text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jackie M. Dockery (Impleaded), Defendant-Appellant.
    Gen. No. 50,937.
    First District, First Division.
    June 13, 1966.

      Ralph M. Bernstein and Paul E. Thompson, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Carmen V. Speranza, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Defendant, Jackie M. Dockery, impleaded, after a jury trial, was found guilty of the crime of voluntary manslaughter and was sentenced to the penitentiary for a term of 4 to 10 years. On appeal, he contends that his constitutional rights were violated, and that he was deprived of a fair trial by the deliberate misconduct of the State’s Attorney. This appeal was transferred by the Supreme Court to this court.

The record shows that on June 1, 1964, in response to a telephone call, two police officers found the dead body of William Allenbaugh in a rear yard, lying face up, with the pants pulled down below the knees and the shirt pulled up under the arms. A coroner’s pathologist, who had performed an autopsy on the body, testified as to finding multiple abrasions of the face and chest and the extremities. An internal examination revealed lacerations and contusions of the internal organs and fractures of the ribs from the third to the ninth. In his opinion, the cause of death was a “hemorrhage following multiple internal injuries.”

The principal witness for the State was Gary Len Thompson, 16 years of age. At the time of trial, Thompson was under indictment for aiding and concealing a fugitive (defendant Dockery). He testified that he and defendant lived in a room in the Marshall Hotel in Chicago. After visiting his sister on May 31,1964, Thompson arrived at the hotel room at about 1:00 in the morning on June 1, 1064. Defendant and Allenbaugh were seated on a couch drinking beer and wine as Thompson came in. About 2:30 or 3:00 a. m., Allenbaugh got up to go to the washroom. He fell down two or three times, and Thompson helped him into the washroom, where Allenbaugh fell over a “commode.” Allenbaugh stayed in the washroom about 10 or 15 minutes and then got up and fell down again, with his pants below his knees. Defendant returned from purchasing beer, and after going through the pockets of Allenbaugh, carried him back to the couch. Defendant then threw Allenbaugh on the floor and started to beat him. He hit him on the head with a wine bottle first and then dragged Allenbaugh out to a porch, where he kicked Allenbaugh down the stairs to the second floor.

Thompson also testified, “Between the time he struck him with the wine bottle and the time he dragged him to the porch he was bleeding. He was bleeding from the head I think. Mr. Allenbaugh was lying on the couch when Jackie Dockery threw him on the floor and started to beat him. After he was on the floor, and Jackie Dockery started to hit him, he just lay there. He did not strike or provoke Jackie to strike him first. He did not strike Jackie. ... On the back porch Mr. Allenbaugh started to get up and walk down the steps, then, Jackie kicked him and he fell down. He put his foot on his back and kicked and shoved him. Allenbaugh went down to the first floor. He fell down with his back stooping. Jackie Dockery or myself struck Allenbaugh on that occasion, I hit him twice before the fight. During the fight, I didn’t hit him, not once. I don’t know how many times Jackie Dockery struck him. ... He struck him on the chest . . . and the side. He struck him with his feet. He did not strike him with anything other than his feet and the wine bottle. After he went down the stairs, Allenbaugh was on the first floor. Then me and Jackie went down about 30 minutes later. He was still there. So we carried him out the back. Jackie got his waist, I got one of his feet. We put him out around to the side of the building.”

Thompson identified a picture of Allenbaugh’s body and said, “That is how he was dressed when Jackie was striking and kicking him, with his pants down around below his knees.”

Thompson further testified that he and defendant went back upstairs about 2:30 a. m. and went to bed. They arose about 8:30 and looked into the back yard and saw two or three police officers, and Allenbaugh’s body was still there. Thompson and defendant dressed and went to work, and neither stopped to talk to the police officers about what happened the night before. Thompson identified a shirt as the one with which he “wiped up the blood from where he hit him on the head with the wine bottle, in the living room. Jackie used the white shirt to wipe up the blood. I wiped off some on the couch.”

Thompson also testified on cross-examination that a statement he gave at the coroner’s inquest that decedent “came after Jackie with a blackjack” was untrue and that Jackie had told him to say it. He admitted that he never saw a blackjack in the apartment. On redirect examination, Thompson admitted he again lied when he testified previously that he did not talk with the Assistant State’s Attorneys before taking the witness stand.

Two police officers testified as to finding the body and its condition. They also described the hotel room and found blood stains on a blue shirt and a white shirt, which were introduced into evidence.

The State introduced into evidence as Exhibit 10, and read to the jury over the objections of defendant, a transcript of an oral statement made by defendant on June 4, 1964, after his arrest. A motion to suppress this statement had been made and denied before trial. At that time it was stipulated that at the time the statement was taken by the police, defendant was not advised that he had a right to counsel nor did defendant ask for counsel.

The defense witnesses included defendant’s brother, Harold Dockery, who testified that on the afternoon of June 1, defendant told him he had a fight and was fired from his job. Harold called a friend of his, Eugene Hartman, who engaged defendant for construction work. Hartman testified that his business was swimming pool excavations, and he hired defendant on June 1 for an indefinite period. They commenced work the next morning at Frankfort, Illinois, digging a swimming pool. On June 2, they went to Frankfort and then to Kankakee, Illinois, where defendant was arrested.

Defendant testified that on the evening of May 31, 1964, at about eight or nine o’clock, while walking toward his home, he was introduced to decedent by two friends, and he visited with them on the street for a short time. He then returned to his apartment and later, as he left to go to his girl friend’s house, he saw the decedent sitting on the steps of the building in which he lived. The decedent asked him for his apartment number, and he told him. Decedent had a work shirt, a green pair of trousers, a long beard, and was dirty. After visiting his girl friend, defendant returned and found decedent in his apartment, lying on the couch asleep. They commenced drinking, and defendant gave money to decedent to get a bottle of wine. Decedent drank wine, and defendant drank beer.

Thompson came in about two o’clock, and decedent wanted to know who Thompson was and what he was doing there. After an argument between Thompson and the decedent, defendant asked decedent to leave. “Then I asked Allenbaugh to leave again and he got up and swore at me and I got up and Mr. Allenbaugh swung at me and when he swung at me, I caught his lick and knocked him down. He had something in his hand and it looked like a blackjack. . . . After he swung at me I caught Allenbaugh’s leg and knocked him down and we commenced fighting and Mr. Allenbaugh was on the floor striking, striking back at me, and I was striking at Mr. Allenbaugh to keep him from getting back up to me. I kicked him because it was to keep him from getting on me. Gary Thompson struck William Allenbaugh also. He struck him two or three times. ... I never hit Mr. Allenbaugh with a bottle. There was broken glass around, a broken bottle, but I don’t know how the bottle got broke.”

