.2d 295, 196 N.E.2d 16 Fitzgibbons v. Rue (1951), 342 Ill.App. 712, 97 N.E.2d 584.

A municipality may enact zoning ordinances imposing restrictions upon private property (Ill. Rev. Stat. 1969, ch. 24, par. 11—13—1), but the exercise of this power is valid only when it bears a reasonable relation to the pubHc health, safety, morals or general welfare. Hannifin Corp. v. City of Berwyn (1953), 1 Ill.2d 28, 115 N.E.2d 315. Although a zoning ordinance may be valid in its general aspects, it may nevertheless be invalid as applied to a particular piece of property or a particular set of facts. People ex rel. Joseph Lumber Co. v. City of Chicago (1949), 402 Ill. 321, 83 N.E.2d 592. When the validity of such an ordinance is placed in issue, there is a presumption in favor of validity, and the one who assails its constitutionahty must overcome the presumption by clear and affirmative evidence that it constitutes arbitrary, discriminatory or unreasonable municipal action, and that it wiU not promote the safety and general welfare of the public. Stemwedel v. Village of Kenilworth (1958), 14 Ill.2d 470, 153 N.E.2d 79. Factors to be considered by the courts when confronted with this issue are “the character of the neighborhood and the use to which nearby property is put, the extent to which property values are diminished by the restrictions imposed by the ordinance, and the gain to the public as compared with the hardship imposed upon the individual property owner.” La Salle National Bank v. City of Chicago (1955), 5 Ill.2d 344, 351, 125 N.E.2d 609.

This court had occasion to consider a problem of factual similarity to the case at bar in Wolfe v. Village of Riverside (1965), 60 Ill.App.2d 164, 208 N.E.2d 833. In the Wolfe case there was property with a 25-foot frontage which was subject to a 5-foot sideyard ordinance. At trial plaintiff’s expert witnesses testified as foHows: A 15-foot wide home would have a very adverse effect on the adjacent properties; to refuse the variance would reduce the value of the property from $4500 to $1000; the lot had been extremely difficult to seH because of the sideyard restrictions; if a 20-foot wide bmlding were erected, it would be 11% feet from the adjacent home to its north and 14% feet from the adjacent home to its south, such distances between the structure being adequate for the pmposes of light, air and fire protection.

In reversing the Circuit Court’s denial of plaintiff’s request for a declaratory judgment, the court noted that the presumption of vafidity could only be evercome by clear and convincing proof that the ordinance is arbitrary, unreasonable, and that it bears no substantial relationship to the pubfic welfare. It concluded at page 169:

“We befieve that the plaintiff has sustained the burden which is necessary to overcome the presumptive validity of the ordinance in question. The evidence clearly shows that enforcement of the five foot side yard restriction would substantiaHy depress the value of the subject property, if not make it worthless. Moreover, we believe that, as appfied to the subject premises, the five-foot side yard restrictions bear no substantial relation to the public welfare. The apparent purpose of the restriction was to provide a minimum distance of 10 feet between residences; however it is clear from the record that if the plaintiff were permitted to build a 20-foot wide house with only 2Vz foot side yards, there would still be more than 10 feet between the plaintiff’s proposed house and the buildings on either side.”

The essential difference between the case at bar and Wolfe arises from the fact that if the plaintiff constructs her home toward the front (north) part of her lot, there will be only 6 feet 5% inches between her home and the home immediately to its east. This falls some 3 feet 614 inches short of the standard of 10 feet between structures considered necessary by the Village of Glencoe to present adequate availability for light and air and to prevent the spread of fires. In the Wolfe case, after the variance was granted, the municipal standard of 10 feet was still met.

However, this obstacle is not insurmountable. An examination of the neighboring property discloses that the home situated on the lot known as 490 Park Avenue is constructed on its east lot line, but it is constructed to the rear of the lot so that the forward most part of the home is situated behind the rearward most part of the home located near the west lot line of 484 Park Avenue. Thus, although these homes would actually touch if they were constructed directly adjacent to one another, their positioning on their respective lots allows maximum exposure for light and air and presents no real fire hazard.

Under Supreme Court Rule 366(a)(5), this court may: * * * give any judgment and make any order that ought to have been made, and make any other and further orders and grant any relief, * * * that the case may require.

It is our belief that the trial court properly found that ordinance in question was arbitrary, discriminatory and unreasonable as applied to plaintiff’s property. However, the examination of the neighboring property in conjunction with the other unique facts of this case, leads us to believe that the order of the Circuit Court which allows for 3-foot side-yards must be modified to additionally restrict plaintiff to build in such a manner that no part of her house is directly adjacent to the house located immediately to its east.

Judgment affirmed as modified.

McNAMARA, P. J., and DEMPSEY, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE ADESKO

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roosevelt Flournoy, Jr., Defendant-Appellant.
    (No. 54512;
    First District
    September 15, 1971.
    Gerald W. Getty, Public Defender, of Chicago, (Lee T. Hettinger and James J. Doherty, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Nicholas Taubert, of counsel,) for the People.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

The defendant, Roosevelt Flournoy, Jr., was charged with having committed the crime of rape. After a bench trial, the court found the defendant guilty of the offense as charged and sentenced him to five to ten years in the Illinois State Penitentiary. On appeal the defendant’s contentions are:

(1) That he was not proven guilty beyond a reasonable doubt; and
(2) That he was denied due process of law when physical evidence which was material and favorable to him was destroyed by the police and was no longer available at trial.

The facts are as follows:

Diana Williams, the prosecutrix and first witness cafied by the State, testified that on January 17, 1969, she got off work at 11:00 p.m. She took a bus to within one block of her home. Moments later the defendant grabbed her from behind and warned her not to scream because he had a knife and would kill her. He then led her to a back porch approximately one block from where he first grabbed her and tied a scarf over her eyes. The defendant pulled down her clothes and had intercourse with her. After the act of intercourse, the defendant again told the prosecutrix to be quiet because if she screamed he would kill her. He led her to a basement a few blocks away. The defendant got sick and vomited and later had intercourse again. Finally, he fell asleep with his arms around the prosecutrix. She did not know how long he slept. She took the blindfold down and spotted an iron rod by the wall. Then she grabbed the rod and opened the door, the defendant woke up and she hit him on the hand. She screamed! He knocked her down and put his hands over her mouth and told her to shut up or he would kiU her. The defendant had intercourse with her again.

The prosecutrix further testified that she pleaded with the defendant to let her go. An undetermined amount of time elapsed and the defendant had intercourse again. The defendant went through the prosecutrix’s purse and took a book of matches on which her mother’s and fiance’s phone numbers were written. After about 15 minutes the defendant told her to put her clothes on. He took the blindfold off her outside and warned her to look at the ground as she walked home. The defendant followed her and then left the scene. The prosecutrix arrived home at 10:00 A.M., on January 18,1969. She complained to her mother about the attack and her parents called the police.

Officer Edmond Stack of the Chicago Police Department, the other witness called by the State, testified that he saw the prosecutrix at approximately 11:10 A.M., at her home. She told him that she had been raped and described the offender. Officer Stack received a matchbook with a phone number in it from the defendant, but it was not inventoried and it is not known what happened to it.

Roosevelt Flournoy, Jr., the defendant, appeared as a witness in his own behalf and testified that he first saw the prosecutrix outside the La Keeler Club. He had been drinking with two friends, but now was on his way to give money to his mother. He talked to the prosecutrix and she mentioned that she needed money. When they reached his mother’s house the prosecutrix wanted to “go and get it over with.” They entered the basement and she took her clothes off. He got sick and could not have intercourse. She got dressed and accepted five dollars. On a book of matches, the prosecutrix wrote two phone numbers at which she could be reached. She gave the matchbook to the defendant and he walked her home, the defendant gave the book of matches to Officer Stack.

The State introduced into evidence a statement of defendant’s prior conviction for rape for the purpose of affecting the credibility of the defendant in the instant case.

The first contention raised by the defendant on appeal is that the State failed to prove the defendant guilty of rape beyond a reasonable doubt, because the testimony of the prosecutrix was inherently unbelievable, inconsistent and failed to account for over half the time spent with her alleged abductor.

The testimony of the complaining witness was corroborated by her prompt complaint to her mother and to the police. Prompt complaint is competent to corroborate the testimony of the complaining witness. People v. Symons (1961), 23 Ill.2d 126, 177 N.E.2d 185; People v. Jenkins (1962), 24 Ill.2d 208, 181 N.E.2d 79.

In People v. Scott (1950), 407 Ill. 301, 95 N.E.2d 315, the prosecutrix was held for thirty-seven horns and admitted that she was alone in the apartment on one occasion. During her captivity she cooked meals, did the laundry and cleaned the apartment. There was a public phone available for her use which she ignored. The facts in this case are easily distinguishable from the facts of the instant case.

The complaining witness in the instant case testified that she tried to get away from the defendant when he fell asleep. She hit him with an iron rod and screamed.

In People v. Marose (1968), 10 Ill.2d 340, 139 N.E.2d 735 the Supreme Court at page 342-343, stated: “The jury being waived, the question of the weight of the evidence was for the trial judge who heard and saw the witnesses and who was, therefore, in a much better position to determine which witness was worthy of belief than we would be from an examination of the record.” The defendant’s prior conviction for rape adversely affected the credibility of the testimony. The complaining witness’s testimony was believable when it is taken into consideration that she was blindfolded throughout most of her captivity.

The second contention raised by the defendant is that since the prosecutrix did not make an outcry or attempt to escape, use physical force or make prompt complaint, the State failed to prove that the intercourse was without the consent of the prosecutrix. The prosecutrix was blindfolded by the defendant. Having been deprived of her sight, she was frightened, disorientated and defenseless. She did not have the opportunities to cry out for help which were present in the cases cited by the defendant.

In People v. Williams (1961), 23 Ill.2d 295, 178 N.E.2d 372 the defendant did not force his affections on the prosecutrix; rather she offered him her body. In People v. Qualls (1961), 21 Ill.2d 252, 171 N.E.2d 612, the prosecutrix was alone near a phone and the front door. The fact situations in the other cited cases also vary substantially Rom the present situation.

The prosecutrix testified as to her unsuccessful attempt to escape from the defendant. She attempted to escape from the basement, but the defendant caught her. She hit him with an iron rod and screamed, but the defendant prevailed and threatened to kill her.

The prosecutrix stood five feet, two inches tall and weighed 95 lbs. The defendant stood five feet, eleven inches tall and weighed 175 lbs. The prosecutrix was blindfolded. Resistance is not necessary where one is so overcome by superior physical strength or paralyzed by fear that she would be powerless to resist her assailant. People v. Jackson (1968), 103 Ill.App.2d 209, 243 N.E.2d 551.

Finally, the defendant asserts that the prosecutrix did not make a prompt complaint. The prosecutrix was released at 10:00 A.M., and she promptly complained to her mother and her parents called the police. The police arrived at 11:10 A.M. The prosecutrix complained as soon as she reached the safety of her home.

The third and final contention raised by the defendant is that he was denied due process of law when physical evidence which was material and favorable to the accused was destroyed by tire police and was no longer available at trial.

The prosecutrix testified that she had a matchbook in her purse on which the phone numbers of her mother and fiance were written. She testified that the defendant took the matchbook from her purse. Even if the matchbook were produced, defendant has not shown how it could possibly affect the result in his case. There were no statements by the prosecution which misled the court as in Trimble v. State of New Mexico (1965), 75 N.M. 183, 402 P.2d 162. Therefore, even if the matchbook were produced, it would not contradict the prosecutrix’s testimony. The materiality of the matchbook with the phone numbers was not demonstrated.

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

Judgment affirmed.

BURMAN and DIERINGER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roosevelt Staples, Defendant-Appellant.
    (No. 54653;
    First District
    September 15, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (Kevin Gallagher, Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. NoveUe and Terrence J. Mahoney, Assistant State’s Attorneys, of counsel) for the People.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

Defendant, Roosevelt Staples, was charged with the crime of armed robbery. After a bench trial, he was found guilty and sentenced to serve from two to six years in the penitentiary. Defendant Staples appeals his conviction and presents the foUowing issues for our review: (1) Whether he was proven guilty beyond a reasonable doubt; (2) Whether defendant’s initial confrontation with the police constituted a valid “stop and frisk” or an invahd arrest remote in time and place from the crime; and (3) Whether the absence of counsel at defendant’s pre-indictment lineup denied defendant his constitutional rights under the sixth amendment to the constitution of the United States. We shaH set out a brief statement of the facts which disposes of defendant’s reasonable doubt contention and then shaH consider defendant’s latter two contentions.

The complaining witness, Mrs. Shirley Finley, was employed as a hotel clerk at the Crest Hotel, 1519 W. Adams, Chicago, Illinois, in the early morning hours of January 29, 1968. Mrs. Finley was alone at the time. Between 2:30 and 3:00 A.M., two young men entered the hotel through the front door. One of the men approached the window of the clerk’s cage where Mrs. Finley was working and asked her to make change for a quarter. At this time, the second young man, whom Mrs. Finley identified in court as the defendant, Roosevelt Staples, appeared from behind a wooden partition which enclosed the cage. The defendant confronted Mrs. Finley with a gun in his hand and demanded the money located in the cash drawer. Mrs. Finley removed $18.00 to $20.00 from the money drawer and placed it on the counter. The two men picked up the money from the counter and fled the premises. Mrs. Finley testified that “the lighting in the lobby was clear at that time in the morning. We have a big light right up in the center and I have two lights on each side of my cage. There is also one along the wall by the vendor box, the candy machine and the cigarette machine and the pop machine. These lights were burning then.”

We find that the testimony related by Mrs. Finley was positive and credible. Mrs. Finley informed the court as to the adequate lighting fixtures facilitating her clear observation of the defendant. She observed the defendant when he requested the cash at a time when he was no more than a few feet directly in front of her. Mrs. Finley subsequently identified the defendant from a police lineup approximately one week after the robbery.

The defense seeks to make much of (1) the fact that Mrs. Finley originally told the police that the gun was silver while at trial she identified the gun as black with a pearl handle and (2) the fact that Mrs. Finley could only remember the defendants coat was dark, but could not remember its specific color. We believe that the alleged inconsistencies related by Mrs. Finley were at most minor discrepancies and in no way affected her credible testimony. The positive identification by Mrs. Finley, who had ample opportunity for observation, is sufficient to support conviction. People v. Mach (1962), 25 Ill.2d 416, 185 N.E.2d 154.