After some time, Allenbaugh went to the washroom, and defendant heard something hit the floor, and he and Thompson found Allenbaugh lying on the kitchen floor. “His pants were down about his knees and his shirt was unbuttoned. . . . Mr. Allenbaugh was bleeding about his head. . . . The next thing that happened was that me and Gary took Mr. Allenbaugh up and took him to the couch. I told Gary, let’s get our coats and go for a walk. We walked to the corner of Clifton and Wilson and when we came back, Mr. Allenbaugh was gone. ... I never pushed Mr. Allenbaugh down those stairs. I did not put my foot into his chest and push him down the stairs. I did not drag Mr. Allenbaugh with Gary to the bottom of the stairs. I did not touch Mr. Allenbaugh at the bottom of the stairs.”

Defendant further testified that the next morning, Thompson awakened him and said there was a man lying in the back yard. He looked out of the window and saw that it was Allenbaugh, but did not go down because there was a police officer there. There was blood around the house, and he wiped it up with shirts. He went to the home of his brother, and Harold got him a job, and he went to work. He was working in Kankakee when the police arrested him and returned him to Chicago. “I did not flee at any time away from Chicago. ... I didn’t kill Mr. Allenbaugh.”

On cross-examination, he was questioned about two statements (People’s Exhibits 10 and 11) taken by the police after he was returned to Chicago. Each exhibit bore his signature, and the pages were initialed. He admitted that neither statement mentioned decedent having a blackjack. He was further interrogated about specific questions and answers contained in the statements.

During cross-examination and after defendant stated that he had read and signed the statements for the police, he was asked, “Did you at that time tell Officer Nickels that this statement wasn’t in fact true?” Defendant objected to this line of questioning on the ground that defendant was not served with notice of any oral statement given to Officer Nickels. The State asserted that it was impeachment, and the court ruled the question proper. Defendant then answered, “I don’t remember.”

Defendant was also asked, “Isn’t it a fact that you told Officer Nickels at that time that you in fact had stomped Mr. Allenbaugh,” and defendant answered, “I told Mr. Nickels I had a fight with Mr. Allenbaugh.” On defendant’s objection to the question and answer, the court directed that the answer be stricken. Defendant then moved for a mistrial because defendant had not been served with notice of any oral statement made to Officer Nickels, and the motion was denied. Over objection to the question, defendant also denied telling Officer Nickels that he had knocked the body of the decedent “down the stairs and dragged him through the yard.”

Another witness for defendant, a medical expert in pathology, testified that he had read the pathological report concerning the death of the decedent. The witness said that in his opinion it was impossible to tell whether or not there was any brain damage in a body “without doing an internal examination of the skull and brain.” He was examined at length as to brain damage due to trauma and hemorrhage within the brain, which the court permitted because there was some evidence that decedent struck his head, and the witness was permitted to state, when being questioned about an external examination of the skull, that a person with brain injuries “may or may not have external injuries seen on external examination of the head and it is quite common for there to be very little external injury or even no external injury to the surface of the head and still have serious internal injuries to the brain.” The pathologist further stated that he felt the autopsy was incomplete, in that the examination did not include “the internal contents of the head, that is, the skull and brain.” The court sustained an objection to a question concerning possible brain damage to a man who “walked into a bathroom, fell and hit his head on a kitchen table.” On cross-examination, he stated that a ruptured spleen is, by itself, a cause of death.

In rebuttal and on behalf of the State, Police Officer Edward Nickels testified that People’s Exhibit 10 was read by him to defendant, and at the conclusion of reading Nickels had a conversation with defendant. On defendant’s objection, a hearing was had in the chambers and out of the presence of the jury. Defendant then objected to any oral conversation that may have taken place between defendant and Police Officer Nickels for the reason that they were not given any notice of oral conversation “that might constitute admission or confession that the defendant had with Officer Nickels.”

The State replied in substance, “The defendant saw fit to take the stand and take the oath and testify to certain facts and you can always show a prior inconsistent statement of any witness.” The court stated, “You can’t come through by the back door when you cannot get through the front door with it, if you haven’t had the opportunity. I am going to rule you can’t do it.” The objection was partially sustained, and Officer Nickels was permitted to testify that defendant made an oral statement to Nickels “that he did carry the body down the stairs and placed it in the yard,” and that at no time did defendant mention anything about a blackjack.

We consider first defendant’s contention that his constitutional rights were abridged by the use at the trial of his two oral statements, reduced to writing, Exhibits 10 and 11. Defendant argues these statements were made after he was taken into custody, pursuant to a warrant which charged him with murder, and “in this respect, the investigation had ceased being a search for a suspect and had become an accusatory process. In a sense, it was similar to a direct indictment in that witnesses had been called before a formal judicial entity to accuse a certain suspect and begin the movement to trial.” Authorities cited in support include Spano v. New York, 360 US 315 (1959); Escobedo v. Illinois, 378 US 478 (1964); and Powell v. Alabama, 287 US 45 (1932).

In Spano, the defendant had been indicted and surrendered himself to the police in the company of his attorney. His attorney left after cautioning Spano not to talk to the police. After persistent questioning by the police, a confession was obtained from Spano. In that case the Supreme Court said (p 320):

“Petitioner’s first contention is that his absolute right to counsel in a capital case . . . became operative on the return of an indictment against him, for,at that time he was in every sense a defendant in a criminal case, the grand jury having found sufficient cause to believe that he had committed the crime. . . . We find it unnecessary to reach that conclusion, for we find use of the confession obtained here inconsistent with the Fourteenth Amendment under traditional principles.”

In a concurring opinion, Justice Douglas said:

“Depriving a person, formally charged with a crime of counsel during the period prior to trial may be more damaging than denial of counsel during the trial itself.”

The State contends, however, that there is no confession involved, and “nowhere does the defendant claim that he killed the deceased.”