Defendant next contends that the arrest of the defendant was unlawful and as a result the gun obtained incidental to the arrest should have been suppressed. At trial, Officer George Kush, one of the arresting officers, testified that on February 5, 1968, his commanding officer informed him of several hotel robberies perpetrated in the vicinity of the Chicago Stadium. Officer Kush was given a general description of the suspect. At approximately 3:05 A.M., on February 5, 1968, Kush was driving eastbound in the vicinity of the Chicago Stadium when he observed a man walking on the street who fit the description of one of the perpetrators of the hotel robberies. Officer Kush described the confrontation as follows:

“A. We stopped the vehicle and got out and I announced my office and showed my star.
Q. What occurred then?
A. The defendant was rather fidgety and reached around his—
MRS. WILIAMS: Objection to this.
THE COURT: Oh, he may testify to that, objection overruled.
Q. Continue.
A. Was moving his hands around, so we instituted a search of his person. And as Officer LaPierre touched his back the defendant bolted
and ran in a southeasterly direction through the projects * * *
Q. What, if anything did you do?
A. I got behind the wheel of the squad car and drove it east to an entranceway in the projects, and then drove south.
Q. And what did you do then?
A. I got out of the car and the defendant was running in my direction, and I started to go in that direction, and he stopped and started to turn back. At this point I observed him throw a gun on the ground, and then he put his hands in the air and stopped.”

At this time the defendant was taken into custody.

Defendant contends that his initial arrest was unlawful because the police officers lacked probable cause to arrest him. Defendant concedes that his running after the initial arrest gave rise to probable cause, but urges that what takes place after an arrest cannot be used to enhance probable cause before an arrest. The State contends that the initial confrontation between the police officers and defendant Staples was a “stop and frisk” and not an arrest and search. The State argues that defendant was lawfully “stopped for questioning” by the officers pursuant to Terry v. Ohio (1968), 392 U.S. 1 and People v. Lee (1971), 48 Ill.2d 272, and lawfully “frisked or patted down.”

We believe that the police officers, in stopping and questioning the defendant were properly executing their duties pursuant to Terry v. Ohio, supra, within the statutory scope of Ill. Rev. Stat. 1969, ch. 38, par. 107— 14 which states: “A peace officer, after having identified himself as a peace officer, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person * * * has committed an offense * * * and may demand the name and address of the person and an explanation of his actions.” See People v. Lee, supra, at page 278. Because defendant Staples appeared extremely nervous and “seemed to be reaching for his pocket, or moving his hand around his coat”, the police officers acted lawfully in “touch [ing] defendant to pat him down.” This frisk or pat down procedure, propounded in Terry v. Ohio, supra, has been given explicity statutory expression in Ill. Rev. Stat. 1969, ch. 38, par. 108 — 1.01, which states:

“When a peace officer has stopped a person for temporary questioning pursuant to Sec. 107-14 of this code and reasonably suspects that he or another is in danger of attack, he may search the person for weapons.”

In view of defendants suspect reactions after being stopped the officers had the authority to conduct a limited “pat down” of defendants person to protect themselves from physical harm. Terry v. Ohio, supra. Defendant’s flight subsequent to the initial “stop and frisk” constituted the requisite probable cause for the execution of a valid arrest. For these reasons we find that the police officers lawfully stopped the defendant, lawfully patted him down, and after he attempted to flee and abandon his revolver, had sufficient probable cause to arrest him. The trial court acted correctly in denying defendant’s motion to suppress the revolver obtained incidental to the arrest in question.

Defendant finally contends that the absence of counsel at his pre-indictment lineup denied him his constitutional rights under the sixth amendment. Counsel for the appellant, in then brief, inform this court that they “are not unmindful of the Illinois Supreme Court’s holding in People v. Palmen (1969), 41 Ill.2d 571, 244 N.E.2d 173, limiting Wade, etc., to post-indictment line-ups.” They “urge a re-examination of that limitation in light of other recent decisions and a rejection of it.” Defendant in effect asks us to overrule People v. Palmer (1969), supra, People v. Cesarz, 44 Ill.2d 180, 255 N.E.2d 1; People v. Johnson (1970), 45 Ill.2d 283, 259 N.E.2d 57, and a host of Appellate Court decisions. This we cannot do. One of our functions is to protect a defendant’s constitutional rights as enunciated by the U.S. Supreme Court and the Illinois Supreme Court. The U.S. Supreme Court in United States v. Wade, 388 U.S. 218, at page 219, dictates the exclusion of an in-court identification if the defendant was not afforded representation of counsel at a “post-indictment lineup.” The Illinois Supreme Court in People v. Palmer, supra, at page 572 states: “In our opinion, these ‘lineup’ decisions apply only to post-indictment confrontations.” This corut cannot apply these lineup decisions to a pre-indictment confrontation when the U.S. Supreme Court and Illinois Supreme Court do not do so.

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

Judgment affirmed.

BURMAN and DIERINGER, JJ., concur.


text:
    Mississippi Loan Corporation, Plaintiff-Appellee, v. Robert W. Boyd et al., Defendants-Appellants.
    (No. 54904;
    First District
    September 15, 1971.
    Ron Fritsch, Legal Aid Bureau, of Chicago, for appellants.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

Plaintiff, Mississippi Loan Corporation of Columbus, Mississippi, brought action to recover damages occasioned by the alleged conversion by defendants, Robert W. Boyd and Edna W. Boyd, of certain of their household goods in which the plaintiff had a security interest. The defendants pleaded their discharge in bankruptcy as an affirmative defense. The court sitting without a jury entered a judgment in favor of plaintiff in the amount of $870.74, from which this appeal is taken. Even though plaintiff has not filed a brief in this court, we shall proceed to a consideration of the substantive issues. The primary issue presented for review is whether defendants’ abandonment of their household goods, in which the plaintiff had a security interest, amounts to a “willful and malicious” injury to the property of the plaintiff. The issue is formulated by the governing statute, Section 17(a) of the Bankruptcy Act of July 1, 1898, ch. 541, 30 Stat. 544, as amended; 11 United States Code, Section 35 (a) which states: “A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as 8 8 8 (2) are liabilities 8 8 8 for willful and malicious injuries to the 8 8 8 property of another 8 8 8.” To determine whether defendants’ abandonment of their household goods was a willful and malicious injury to the security interest of plaintiff, we need to set out the pertinent facts.

The plaintiff’s case was as follows: John G, Hancock is the manager of the plaintiff’s office in Columbus, Mississippi. He handled the transaction between Robert W. Boyd and his then wife, Minnie Mae Boyd on October 25, 1963. On that date, plaintiff made a cash loan of $600.00 to the Boyds payable by them to the plaintiff in 24 payments totaling $907.82. At the same time the Boyds executed a chattel deed of trust to secure the note for $907.82, payable to the plaintiff. The deed provided that the Boyds convey to the trustee, one Maxine M. Hulett, certain household goods, the conveyance being conditioned upon their paying the $907.82 to the plaintiff.