We are not persuaded that we are required to equate a defendant’s status immediately after an arrest pursuant to a warrant with a defendant’s status after he has been formally charged with a crime. The issuance of an arrest warrant does not, of itself, formally charge a defendant with crime. (See Douglas, J., concurring, in Spano v. New York.) Moreover, there is no language found in Massiah v. United States, 377 US 201 (1964), which dictates a conclusion that a defendant has an absolute right to a lawyer at any time before indictment. Therefore, the controlling principles to be applied here must be found in Escobedo v. Illinois, 378 US 478, as interpreted in People v. Hartgraves, 31 Ill 2d 375, 202 NE2d 33 (1964) and People v. Kees, 32 Ill2d 299, 205 NE2d 729 (1965).

If the written statements made by defendant to the police after his arrest could be validly contended to be in the nature of a confession, we consider the pronouncements made in People v. Kees to be controlling here:

“This court, however, in People v. Hartgraves . . . has aligned itself with those courts which have construed Escobedo to be limited to the peculiar facts of the case, and have rejected it as promulgating the sweeping rule that a confession may not be received if made by an accused without counsel, or unless the right to counsel has been intelligently waived.”

Examining the circumstances of the making of defendant’s written statements, we find no evidence of coercion or any promise of leniency, and none is charged. State’s Exhibit 10, which was read to the jury, shows that before it was taken, defendant was admonished that “you are free to give a statement; whether you give a statement or not depending on what you wish, and that anything you do say can be used against you or for you as evidence in Court.” This statement of defendant (Exhibit 10) is substantially the same as defendant’s direct and exculpatory testimony given in his own behalf. Moreover, it was stipulated at trial that defendant made no request for counsel. Therefore, we find no error in receiving into evidence defendant’s written statement identified as State’s Exhibit 10. People v. Hartgraves, 31 Ill2d 375, 202 NE2d 33 (1964).

Defendant’s next contention is “the deliberate misconduct of the State’s Attorney deprived the defendant of a fair trial,” particularly in the cross-examination of defendant regarding his conversation with Officer Nickels following the signing of the written statement and the rebuttal testimony of Officer Nickels. Defendant relies principally on People v. Pelkola, 19 Ill2d 156, 166 NE2d 54 (1960), where our Supreme Court said (p 161):

“While it has been held on numerous occasions that it is always competent to show, as a matter of impeachment, that a witness, even if he be the accused, made a statement outside of court concerning material matters which was inconsistent with his testimony on the witness stand . . . , we agree with defendant, under the circumstances of this case, that evidence of the oral confession made to detective Krause was inadmissible for any purpose. This is not a case where the trial court, in the exercise of its discretionary powers, admitted evidence in rebuttal which could and properly should have been introduced in chief, . . . but one in which . . . evidence of an oral confession was inadmissible as evidence of guilt. This being the case, it is our opinion, again by force of the statute, that the evidence was likewise inadmissible for purposes of impeachment.
“When called upon to deal with use of confessions for impeachment purposes, we have held that fundamental justice will not countenance accomplishment, by indirection, of that which it will not permit directly, and have held that confessions otherwise incompetent do not become competent when offered to impeach either a witness or an accused. ... In short, it is our opinion that the statute leaves no area of discretion to a trial court and that the legislature intended compliance with the notice provisions before an oral confession could be admitted in evidence for any purpose. Accordingly, it is our opinion that the evidence of the oral confession made to Krause was improperly received in this case.
“We are of the further opinion, however, that the error of the trial court does not justify a reversal of the judgment of conviction. Error in the admission of evidence is harmless where the facts involved are established . . . , particularly where such other evidence is on the issue of the guilt of the accused. . . . Again, we have said that whether the admission of incompetent evidence is sufficient ground to require reversal depends on the facts in each case, . . . and have held that where the record contains sufficient competent evidence to establish the guilt of a defendant beyond reasonable doubt, the judgment v/ill not be reversed for error in- admitting evidence unless it can be seen that the error was prejudicial.”

Defendant also argues that “the testimony of Thompson, who admittedly perjured himself on every occasion when he testified and testified in his own words that he ‘never told the same story to anybody more than once,’ certainly creates a close question of fact wherein the defendant’s highly incriminating statement was very important.”

The State answers that the question area of cross-examination and the rebuttal testimony of Officer Nickels concerned only “mere admissions” and not an oral confession. Therefore, any requirements of notice to defendant of “an oral confession” are not in point.

We thoroughly agree, as said in People v. Pelkola, “that fundamental justice will not countenance accomplishment, by indirection, of that which it will not permit directly,” and that “the legislature intended compliance with the notice provisions before an oral confession could be admitted in evidence for any purpose.”

However, the questioning of defendant on cross-examination, of which complaint is made, does not come within the area of an oral confession. Even if he had told Officer Nickels that he had “stomped” Mr. Allenbaugh, it cannot reasonably be considered to be a confession or acknowledgment of guilt here because he testified on direct examination that he had a fight with decedent which included some kicking. The implied admission of defendant to Officer Nickels that his written statement “was not true” was not a confession or evidence of guilt, and its receipt as evidence was within the trial court’s discretion. As stated in People v. Stanton, 16 Ill2d 459, 466, 158 NE2d 47 (1959):

“There is a distinction between a statement which is only an admission and one which constitutes a confession of guilt of the crime charged. A confession is a voluntary acknowledgment of guilt after the perpetration of an offense, and it does not embrace mere statements or declarations of independent facts from which guilt may be inferred, while an admission is any statement or conduct from which guilt of the crime may be inferred but from which guilt does not necessarily follow.”

We find no error here. See, also, People v. Speice, 23 Ill2d 40, 46, 177 NE2d 233 (1961).

Neither do we find error in the receipt of the rebuttal testimony of Officer Nickels that defendant stated he did carry the body down the stairs and place it in the yard, and that nothing was said by defendant about a blackjack. These questions were proper here as rebuttal for the purpose of impeachment.

Defendant next contends that the direct examination of the defendant’s medical expert was improperly restricted. The autopsy performed on the body of the deceased did not include an internal examination of the skull, hence there were no findings as to brain damage or whether the deceased had a “subdural hematoma.” The pathologist for the State testified that such an internal examination was unnecessary, as he determined the cause of death to be hemorrhage following multiple internal injuries.

Thereafter, the court allowed defendant’s doctor to testify with great latitude regarding the definition and cause of “subdural hematoma” and “arterio-sclerosis of the vessels of the brain,” and the possibility of death due to brain injury with “very little external injury or even no external injury to the surface of the head and still have serious internal injuries to the brain.” We conclude the issue as to the cause of the death of the decedent was properly presented to the jury for its determination. We find no error here.

Finally, defendant contends the court erred in refusing the defendant’s instruction on involuntary manslaughter. Authorities cited include People v. McCrory, 25 Ill2d 213, 184 NE2d 846 (1962), where defendant’s basic contention was that he was guilty of murder or else the killing was in justifiable self-defense. On this point defendant argues there was substantial evidence of excessive drinking and no evidence of the use of deadly weapons, and “the fact that the basic defense of the defendant was one of self-defense does not deprive him of any verdict form that may be indicated by evidence in either the State’s case or the case of the defense.”

The State argues that the defense was that the decedent died as a result of an accident, and “although the defendant does mention that he struck the deceased in self-defense, his whole defense is keyed to the deceased causing his own death when he fell and struck his head by the kitchen table.” We agree with the State that neither the defense of self-defense nor of accident caused by the decedent are consistent with death by involuntary manslaughter. As said in Davis v. People, 114 Ill 86, 97, 29 NE 192 (1885):

“The case made by the evidence was either murder or voluntary manslaughter. It contained not a single element, other than the killing itself, of involuntary manslaughter, and had the court specifically defined involuntary manslaughter, it would have answered no good purpose. It would have directed the attention of the jury to a principle of law not applicable to the facts of the case, and the result would have been to confuse rather than to enlighten them on the issue they were to try.”

In this case, the testimony of Gary Thompson and the defendant varied considerably in the key areas as to the extent of defendant’s physical attacks on the decedent, whether the decedent had a blackjack, and as to the disposal of the body. Thompson admitted from the witness stand that he had lied about decedent’s having a blackjack and whether he had talked to the Assistant State’s Attorney prior to the trial. There was sufficient evidence presented to the jury to establish defendant’s guilt, beyond a reasonable doubt, of the crime of voluntary manslaughter, and as the choice of which witness was telling the truth rested with the jury, we see no basis for substituting our judgment in such respect.

Defendant received a fair trial and, as we find no prejudicial error in this record, the judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE MURPHY

license: Public Domain

text:
    Rhodes Pharmacal Company, Inc., a Corporation, Plaintiff-Appellant, v. Continental Can Company, Inc., a New York Corporation, Defendant-Appellee.
    Gen. No. 50,825.
    First District, First Division.
    June 27, 1966.
    Rehearing denied July 19, 1966.

      Richard F. Watt, David R. Kentoff, John M. Bowlus and Stephen M. Slavin, of Chicago (Cotton, Watt, Rockier and Jones, of counsel), for appellant.
    Paul M. Plunkett and Edward W. Nicewick, of Chicago (McMahon & Plunkett, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is an alleged breach of implied warranty case. Plaintiff, Rhodes Pharmacal Company, Inc., is in' the business of marketing various drug, cosmetic and hair beauty products. Plaintiff seeks to recover damages which resulted from leakage of aerosol cans purchased by plaintiff from defendant, Pittsburgh Railways Company, and manufactured by defendant, Continental Can Company, Inc. No personal injury is involved.

Plaintiff filed a 3-count amended complaint. Count II was directed against Continental Can, as manufacturer of the defective cans. The trial court granted the motion of Continental Can for judgment on the grounds that the complaint as against defendant Continental Can was substantially insufficient in law, in that it failed “to set forth any contractual relationship between the plaintiff and this defendant,” or “any legally recognizable basis or relationship between the plaintiff and this defendant, to support any warranties running from this defendant to the plaintiff.” The trial court further found “there is no just reason for delaying enforcement or appeal of the order in accordance with Section 50(2) of the Civil Practice Act.”

In substance, Count I of the amended complaint shows that plaintiff markets a hair waving and setting lotion, packaged and distributed under its trademark “Perform.” In April 1960, plaintiff was informed by G. Barr, Inc., an Illinois corporation, whose assets were purchased by defendant Pittsburgh on April 9, 1962, that a gas propellant had been developed which would react compatibly with the setting solution of Perform. In June 1960, after laboratory tests had been performed, Barr informed plaintiff that these tests had revealed that the high water content of Perform caused unlined cans to rust and corrode, resulting in a discoloration and adulteration of the Perform solution.

Representatives of Barr informed plaintiff that the foregoing discoloration and adulteration could be eliminated and accordingly expressly warranted to plaintiff the following:

(a) That the use of rustproof linings in the cans would prevent discoloration and adulteration of the Perform solution;

(b) That such cans with rustproof linings were available;

(c) That these linings had been tested by Barr for their compatibility with the Perform solution;

(d) That such cans had been manufactured by defendant Continental;

(e) That its laboratory tests had demonstrated conclusively that Perform could be satisfactori-

ly and merchantably packaged, stored and distributed in aerosol cans with rustproof linings; (f) That the “shelf life” of Perform in the foregoing rustproof cans during which it would remain packed without leaking, exploding, evaporating was no less than three years.

In reliance upon the alleged express warranties, plaintiff instructed Barr to package and distribute Perform in rustproof lined cans to be manufactured and acquired from defendant Continental.

Plaintiff further alleges that in July 1960, representatives of plaintiff met with representatives of defendant Continental for the purpose of deciding upon the design and format of the advertising matter to be imprinted upon the aerosol can, and in October 1960, Barr began packaging and distributing Perform in aerosol cans for plaintiff for and in consideration of plaintiff paying Barr an agreed upon per unit price.

In May 1962, defendant Pittsburgh informed plaintiff that defendant Continental had changed the structure of the aerosol cans then being used by plaintiff to improve their appearance. This structural change consisted of modifying the seam running the length of the can, so that it was sealed on the inside of the can rather than on the outside, as it had been up to that time. Pittsburgh expressly warranted that the modified aerosol can would possess the identical characteristics and qualities of the cans previously used, on which no complaints had been received.

In July 1962, plaintiff began receiving complaints from its customers that the aerosol can was leaking, resulting not only in a loss of solution but also in damage to other products and inventory of drug stores and other retail outlets. Notice of these complaints was immediately communicated by plaintiff to defendant Pittsburgh, and Pittsburgh acknowledged “that the newly-modified aerosol cans were leaking and that the leakage was probably caused by the incompatibility of the new seam with the rustproof lining used in the cans, which incompatibility, in turn, caused corrosion, rusting and leaking of the container.”