John G. Hancock also handled the transaction between Robert W. Boyd and his present wife Edna W. Boyd on May 24, 1966, whereby the plaintiff loaned money to the defendants and a chattel deed of trust was executed by the defendants to secure the amount of $641.84 payable to the plaintiff. Many of the household goods listed in the May 24, 1966, deed were also listed in the October 25, 1963, deed. On June 1, 1966, John G. Hancock discovered that defendants had unexpectedly left Columbus, Mississippi, without notifying anyone, and that the household goods listed in the May 24, 1966, chattel deed of trust had been left by the defendants in the housing project at 2401- 17th Avenue North in Columbus, Mississippi, where the defendants had resided prior to their departure. The Columbus Housing Authority did not confiscate the household goods listed in the May 24, 1966, chattel deed of trust. Some of the household goods were taken by J. C. Mauldin Furniture Company, which had a purchase money hen on certain items. The other household goods were taken by Consolidated Credit Corporation which had an interest in them.

The plaintiff called Robert W. Boyd as a witness under section 60 of the Civil Practice Act. He testified that he had borrowed money or obtained credit from creditors who were later listed in the schedules attached to their petitions in bankruptcy. These creditors, which included plaintiff, Consolidated Credit Corporation and J. C. Mauldin Furniture Company, had security interests in the items of personal property set forth in the chattel deeds of trust executed on October 25, 1963, and on May 24, 1966. On or about May 28, 1966, Robert Boyd left Columbus, Mississippi, without notifying anyone outside his immediate family. On or about June 6, 1966, his wife Edna Boyd and their children also left Columbus, Mississippi, without notifying anyone. The defendants left all of their property in their apartment, No. 247, at 2410 17th Avenue North in Columbus, Mississippi. They came to Chicago, Illinois, where they have since resided. The defendants have made no payments on the note executed by them on May 24, 1966, in favor of the plaintiff in the total amount of $641.84, which amount includes $425.00 principal and $216.84 interest, insurance and other charges, which was to be paid off in 23 monthly installments of $26.75 each and one additional payment of $26.59.

The defendants’ case was as follows: On or about May 28, 1966, defendants were jointly indebted to eight creditors for a total amount of not less than $4,560.00. Payments on several debts had to be made to a Justice of the Peace. Robert W. Boyd was then employed by a Holiday Inn and earned $42.37 each week after taxes; Edna Boyd was not employed. The defendants’ income did not allow them to make payments to their creditors and also to provide their eight children with the necessities of life. Every piece of property of the defendants in which the plaintiff had an interest was left in the apartment in Columbus, Mississippi. As a result of the May 24, 1966, refinancing transaction, which occurred four days prior to Robert Boyd’s departure for Chicago, the defendants received as cash only $8.91.

On July 24, 1967, the defendants filed petitions in bankruptcy in the United States District Court for the Northern District of Illinois, together with the schedules required to be filed with the petitions. On July 24, 1967, both defendants were adjudicated bankrupt. Plaintiff did not deny that it had due notice and actual knowledge of both bankruptcy proceedings. On September 22, 1967, the defendants were discharged from all debts and claims which, by the Act of Congress relating to bankruptcy, are made provable against their estate.

On the basis of these facts, we must determine whether defendants’ abandonment of their household goods, in which plaintiff had a security interest, was a wilful and malicious injury to plaintiffs security interest. The leading case in this area is Davis v. Aetna Acceptance Co. (1934), 293 U.S. 328 where Mr. Justice Cardozo, speaking for the U.S. Supreme Court, reversed a judgment in favor of a creditor. In that case, Davis, an automobile dealer, obtained a loan from Aetna to purchase an automobile for later resale to a customer in the ordinary course of business. At the same time that Davis obtained a loan, he executed a chattel mortgage covering the automobile and securing payment of his debt. He then sold the automobile to a customer in the ordinary course of business, but failed to pay his debt to Aetna. He subsequently filed a petition in bankruptcy and was discharged. Aetna filed an action for conversion of the automobile. The U.S. Supreme Court held that creditor Aetna could not prevail since Davis’ discharge in bankruptcy was an affirmative defense. The court’s rationale was as follows: “There is no doubt that an act of conversion, if willful and malicious, is an injury to property within the scope of this exception. Such a case was McIntyre v. Kavanaugh, 242 US 138, where the wrong was unexcused and wanton. But a willful and malicious injury does not follow as a course from every act of conversion, without reference to the circumstances. There may be a conversion which is innocent or technical, an unauthorized assumption of dominion without wilfulness or malice s * * There may be an honest, but mistaken belief, engendered by a course of dealing, that powers have been enlarged or incapacities removed. In these and like cases, what is done is a tort, but not a willful and malicious one.” 293 U.S., at page 332.

A host of cases have followed the rationale of Davis v. Aetna Acceptance Co., supra. In X-L Finance Co., Inc. v. Oliver, 198 So.2d 168 (Ct. App. La. 1967), the chattel mortgage covered a gas stove, a refrigerator, a television set, a table, chairs and a sofa. Defendant discarded these items after they became useless and worthless through normal use. The Appellant Court of Louisiana held that defendant’s discharge in bankruptcy was an affirmative deefnse since under Davis v. Aetna Acceptance Co., supra, it could not be said that defendant willfully and maliciously disposed of the mortgaged property.

In Rone Jewelry Co. v. Conley (1958), 204 Tenn. 275, 319 S.W.2d 245 defendant sent mortgaged property to his mother in another State and later was discharged in bankruptcy. The court held that the defendant debtor’s discharge in bankrupty was an affirmative defense, stating, “in this case the defendant merely converted the property by sending it out of the state and this was not a willful and malicious injury to the property of another as comes within this statute (Section 17).” 319 S.W.2d, at page 246.

In First National Bank of Lansing v. Padjen (1965), 61 Ill.App.2d 310, 210 N.E.2d 332, Mr. Justice Burke distinguished Davis v. Aetna Acceptance Co., supra, since in Padjen the sale by a debtor of chattel-mortgaged property was not “innocent or technical” and did not arise out of an “honest, but mistaken belief, engendered by a course of dealing * *

In the instant case, defendants merely left their household goods in their Mississippi apartment. Unlike the defendant in Padjen, defendants did not sell the mortgaged goods. They did not enrich themselves directly and specifically at the expense of the plaintiff. Defendants did not even discard the household goods as was done in X-L Finance Co., Inc. v. Oliver, supra. Rather, the household goods left by defendant in their apartment were recovered by two of their eight creditors, both of whom had security interests in the goods.

We do not believe that defendants’ actions can be characterized as malicious. Plaintiff has not sustained his burden of proof by showing that deefndants acted with malice and without legal cause or justification.

We hold that defendants’ failure to notify plaintiff of their intent to leave Mississippi and the abandonment of their household goods in their Mississippi apartment was not a willful and malicious injury to the security interest of plaintiff. While defendants’ financial activities cannot be commended, defendants did leave their personal property in Mississippi with their creditors. If defendants had transported the goods to Illinois, a foreign jurisdiction, plaintiff would surely claim that such a removal of the goods was itself a “willful and malicious” conversion. We find, therefore, that defendants’ discharge in bankruptcy bars plaintiffs claim.

We also find that plaintiff failed to prove it was damaged since plaintiff neither alleged nor proved that its interest in the property was superior to the interests of the two creditors who did not recover the property. Plaintiff failed to prove that it was entitled to possession of the household goods, which element is necessary to prove conversion.

For the reasons given, the judgment of the circuit court of Cook County is hereby reversed.

Judgment reversed.