Plaintiff further alleges: “As a result of defendant Pittsburgh Railways Company’s breaches of warranty, many of plaintiff’s customers and other purchasers of Perform have stopped purchasing Perform in addition to other products distributed by plaintiff; plaintiff has been forced to refund substantial sums of money to its customers throughout the United States and to pay the costs involved in the return and destruction of large quantities of Perform; plaintiff’s name and good will have suffered substantial and irremedial damage in addition to the loss of profits resulting from these breaches of warranty. Plaintiff has suffered damage in the amount of $400,000.”

In Count II, which is directed against defendant Continental, plaintiff incorporates by reference the foregoing allegations, and further alleges that defendant Continental was the manufacturer of the aerosol cans and “knew the particular purpose to which plaintiff intended and did in fact put the aerosol cans and for which they were required,” and plaintiff relied upon the skill and judgment of agents and representatives of defendant Continental in the design, engineering and utility of the aerosol cans used by it.

Plaintiff further alleges: “Defendant Continental warranted by implication that the aerosol cans manufactured by it and delivered to defendant Pittsburgh Railways Company would be reasonably fit, useful and merchantable by plaintiff. Defendant Continental further warranted by implication that the aerosol cans would pass without objection in the trade; that the cans would be fit for the ordinary purposes for which the cans would be used; that the cans would be adequately designed, manufactured and sealed to meet the reasonable needs of the product in the trade, and that the cans would conform to the promises and affirmations of fact contained in the advertising matter on the cans to the extent that the cans would adequately contain the Perform solution for a reasonable period of time. . . . Defendant Continental has breached its implied warranties to plaintiff, as described in the immediately preceding paragraph, by virtue of the defective manufacture of the aerosol cans which resulted in the leakage and damage described in the immediately preceding paragraphs. As a result of the foregoing breaches of implied warranty, plaintiff has suffered damages in the amount of $400,-000.”

Count HI of the amended complaint, as amended, alleges breaches of implied warranties from Pittsburgh to plaintiff.

Plaintiff appeals on the theory “that there were direct contractual relationships between Plaintiff and Continental and that, consequently, the defense of lack of privity is not applicable. In any event, even if it be assumed that the necessary contractual connection is lacking, the facts disclose that Continental’s implied warranties of fitness and merchantability were intended for Plaintiff’s benefit. On this view, Plaintiff has a direct cause of action against Continental as the third-party beneficiary of the agreement for the sale of cans by Continental to Pittsburgh,” and that “since the defense of lack of privity is everywhere on the wane, that outmoded defense should not bar Plaintiff’s suit against Continental.”

The theory of defendant Continental is that “this is a commercial transaction, governed by the law of contracts, the Sales Act and Uniform Commercial Code. Plaintiff’s complaint fails to state a contractual relationship or any other legally recognizable relationship between plaintiff and defendant to support the implied warranties which plaintiff has alleged. It is also the theory of the defendant that the doctrine of strict liability in tort has no application to the instant case, and privity of contract is necessary to plaintiff’s cause.”

Initially, we note that defendant’s motion for judgment for failure to state a cause of action admitted all facts well pleaded, and although the second amended complaint, as amended, is construed strictly against plaintiff, it is entitled to all reasonable inferences which can be drawn from the well pleaded facts. (West Towns Bus Co. v. Division 241 Amalgamated Ass’n of Street Elec. Ry. & Motor Coach Employees of America, AFL-CIO, 26 Ill App2d 398, 403, 168 NE2d 473 (1960).) However, defendant’s motion does not admit plaintiff’s interpretation of facts or exhibits embodied in the complaint (Lustgarten v. First Federal Savings & Loan Ass’n, 42 Ill App2d 86, 90, 191 NE2d 434 (1963)), nor does it admit conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest. Washington v. Courtesy Motor Sales, Inc., 48 Ill App2d 380, 382, 199 NE2d 263 (1964).

As to the privity issue, plaintiff argues that “the defense of lack of privity is not applicable to this case.” Reliance is placed on Suvada v. White Motor Co., 32 Ill 2d 612, 210 NE2d 182 (1965), and cases from other jurisdictions which adopt the so-called “strict tort liability” doctrine. Defendant urges that “the instant case cannot meet the requirements for the application of the doctrine of strict liability in tort.” We agree. We are not persuaded that the doctrine of “strict tort liability” should be applied here. Therefore, we have decided to base our decision in the instant case on the third-party beneficiary theory, which plaintiff urges.

Plaintiff’s authorities in support of its theory that it “has a direct cause of action against Continental as the third-party beneficiary of the agreement for the sale of cans by Continental to Pittsburgh,” include 12 ILP, Contracts, § 265, pp 443, 444:

“The rule is well established in Illinois that where a person makes a promise to another, based on a valid consideration, for the benefit of a third person, such third person may enforce the contract, without proof of any consideration flowing from such third person. . . .
“. . . It is not essential to the third person’s right to enforce a contract made for his benefit that he be expressly named in the contract if he is otherwise sufficiently described or designated, and he may even be one of a class of persons if the class is sufficiently indicated.
“. . . The promisee of a contract made for the benefit of a third person may sue for its breach and recover any damage caused to him by such breach.”

The third-party beneficiary rule in Illinois is stated in Carson, Pirie, Scott & Co. v. Parrett, 346 Ill 252, 257, 258, 178 NE 498 (1931):

“The test is whether the benefit to the third person is direct to him or is but an incidental benefit to him arising from the contract. If direct he may sue on the contract; if incidental he has no right of recovery thereon. . . .
“. . . The rule is, that the right of a third party benefited by a contract to sue thereon rests upon the liability of the promisor, and this liability must affirmatively appear from the language of the instrument when properly interpreted and construed. The liability so appearing can not be extended or enlarged on the ground, alone, that the situation and circumstances of the parties justify or demand further or other liability.”