BURMAN and DIERINGER, JJ., concur.


author: Mr. JUSTICE SCPIWARTZ

text:
    The Village of Bridgeview, et al., Plaintiffs-Appellees, v. The City of Hickory Hills, et al., Defendants-Appellants.
    (No. 54923;
    First District
    September 15, 1971.

      Kozlowski & Smith, of Chicago, (Joseph J. Kozlowski and John Smith, of counsel,) for appellants.
    Ancel, Stonesifer & Glink, of Chicago, (Marvin J. Glink and Ronald M. Glink, of counsel,) for appellees.
   Mr. JUSTICE SCPIWARTZ

delivered the opinion of the court:

This case involves a dispute between the Village of Bridgeview and the City of Hickory Hills as to municipal jurisdiction over a street known as South 77th Avenue. Bridgeview filed suit for ejectment and other relief, seeking to require Plickory Hills either to remove certain sanitary sewers and water mains from 77th Avenue or to supply sewer and water service to properties on the east side of 77th Avenue which it is alleged is within the corporate limits of Bridgeview. This suit was consolidated with a mandamus action brought against Bridgeview by owners of the property along 77th Avenue. At the conclusion of all the evidence the court on March 20, 1970 held that South 77th Avenue was within the municipal boundaries of the Village of Bridgeview and that the City of Hickory Hills, by virtue of its installation of sewer and water mains thereon, was a trespasser. The court thereupon ordered Hickory Hills to allow property owners on the east side of South 77th Avenue the use of its sewer and water facilities upon the payment of charges therefor by Bridgeview. The prayer for a writ of mandamus was denied and no appeal was taken by the property owners.

On appeal Hickory Hills contends that the trial court erred in holding (1) that a judgment entered in a 1950 quo warranto proceeding upholding Bridgeview’s annexation of the disputed area is res judicata on the issue of municipal jurisdiction and in holding (2) that the installation of water and sewer lines by Hickory Hills along 77th Avenue constituted a continuing trespass on property located within the Village of Bridge-view, and (3) that the Bridgeview annexations of the territory are void and unenforceable because they do not meet the essential requirement of substantial contiguity. The facts follow.

In 1956 Bridgeview passed several ordinances annexing that portion of 77th Avenue here involved and other unincorporated areas. In 1957 a group of property owners filed a petition in the county court of Cook County for the annexation to the City of Hickory Hills of certain allegedly unincorporated areas, including the same section of 77th Avenue before referred to. Upon a hearing the county court found that “said territory is not within the corporate limits of any City, Village or Municipality * * *” and ordered Hickory Hills to consider the annexation. Shortly thereafter Hickory Hills passed an ordinance purporting to annex that territory. In 1959 the State’s Attorney of Cook County instituted a quo warranto proceeding in the superior court of Cook County challenging the Bridgeview annexation ordinances passed in 1956. The superior court of Cook County ruled in favor of Bridgeview and upheld the annexations, including the annexation of South 77th Avenue. A direct appeal by the State’s Attorney to the Supreme Court of Illinois was dismissed on March 1, 1961 as “not well taken.”

In 1960 Hickory Hills installed sewer lines and in 1963 it installed water mains along 77th Avenue. Bridgeview’s action for ejectment and other relief was filed in 1969. Subsequently a group of property owners on 77th Avenue brought a mandamus action against Bridgeview seeking to compel the Village to supply them with water and sewer service. As hereinbefore stated, the ejectment and mandamus actions were consolidated for trial. The trial court held that the issue of municipal jurisdiction over the disputed area had been adjudicated in the 1959 quo warranto proceeding and that this was res judicata. The trial court concluded that Hickory Hills was a trespasser but denied ejectment on the ground of laches and “other general principles of equity.” The court ordered Hickory Hills to allow the property owners on 77th Avenue to hook into the sewer and water fines upon the payment by Bridgeview of the charges for such services.

It is contended by the City of Hickory Hills that the trial court improperly invoked the doctrine of res judicata since the parties in interest and the issues involved differ from those involved in the earlier quo warranto proceeding. We find no merit in that contention. The statute provides that in quo warranto proceedings, “The People of the State of Illinois shall be deemed the plaintiff * * *” (Ill. Rev. Stat. 1969, ch. 112, par. 11) and it has been held repeatedly that the legality of proceedings by which additional territory is added to a municipality cannot be inquired into except upon a direct proceeding by quo warranto. People v. McKinnie, 277 Ill. 342, 115 N.E. 526; People v. York, 247 Ill. 591, 93 N.E. 400; Ogle v. City of Belleville, 238 Ill. 389, 87 N.E. 353; Edgewood Park #2 Home. Ass’n. v. Countryside Sanitary Dist., 96 Ill. App.2d 161, 237 N.E.2d 838, aff’d. in 42 Ill.2d 241; In Re Petition to Village of Arlington Heights, 65 Ill.App.2d 152, 212 N.E.2d 507.

In the instant case the property in question was annexed by Bridge-view in 1956. The annexation was upheld in a subsequent quo warranto proceeding instituted by the State’s Attorney of Cook County on behalf of the People of the State of Illinois. Accordingly the fact that the County Court made findings in 1957 which appear to be inconsistent with the validity of Bridgeview’s 1956 annexation ordinance is of no significance, since the court lacked jurisdiction to determine the legality of the Bridge-view annexation. People v. McKinnie, supra. Under the doctrine of res judicata the quo warranto proceeding upholding the Bridgeview annexations is dispositive of the question of municipal jurisdiction over the disputed area in the case now before us. Since we sustain the trial court’s finding that South 77th Avenue is a part of the Village of Bridgeview, the contention that the trial court erred in finding Hickory Hills a trespasser is without merit.

As to the third contention made by Hickory Hills, that the territory annexed by Bridgeview is not contiguous to the Village, that issue as well as all other issues relating to the validity of the annexation was disposed of in the quo warranto proceeding. The judgment is accordingly affirmed.

Judgment affirmed.

BURMAN and DIERINGER, JJ., concur.


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jay H. Taylor, Defendant-Appellant.
    (No. 55026;
    First District
    September 15, 1971.

      Gerald W. Getty, Public Defender of Cook County, of Chicago, (Saul H. Brauner, Ronald P. Katz, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (William Hedrick, Robert A. Novelle and Martin Moltz, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The defendant, Jay H. Taylor, appeals from a sentence of five to ten years in the State Penitentiary, imposed after a hearing for violation of probation in the circuit court of Cook County.

The defendant, then aged eighteen, was indicted for burglary and theft after he allegedly broke into an office of an automobile dealer and took three sets of car keys, two and one-half sets of dealer plates, and then stole a car valued at $1800. On July 14, 1969, he pleaded guilty to the charge of theft and was sentenced to four years’ probation, the first six months in the House of Correction considered served. At that time the court admonished the defendant:

“THE COURT: Now, don’t come back here for four years.
* * #
THE COURT: You will start out with 9 to 10 years if you come back.
Do you understand?
THE DEFENDANT: Yes, Sir.
THE COURT: All right, four years probation, six months considered
served.”

On August 15, 1969, the defendant was convicted of criminal damage to property and was sentenced to serve 90 days in the State Farm at Vandalia, with 21 days considered served. This last conviction was the result of an incident occurring on July 23, 1969, in which the defendant was apprehended after attempting to enter the rear door of an automobile dealership. At a hearing for probation violation on October 14, 1969, the defendant was sentenced to serve five to ten years in the State Penitentiary.

The issue on appeal is whether the sentence was too severe, and the defendant suggests that this court reduce the sentence pursuant to Supreme Court Rule 615(b) (4).

It is argued that a sentence of five to ten years is excessive because the State’s Attorney only recommended two to five years and because of the defendant’s youth. Of course, the court is not bound by the recommendation of the State’s Attorney and must use his own judgment when imposing sentence. The defendant relies on People v. Lillie (1967), 79 Ill.App.2d 174; People v. Jones (1968), 92 Ill.App.2d 124; and on the recommendations of the American Bar Association Project on Minimum Standards Relating to Sentencing Alternatives and Procedures. The court in Lillie analyzes the need for rehabilitation of criminal offenders and the harm which excessive minimum sentences may accomplish. Nevertheless, it does recognize the rule of People v. Taylor (1965), 33 Ill.2d 417, that the power granted reviewing courts to reduce sentences is to be applied with “considerable caution and circumspection.” It also recognizes that there is a risk of recidivism and a need to protect society: “Inherent in the parole system is the risk of recidivism, * * *. Society’s safeguards against recidivism is the power of the parole authorities to terminate the conditional release and return tire offender to prison.”

In the case at bar the impending power to terminate his conditional release had no effect upon this defendant. Just nine days after receiving probation as a sentence for stealing from one automobile dealership, he was apprehended trying to break into another. He has demonstrated that the safeguards are not sufficient to warrant the risk of his committing more crimes. The judge was candid when granting Taylor probation after his first conviction. He was warned that upon returning he would receive nine or ten years — he knew what to expect but chose to ignore the admonition.

In the American Bar Association Project on Minimum Standards Relating to Sentencing Alternatives and Procedures, it was recommended to the legislature that: “In order to preserve the principle of indeterminacy, the court should not be authorized to impose a sentence which exceeds on-third of the maximum sentence imposed.” In People v. Jones (1968), 92 Ill.App.2d 124, the court found these principles to be sound and applied them to that case. However, in People v. Smythe, decided April 28, 1971, this court stated: “We do not believe the courts are or should be bound to this or any other mathematical formula and agree with the court in People v. Scott (1969), 117 Ill.App.2d 344, where it is said that it should be ‘a guide and not as a hard-and-fast rule.’ ”

In the instant case the judge imposed a sentence within the statutory limits (Ill. Rev. Stat. 1969, ch. 38, par. 16—1, 117—3(d)), and we do not believe he abused his discretion.

For these reasons the judgment is affirmed.

Judgement affirmed.

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


text:
    Amelia Carden, Plaintiff-Appellant, v. Helen O. Hunt, Defendant-Appellee.
    (No. 55035;
    First District
    September 15, 1971.
    Daniel Nagle and George A. Collias, both of Chicago, for appellant.

      KirHand, Ellis, Hodson, Chaffetz & Masters, of Chicago, (Thomas G. Finn and Donald J. Duffy, of counsel,) for appellee.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The plaintiff, Amelia Carden, appeals from a directed verdict for defendant and judgment thereon, entered in the circuit court of Cook County.

The issue on appeal is whether the trial judge properly directed a verdict in favor of the defendant based on the following facts.

This is a personal injury action brought by a tenant against her landlord. At the time of the accident the plaintiff was going down the basement staffs of her apartment building. She was a new tenant but had been down the staffs previously. The staffs led from the central lobby of the building down to a landing. Reyond the landing the staffs were winding to the left with fan-shaped treads. The stairs were narrower on the left and were wider on the right side. There was no handrail on the right side of the staffs, just bare wall. The handrail on the left was located underneath the first set of staffs. As the plaintiff stood on the landing there was a newel post next to her on her left. As she stepped down from the landing she did not touch or hold onto that post. There was no foreign substance on the step where she caught her heel.

The plaintiff described her accident as follows: “I just touched it [the handrail]. Then I don’t know what happened. My heel was caught. I was thrown. * * * All I recall is being pitched out into space, not being able to catch myself in any way because there was nothing to grab and I just hit that concrete wall, I guess, that is all I remember.”

The plaintiff argues that whether or not the landlord was guilty of negligence in failing to provide an adequate handrail for a stairway and whether the staffway was constructed and maintained in an unsafe and dangerous condition was a question of fact for the jury. The plaintiff maintains the dangerous condition consisted of (1) failing to have a handrail on the right side of the staffs instead of just a bare wall, (2) permitting the stairs to be constructed so the tread at the point where the plaintiff was descending is only four or five inches wide, and (3) placing the handrail so low it caused the plaintiff to have to bend and reach down while she had her foot on an extremely narrow staff tread.

In the instant case the trial court, after listening to all the testimony and viewing exhibits offered by the plaintiff, stated:

“* * * I can’t find that there was anything dangerous on the surface of the treads of the staffs. As to the handrail; as to the trier of the facts, it fairly appears from Plaintiff’s exhibits that if a person was standing on the landing midway from the first floor to the basement, that one could easily reach the handrail or bannister to the left as one looked down the stairway.”

The plaintiff cites 25 A.L.R.2d 374 as authority for the proposition that the construction of fan-type stairways may be a basis of liability, however no Illinois cases are cited. To the contrary, in Field & Co. v. LeBosky, 133 Ill.App. 316 (1907), the court considered the question of whether fan-type stairs were inherently dangerous and concluded they were not:

“Probably most houses where stairs are necessary possess stairways of similar construction. They are found everywhere in buildings, ancient and modern. Persons using them are expected to tread on the broad portion of such steps, and not attempt to find room for the feet at the post or center around which the stairs turn. * * # There are probably no staffs of whatever construction which do not call for care in their use. It is common experience that persons fall or slip on stairs where the steps are of uniform width, depth and height with straight descent, handrails and all ordinary appliances. There is no evidence here tending to show that, properly used, steps of the construction employed in the case at bar are not as safe as others. In fact they are evidently more safe at the turn if properly used by reason of their greater width of tread at the outer portion of the half circle they describe, than the ordinary straight up and down stairs of narrower step or tread. * # * We are unaware of any authorities and not one is called to our attention where it has been held that the owner or occupant of a building must provide a certain kind of stairway for use of persons desiring to go up and down, or be held guilty or negligence. It is no more negligence per se to use one of several ordinary and familiar forms of construction than others.”

In the instant case the stairs were of ordinary construction and there was no allegation of improper lighting or a foreign substance on the stairs. Likewise, there is no allegation that the stairs were inherently dangerous if used properly. In Pedrick v. Peoria & Eastern RR. Co. (1967), 37 Ill.2d 494, the court held: “In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

We believe this rule, when applied to the facts of this case, precludes the plaintiff from recovering from the defendant.