Plaintiff also argues that “under the Uniform Commercial Code, chap 26, Smith-Hurd Ann Stats (effective July 1, 1962) Sections 2-314 and 2-315, the seller of goods impliedly warrants ‘that the goods shall be merchantable,’ which, among other things, means that they ‘are fit for the ordinary purposes for which such goods are used. . . .’ He also impliedly warrants, where he knows the particular purpose for which the goods are intended and that the buyer is relying upon his skill or judgment, that ‘the goods shall be fit for such purpose.’ Section 2-318 extends seller’s warranties, whether express or implied, to members of the buyer’s household and guests in his house, and sellers may not exclude or limit the operation of this extension. The Uniform Commercial Code Comment, Smith-Hurd Ann Stats chap 26, § 2-318, p 265, makes it clear that the extension to these specified third-party beneficiaries is not intended to exclude others, stating that ‘the section is neutral and is not intended to enlarge or restrict the developing case law on whether the seller’s warranties, given to his buyer who resells, extend to other persons in the distributive chain.’ ”

Defendant, as to plaintiff’s third-party beneficiary theory, argues that “there are no allegations in plaintiff’s complaint as to the existence of any contract between defendant Continental and defendant Pittsburgh Railways Co. or that any such contract was breached. In order to enable a third person to enforce a contract to which he is not a party, it must appear that the contract was made for his benefit, or in other words, that there was a contractual intent to benefit the third person. . . . Lacking such allegations, plaintiff’s amended complaint fails to state any cause of action as a third party beneficiary.” Defendant also argues that “even if Plaintiff alleged the existence of a contract between the defendant Continental and defendant Pittsburgh, such contract would only incidentally benefit plaintiff.”

We do not agree with these contentions of defendant. As argued by plaintiff, the third-party beneficiary rationale is playing an increasing and significant role in litigation regarding commercial transactions, even in the absence of privity of contract. (2 Williston on Contracts, § 356, pp 823-834, § 378A, p 967; Hardman v. Helene Curtis Industries, Inc., 48 Ill App2d 42, 60, 198 NE2d 681 (1964); 50 New Walden, Inc. v. Federal Ins. Co., 39 Misc2d 460, 241 NYS2d 128 (1963); Beck v. Spindler, 256 Minn 543, 99 NW2d 670 (1959).) Although the contractual negotiations in the instant case were completed before the effective date of the Illinois Uniform Commercial Code, we note that it provides that the seller of goods impliedly warrants that the goods shall be merchantable and fit for the ordinary purposes for which the goods are used, and also where the seller is aware of the specific purpose that the goods are fit for that purpose. See, also, section 15 of the old Sales Act (Ill Rev Stats, c 121½, § 15 (1)).

In 17 Am Jur2d, § 302, p 721, it is said:

“Stated in general terms and apart from the specific limitations thereon, the present rule in nearly all American jurisdictions is that a third person may, in his own right and name, enforce a promise made for his benefit even though he is a stranger both to the contract and to the consideration. In other words, it is not necessary that any consideration move from the third party; it is enough if there is a sufficient consideration between the parties who make the agreement for the benefit of the third party. This doctrine, originally an exception to the rule that no claim can be sued upon contractually unless it is a contract between the parties to the suit, has become so general and far-reaching in its consequences as to have ceased to be simply an exception, but is recognized as an affirmative rule, subject to certain limitations and exceptions. This rule has been embodied in the statutes of some jurisdictions.”

Section 303, p 727:

“The basis of the rule permitting the beneficiary to sue, which is probably more frequently stated than any other at the present time, is that ‘the law, operating on the act of the parties, creates the duty, establishes the privity, and implies the promise and obligation, on which the action is founded.’ Also, it is sometimes said that the third person is permitted to sue in order to avoid circuity of action or a multiplicity of suits. In essence, the reason for the doctrine is no more nor less than that it is just and practical to permit the person for whose benefit the contract is made to enforce it against one whose duty it is to pay, and the doctrine has prevailed in the United States on the strength of its reasonableness and necessity, rather than upon any preconceived general theory of law.”

Since the Uniform Commercial Code, effective in 1962, adopts the third-party beneficiary language in discussing the effect of express and implied warranties, it seems that this doctrine should be extended here to a situation where a seller makes a product for a user who is not a direct buyer, but with whom the seller has direct dealings. “Diligence was owing, not only to him who ordered, but to him also who relied.” Glanzer v. Shepard, 233 NY 236, 135 NE 275, 277 (1922).

While plaintiff has not included in his complaint, as amended, the contract between Continental and Pittsburgh, this does not affect the validity of plaintiff’s theory. As noted previously, plaintiff alleged that Continental “knew the particular purpose to which plaintiff intended and did in fact put the aerosol cans and for which they were required,” and that plaintiff “relied upon the skill and judgment of agents and representatives of . . . Continental in the design, engineering and utility of the aerosol cans used by it.” We think these allegations, if proved, are sufficient to make plaintiff a beneficiary of any implied warranties extended to Pittsburgh by Continental. It was for plaintiff’s use that the cans were manufactured, and it was for plaintiff’s purpose, known to Continental, that the cans were impliedly warranted to be fit. In these circumstances, the reliance by plaintiff was more than incidental. See Acme Brick Co. v. Hamilton (Ark), 238 SW2d 658 (1951).

We hold, therefore, that the implied warranty of fitness imposed by law on a manufacturer may be enforced directly against the manufacturer by a third-party user, where, as alleged in the instant case, the manufacturer (1) was aware of the purpose for which the product was to be put, and (2) knew of the third-party user’s reliance that the product would be fit for the purpose intended. Therefore, plaintiff here was not required to allege the terms of the contract between Pittsburgh and Continental in order to fully state plaintiff’s alleged cause of action against Continental.

For the reasons given, the judgment entered in favor of defendant Continental and against plaintiff is reversed and the cause is remanded with directions to proceed in accordance with the views expressed herein.

Reversed and remanded with directions.

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


author: MR. PRESIDING JUSTICE KLUCZYNSKI

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Hohmann, Defendant-Appellant.
    Gen. No. 50,511.
    First District, First Division.
    June 27, 1966.
    Sherman Carmell, 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. PRESIDING JUSTICE KLUCZYNSKI

delivered the opinion of the court.

Defendant, John Hohmann, was found guilty by the court of the crime of burglary. He appeals, contending the evidence is insufficient to sustain the conviction.

At about 6:00 a. m. on October 22, 1964, Robert Davis left for work, leaving his apartment at 1742 W. Belmont Avenue, Chicago, unoccupied. At approximately 10:00 a. m., Merhl Smith, his uncle, driving a Flash cab, was hailed by the defendant whom Smith said came from the gangway where Davis lived. He was carrying a bundle wrapped in “some type of a sweater or shirt.” At defendant’s direction, Smith drove him to a grocery store at Willow and Dayton Streets. During the course of the ride, Smith noticed that defendant changed shoes and placed shoe trees in the shoes which he had removed from his feet. He also saw, when the bundle was open, an orange gun cleaning kit which looked familiar. Upon arrival at the destination, defendant went into the store to get additional money for the fare, leaving the bundle in the cab. Smith’s curiosity having been aroused, he opened the bundle and saw the gun kit and shoe trees which he had previously seen at Davis’ home, and also a leather holster.