The judgment of the circuit court is affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE BURMAN

text:
    In re Estate of Michael McLaughlin, Deceased.—(Margaret McSheffrey, et al., Plaintiffs-Appellees, v. Mary R. Baillie, et al., Defendants-Appellants.)
    (No. 55181;
    First District
    September 15, 1971.
    Bernstein, Rochelle & Treshansky, of Chicago, (Howard Bernstein, and Ronald Butler, of counsel,) for appellees.
    WHHam A. Murphy and L. Louis ICarton, of Chicago, for appeHants.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

Michael McLaughlin died intestate on October 8, 1968. Letters of administration were issued, and a declaration of heirship was entered and later amended. On February 11, 1969, two nieces and two nephews of the decedent, Margaret McSheffrey, Mary R. Baillie, Richard McCole, and Vincent McLaughlin, instituted supplemental proceedings in the probate division of the circuit court to enforce the terms of an alleged oral contract. The cause proceeded to trial; and the court, after hearing testimony and arguments of counsel, entered an order which in substance granted the relief sought by the plaintiffs in their complaint.

From this order, four heirs-at-law appeal and contend (1) that the judgment is against the manifest weight of the evidence and (2) that the judgment is contrary to law.

Due to the nature of the contentions raised, it is necessary to set forth the evidence presented at trial. Charles McCole, a nephew of the decedent and a brother of one of the parties to the alleged oral contract, testified that in September, 1968, he visited and conversed with his uncle who was in the hospital. During this conversation, his uncle stated that he was not really lonely in the hospital because the four plaintiffs herein, frequently visited, wrote or telephoned him. The decedent further said to him, “Charlie, these four people [the plaintiffs] has been very good to me and kind to me, and as I told you before that I am not going to forget these four in my will.”

The reference to “before” was to a conversation which the witness had with his uncle on Thanksgiving Day in 1966. At that time the decedent acknowledged the kindness and attention which the plaintiffs had given him: Richard McCole had done carpentry work for him; Vincent McLaughlin had visited with him and driven him to a number of places; Mary Rose Baillie had done household work and cared for personal business for him; and Margaret McSheffrey had entertained him nicely when he visited Boston. The witness then testified with regard to this conversation, “And he said, ‘If they continue to show me good times — ’ and one thing and another, ‘that I will not forget them in my will. I want to leave them each $10,000 a piece, which should be a good start,’ or something to that effect to help them out.”

Charles McCole further testified that in the period from 1965 to 1968 he had seen his brother, Richard, with his deceased uncle about 25 or 30 times. During this time he observed his brother doing repair or carpentry work in the decedent’s place of business. He often saw the decedent with Vincent McLaughlin, and in March, 1968, he saw the two of them just after Vincent had driven the decedent to visit a cemetery.

Bernard Toland, who had known the decedent as a friend since 1946, and who visited with him five or six times a year, testified with regard to a conversation which he had with the decedent on July 4, 1966, as follows:

“He said Mary Rose was so good to him she cleans his house from top to bottom, washes curtains, drapes, irons them up and makes his supper for him. “Vincent is like a chauffeur to me, he brings me to the beach, ballgames, and he brings me to Wisconsin to Dick’s home,” anywhere he wants to go. Vincent is avaffable.
# * #
He said he regretted that Margaret was so far away. “I feel so close to her, she invites me to come to Boston to her home, and when I do
go there, she shows me a great time.”
# # #
He said, “Dick, he does work for me in the tavern. He panelled the walls, tends bar, and he won’t take any money for it.”
# # #
He said to me, “His being so kind to me in the past, and if they continue to in the future, I intend to leave them 10 to $13,000 in my will when I die.”

Toland further testified that on Christmas Day, 1967, the decedent, after recounting the activities of the plaintiffs, stated, “those four I have mentioned he said being so good to me, I plan to leave 10 to $15,000 in my wiH.”

George Doherty testified that he had known the deceased since their childhood days in Ireland. He was present at Bernard Toland’s home on July 4, 1966, and overheard the decedent discussing the making of a will.

James A. Mahoney, an attorney who had known the decedent for a number of years, testified that on October 6, 1968, he drafted and prepared a wiH in accordance with instructions given by McLaughlin. This wiH was never signed because the decedent died three days before the date scheduled for the document’s execution.

It was brought out on cross-examination that prior to October 6, 1968, Mahoney had prepared two rough drafts of the will. The first draft was drawn up in September, 1968, but was revised after a conference with McLaughlin on September 27, 1968. At this meeting the decedent set forth and reviewed the basic testamentary scheme which was adopted in the final draft, and at this time he noted specifically that he had forgotten about Margaret McSheffrey’s having been so good to him when he visited Boston and about her having eight or nine children. The second draft was prepared after the conference and was presented to the decendant on October 6, 1968. On the same day, but after the presentation of the second draft, the final draft was drawn up in accordance with instructions.

The unexecuted will was admitted into evidence over objection. In it, the decedent bequeathed $6,500.00 to friends and to charity and $6,000.00 plus one tenth of the residue of the estate to each of ten named persons, including five brothers and sisters, the daughter of a deceased brother, and the four nieces and nephews who are plaintiffs herein. No evidence was introduced by the defendants.

The court found that the plaintiffs had sustained their burden of establishing the existence of an oral contract to make a will and ordered the administratrix of the estate to pay to each of the four $6,000.00 plus one-tenth of the net estate after payment of claims and the costs of administration.

The rules and guidelines which must be followed by a trial court in determining whether it is proper to grant specific performance of an oral contract to make a will, have been set forth in numerous cases. (See: Linder v. Potier, 409 Ill. 407, 100 N.E.2d 602; Yager v. Lyon, 337 Ill. 271, 169 N.E. 222.) In controversies of this type, the court must scrutinize the evidence presented (Chambers v. Appel, 392 Ill. 294, 64 N.E.2d 511), and it should enforce the alleged contract and order a distribution of the decedent’s estate different from that set forth in a validly executed will or required by the laws of descent only after the contract’s existence and terms have been proved by clear, explicit, and convincing evidence which leaves no reasonable doubt (1) that the contract was made or (2) that there was a meeting of the minds as to all of its terms. Galapeaux v. Orviller, 4 Ill.2d 422, 124 N.E.2d 321; Hickey v. Hickey, 374 Ill. 164, 30 N.E.2d 423; Anderson v. Augustana College, 300 Ill. 72, 132 N.E. 826.

A claimant may prove the making of a contract and its terms circumstantially through evidence of the actions and statements of the parties (Hickey v. Hickey, 374 Ill. 614, 30 N.E.2d 423); however, testimony that the decedent made declarations of testamentary intent is not sufficient in itself to establish the existence of an enforceable oral contract. Greenwoood v. Commercial National Bank of Peoria, 7 Ill.2d 436, 130 N.E.2d 753; Wrestler v. Tippy, 280 Ill. 124, 117 N.E. 404.

In the instant case, the evidence shows that the decedent, on a number of occasions, expressed a desire to bequeath various sums of money to the plaintiffs. On July 4, 1966, he told his friend, Bernard Toland, “* * * If they [the plaintiffs] continue to in the future [to be kind to me] I intend to leave them 10 to $13,000 in my will when I die.” On Thanksgiving Day 1966, he stated to his nephew, Charles McCole, “If they continue to show me good times that I will not forget them in my will. I want to leave them each $10,000 a piece, which should be a good start.” On Christmas Day, 1967, he said to Bernard Toland, “* * * Those four I have mentioned, he said being so good to me, I plan to leave 10 to $15,000 in my will.” In September, 1968, he informed Charles McCole, # I am not going to forget these four in my will.” In addition, shortly before his death the decedent instructed his attorney to draw up a will which, if executed, would have bequeathed $6,000.00 plus one-tenth of the residue of the estate to each of the plaintiffs.