Defendant returned, paid the balance of the fare and reentered the store. Smith parked his cab around the corner, called Davis at his place of employment, and made arrangements to meet him at the grocery store. Upon his return he saw defendant leave the store, enter an alley and drop something in a trash can. Smith went to the trash can and recovered the set of shoe trees he previously had seen in the bundle. He then saw defendant hail another Flash cab which he followed but lost in traffic. He hailed a passing police car, made an emergency call to the Flash cab office, and with the police went to 2216 Orchard Street where they saw defendant and another man, Leroy Kummer. Defendant was apprehended and taken back to the store at Willow Street where Davis was waiting. Davis identified a sweater and a pair of shoes defendant was wearing as his property. When Davis asked defendant why he burglarized his home, defendant told him that if he would not press charges and get him out of the arrest, defendant would see to the return of his merchandise.

Davis, in company with the police, then went to his home where he found the door ajar with the broken half of a butcher knife still stuck in the door jamb. An inventory of the apartment revealed that there was missing a sweater, a pair of shoes, a .38 caliber revolver and a .32 caliber automatic, a holster and a gun cleaning kit.

Davis said he knew the defendant vaguely, having met him two days previously on October 20, 1964, at a gas station; they went to a tavern for a few beers after which Davis invited the defendant to his home for dinner; that when defendant left, two and a half hours later, he had not been given permission to take any property.

Defendant, Hohmann, testified that he went to Davis’ home on October 22, found no one there, walked out to the cab, and proceeded to the grocery store at Willow and Dayton. He had a shirt and a pair of pants, wrapped together, under his arm. These had been left at his house to be washed by his mother and he was returning them. He had gone to the grocery store, where his sister had an account, for money to pay the cab. Upon coming out to the cab he recovered the bundle. He later went to a tavern, called Leroy Kummer, and took a cab to Hummer’s house. He admitted wearing the sweater and shoes when arrested. He said he had purchased the shoes. He denied the burglary, changing shoes in the cab, dropping the old shoes in the trash can, or making the statement to Davis regarding the return of his property.

Defendant called Leroy Kummer to corroborate the meeting with him on the morning of October 22 at Hummer’s home. On cross-examination Kummer could not recall whether defendant brought anything with him, or that anything unusual happened. He then admitted giving the police a statement that defendant came to his home at 2116 N. Orchard St., about 10:30 a. m.; that he took two guns out of his belt and accidently discharged one of them. When Kummer looked out of the window he saw the police. Defendant put the guns on a bench in an enclosed porch and Kummer picked them up, putting them in his belt. When they left the apartment, defendant was apprehended and Kummer ran away. He was arrested the next day.

Defendant argues that although there was evidence that the door was forced open with a butcher knife, there was no testimony that the door had been previously locked and entry effected by force. Defendant was charged with the violation of section 19-1 of the Criminal Code, (Ill Rev Stats 1963, c 38, § 19-1) which is as follows:

“A person commits burglary when without authority he knowingly enters into ... a building ... or any part thereof, with intent to commit therein a felony or theft.”

Proof of force was not essential, still the evidence indicated that force was used, and the defendant admitted being in the vicinity at the approximate time. Burglary can seldom be proved by direct evidence of actual breaking and entry, and in most cases such facts must necessarily be inferred from other facts and circumstances proved or admitted. People v. Franceschini, 20 Ill2d 126, 130, 169 NE2d 244 (1960).

The evidence and circumstances sufficiently warranted a finding that defendant came out of the gangway, was in immediate possession of some of the stolen property, and had no authority to enter the premises.

Finally, defendant says the sentence rendered is illegal because the court failed “to inquire of the defendant if he had anything to say on his own behalf prior to sentence.” The defendant advocates that we apply a presentence allocution rule as is codified in Rule 32 (a) of the Federal Rules of Criminal Procedure, which provides :

“. . . Before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment.”

Section 1-7 (g) of our Criminal Code (Ill Rev Stats 1965, c 38, § 1-7(g)), covering this issue, provides:

“For the purpose of determining sentence to be imposed, the court shall, after conviction, consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if any, as to the moral character, life, family, occupation and criminal record of the offender and may consider such evidence in aggravation or mitigation of the offense.”

The record before us discloses that the court did hear extensively the matter of aggravation and mitigation allowing both defendant’s counsel and the defendant himself to participate in the discussion affecting the sentence imposed. We find that both our Criminal Code provision and the advocated rule were adhered to and see no need to apply a new concept. For these reasons the conviction is affirmed.

Affirmed.

MURPHY and BURMAN, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Raybourn (Impleaded), Defendant-Appellant.
    Gen. No. 50,698.
    First District, First Division.
    June 27, 1966.
    Roger K. O’Reilly, of Wheaton, for appellant and James Raybourn, pro se, of Joliet, appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Kenneth L. Gillis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE KLUCZYNSKI

delivered the opinion of the court.

Defendant, James Raybourn, appeals from a bench trial conviction for murder. He and a Stanley Spinks were charged in a two-count indictment with murder and voluntary manslaughter of one Samuel Seay. Spinks, also found guilty, filed a separate appeal which has been decided by the Third Division.

Raybourn, in the original brief and argument raises the contention that the evidence fails to support a murder conviction and “tends to show at the most guilt of the crime of manslaughter.” In a supplemental brief and argument filed pro se, Raybourn argues that he is not legally responsible for the death of Seay and is not guilty of murder or manslaughter.

Margaret Johnson, who lived with Samuel Seay in his mother’s home, was walking with him on 47th Street in Chicago at about 1:30 a. m. on April 6, 1963. As they crossed St. Lawrence Avenue, someone called him. He turned and went back around the corner. She continued to a tavern, stayed there a few minutes, came out and saw him around the corner with Raybourn and Spinks. “They were jumping on him. They had him up side the wall and they were hitting him in the stomach.” She picked up an empty wine bottle and ran across the street to his aid. Raybourn told her not to come any closer and just after he said that, Spinks took a gun out of his pocket and shot Seay. Raybourn and Spinks then ran away. She ran to a police car parked across the street from the tavern and summoned the police. William Beavers, the police officer in the car who had seen Mrs. Johnson enter and leave the tavern previously, heard the shot and was on his way to the scene. He pursued the two men north on St. Lawrence to an alley near 46th Place where they jumped over a fence and ran into a basement. When they came out of the basement they were arrested and searched. Beavers went into the basement and recovered a .45 caliber army type pistol. After being returned to the scene the men were identified by Mrs. Johnson as the ones “who shot Seay.” Spinks, when asked why he shot Seay, said: “The dirty M. F. should have been killed.”