This evidence, as a matter of law, was insufficient to clearly and convincingly prove the existence and terms of the alleged contract. The decedent’s conversations with McCole and Toland reveal that he was grateful for all that the plaintiffs had done for him; however, there is no indication in any of his statements or in the unexecuted will that he was acting under a binding contractual duty when he planned and intended to leave property to the plaintiffs. His statements and the unsigned will amount to nothing more than declarations of testamentary intent.

The evidence with regard to the terms of the alleged contract is at best uncertain. Each time that the decedent expressed an intention of making a bequest to the plaintiffs, the amount of tire bequest was different. At one point he spoke of leaving $10,000.00 to $13,000.00, at another point of leaving $10,000.00, at still another of leaving $10,000.00 to $15,000.00. In the unexecuted will he sought to bequeath to each of the plaintiffs $6,000.00 plus one-tenth of the residue of the estate. Moreover, although it is uncontroverted that each of the plaintiffs provided services to the decedent, there is no evidence of an agreement for the plaintiffs to render any specified services. The decedent never mentioned in his conversations any duties or obligations which had been imposed on the plaintiffs, and when he spoke of the future, he said only that he planned to leave the plaintiffs property “[i]f they continued to show me good times.”

The plaintiffs argue that the unsigned will corroborates the other testimony relating to the making of the oral contract and that the decedent’s statements when coupled with the plaintiffs’ actions are sufficient to justify enforcement of the agreement. They cite a number of cases in support of their argument, but in each of the cases where the court held that the evidence was sufficient to establish the existence and terms of the oral contract, the proof was much more extensive than in the present case. In Wessel v. Eilenberger, 2 Ill.2d 522, 119 N.E.2d 207, the decedent’s secretary, Flora May Wessel, alleged that she gave up plans to move to Alabama, that she moved from her home to the decedent’s farm, and that she cared for the decedent, Edmund J. Stafford, in exchange for Stafford’s promise to bequeath to her his farm and all the personal property thereon. The evidence showed that in 1938 Miss Wessel moved to the farm, that she cared for Stafford who was in poor health, and that she assisted him in the conduct of his business until his death in 1947. She received wages, but her salary was not commensurate with the services provided. Three witnesses specifically testified that Stafford acknowledged to them the existence! of the agreement and its terms, and others testified to the extent of the services rendered. The court held that the acts of the parties and the statements of the decedent were sufficient to establish the making of the contract.

In In re Estate of Niehaus, 341 Ill.App. 454, 94 N.E.2d 525, Mary Lucas, a niece of the decedent’s deceased wife, alleged that William F. Niehaus promised to leave his entire estate to her on the condition that she remain in his home and care for him until his death. The evidence showed that she had lived with her uncle for more than twenty-five years and that she had cared for him until his death in 1947. In 1941 she had planned to marry, but the marriage was postponed at her uncle’s request until after World War II. Three witnesses testified that Niehaus had spoken to them about the alleged agreement and its terms. The Court held that the acts of the parties and the statements of the decedent constituted sufficient evidence to justify the trial court in finding that the essential terms of the contract had been clearly esablished.

In Jatcko v. Hoppe, 7 Ill.2d 479, 131 N.E.2d 84, the evidence showed that Cecelia Hoppe and her husband moved into Cecelia’s mother’s home in 1938. The Hoopes allegedly relied upon a promise made by Cecelia’s mother, Elizabeth Tomso, that she would devise the home to them, and they made significant improvements to the house with their own funds. In 1942, after the first renovations were completed, Mrs. Tomso executed a will in which she devised the house to Cecelia. The Hoppes continued to improve the property for a period of fifteen years; and as the improvements were finished, Mrs. Tomso stated to a number of her friends and relatives that she had given the property to Cecelia. Shortly before her death, Mrs. Tomso revoked the 1942 Will and bequeathed all of her property equally to her five daughters. After Mrs. Tomso’s death, the daughters instituted partition proceedings, and the Hoppes counterclaimed for specific performance of the alleged oral contract. The court held that the totality of the circumstances — the actual execution of the Will after the completion of major renovation, the continued improvement of the property, and Mrs. Tomso’s statements to neighbors and friends — provided substantial basis for the conclusion that the Hoppes and Mrs. Tomso had entered a valid and enforceable contract.

In Holmes v. Ackley, 400 Ill. 372, 81 N.E.2d 178, Naomi Holmes sought to enforce an oral agreement under which her step-grandmother, Mae Bourgois, was allegedly obligated to devise certain real property to her. The evidence presented in support of the alleged agreement showed that Naomi had moved into her step-grandmother’s home and that she performed considerable service for her step-grandmother in the last months of her life. Naomi’s father testified that Mrs. Bourgois said to him, “I want her to come and stay with me the rest of my life, and I will give her my home.” Another witness who was one of Naomi’s friends testified to the same effect. Dorothy Spomer, Mrs. Bourgois’ attorney, testified that her client in giving instructions for the drafting of a will said on the day before her death, “I want to leave my home to the girl [Naomi Holmes].” The court noted that the testimony of Mrs. Bourgois’ attorney corroborated other evidence concerning the making and performance of the agreement and held that the activities of the parties and the statements of the decedent were sufficient to establish the existence and terms of the contract.

In the instant case, there is no evidence that McLaughlin made promises to leave specific property to the plaintiffs in exchange for the rendition of specified services. His conversations with McCole and Toland in contrast to the statements by Stafford in Wessel, by Mary Lucas’ uncle in Niehaus, by Elizabeth Tomso in Jatcko, and by Mae Bourgois in Holmes at most showed he had formed an intent to will property to the plaintiffs if they continued to be good to him. Mere declarations of intent based on affection are not in themselves sufficient to establish the existence of an enforceable contract to make a will. Greenwood v. Commercial National Bank of Peoria, 7 Ill.2d 436, 130 N.E.2d 753; Wrestler v. Tippy, 280 Ill. 124, 117 N.E. 404.

For the reasons set forth above, the judgment of the probate division of the circuit court is reversed.

Judgment reversed.

ADESKO, P. J., and DIERINGER, J., concur.


author: Mr. JUSTICE BURMAN.

text:
    Helen Jewell Berg, Plaintiff-Appellee, v. Jacob Oscar Berg, Defendant-Appellant.
    (No. 55471;
    First District
    September 15, 1971.
    Jacob Oscar Berg, of Rosemont, for appellant.
   Opinion by

Mr. JUSTICE BURMAN.


author: Mr. PRESIDING JUSTICE BURKE.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Melvin Golden (Impleaded), Defendant-Appellant.
    (No. 54326;
    First District
    September 21, 1971.
   Opinion by

Mr. PRESIDING JUSTICE BURKE.

Gerald W. Getty, Public Defender, of Chicago, (Saul H. Brauner, Ronald P. Katz and James J. Doherty, of counsel,) for appellant.

Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Michael J. Goldstein, Assistant State’s Attorney, of counsel,) for the People.


author: Mr. JUSTICE GOLDBERG.

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Robert J. Kosilek, (Impleaded), Defendant-Appellant.
    (No. 54426;
    First District
    September 21, 1971.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, (Nunzio Dan Tisci, of counsel,) for appellants.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Stephen Kramer, of counsel,) for the People.
   Opinion by

Mr. JUSTICE GOLDBERG.