At the police station the men first denied the shooting and stated that Mrs. Johnson had shot Seay. They also said the .45 caliber gun was not the one used. Beavers returned to the basement and recovered another gun, a .25 caliber automatic.

At the trial the defendants testified that they had remonstrated with Seay, who seemed under the influence of liquor, about his participation four hours earlier in an attempted robbery of Raybourn, and also about a statement he was supposed to have made that he intended to rob Spinks. Spinks said that he and Seay were lifelong friends and that the main argument was between Raybourn and Seay, so he walked away and as he turned around he saw Seay reach in his belt for a gun. He jumped on him, grabbed his gun hand and started to wrestle with him. Raybourn seized the other hand also wrestling with him. Raybourn let loose and Spinks took out a gun. One of the guns went off and he did not know whether he or Seay was struck. He panicked and ran away. He did not recall making the remark “I wish I had killed him” or anything else.

Raybourn and Seay were also long-time friends. Raybourn testified that Seay made his living as a robber and pickpocket and that at first Seay joked about the abortive robbery, and then became “somewhat abusive.” Spinks got into the argument. Raybourn said he felt something was wrong for Seay to be arguing, since “we” could physically beat him in a fight. So he patted Seay in the midsection with his hand, saying: “You must have a gun somewhere.” Raybourn testified that as he “reached,” Seay drew back and reached for his gun. Raybourn grabbed one arm and Spinks the other. “We was scuffling.” Raybourn then saw Mrs. Johnson pick up a bottle and cross the street. He thought she was going to hit Spinks, whose back was to her. He told her not to come any closer, rushed in and hit her, knocking her down. He testified that he saw Seay fall but did not see him shot. He took Seay’s gun from his hand after he fell because he thought Seay was going to shoot Spinks in the back. He ran away and tossed the gun into a garbage can.

The defense also introduced evidence that Spinks had been informed of Seay’s intention to rob him; that he had robbed other people.

Raybourn in his pro se brief, argues “that the evidence of the State, viewed in the light most favorable to it, merely shows that the Appellant [Raybourn] and the co-defendant [Spinks] were giving the deceased a thrashing (common design and original purpose); that the deceased’s girl friend intervened and Appellant turned away from the altercation in order to remonstrate with her and at that time, for reasons far from clear in the record, ‘the co-defendant took a gun out of his pocket and shot Sam Seay.’ ” He says the killing was clearly not part of the common design or a natural and probable consequence of the common design.

Raybourn admits his voluntary participation with Spinks in the thrashing of Seay which necessarily required the use of force and violence that could and did result in Seay’s death. He attempts to escape responsibility by saying the shooting was an impulsive act of Spinks for which he is not accountable. We do not agree. It has been consistently held that where one joins others, bent on illegal acts which are dangerous or homicidal in character, or which will probably or necessarily require the use of force and violence that could result in the taking of life unlawfully, he becomes criminally liable for any wrongdoings committed by other members of the group in furtherance of the common purpose, or as a natural or probable consequence thereof, even though he did not actually participate in the overt act himself. See People v. Hughes, 26 Ill2d 114, 185 NE2d 834 (1962), and People v. Bracken, 68 Ill App2d 466, 216 NE2d 176 (1966).

The trial court made comment that he believed the story of the witness, Margaret Johnson, and disbelieved the testimony of the defendants. After examining the record, we find such evaluation to be not so improbable, unreasonable or unsatisfactory as to leave a doubt of Raybourn’s guilt. We further hold that the facts adduced, and to which the trial court gave credence, sustain the conviction of murder. The judgment is affirmed.

Affirmed.

MURPHY and BURMAN, JJ., concur.


author: MR. JUSTICE BURMAN

text:
    Louis J. Devlin and Josephine Devlin, His Wife, Plaintiffs-Appellants, v. Louis J. Wantroba, Defendant-Appellee.
    Gen. No. 50,680.
    First District, First Division.
    June 27, 1966.

      John J. Kelly, Jr., of Chicago, for appellants.
    Querrey, Harrow, Gulanick & Kennedy, of Chicago (John F. Skeffington, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

Plaintiffs brought suit in June of 1964 for injuries suffered in an automobile accident occurring in Chicago in May of 1962. Defendant filed his answer, along with a motion to dismiss, on the grounds that the action was not brought within two years after the occurrence from which it arose, and was therefore barred by virtue of the provisions of the applicable statute of limitations (Ill Rev Stats, c 83, § 15 (1963)). In his reply to that motion, supported by affidavits, plaintiffs claimed that the defendant was estopped from asserting the statute of limitations as a defense by his insurer’s conduct in negotiating toward a settlement of the case. The trial court, however, granted defendant’s motion to dismiss the suit, and this appeal followed. Plaintiff here contends that the affidavits raised material and genuine disputed questions of fact relating to estoppel and waiver, and that those questions should have been submitted to a jury rather than being summarily decided by the trial judge.

Since the defendant did not file any counteraffidavits in support of his motion to dismiss, we must look to the affidavits of plaintiff himself, of his doctor, and of his lawyer, all filed on plaintiff’s behalf, to determine whether a question was raised as to whether the conduct of the defendant’s insurer in negotiating toward a settlement of the case constituted an estoppel in pais. According to those affidavits, at the time of the accident on May 27, 1962, plaintiff determined the name of defendant’s insurer, and called the carrier’s adjuster the following day. That evening a Mr. R. H. Schroeder of the adjuster’s office visited the plaintiffs at their home and took their written statements. In the course of that visit Schroeder told plaintiffs, “. . . that he wanted us to get well as they had plenty of money.” Thereafter, plaintiff called Schroeder periodically, and each time Schroeder asked for the doctor’s report as to the injuries. Plaintiff told Schroeder that if he were interested in settling the case it was his duty to contact plaintiff’s doctor, Henry J. Niemeyer. On November 10, 1962, Schroeder asked plaintiff for a list of their expenses to date, which was supplied a few days later, and assured plaintiffs that Mr. Devlin “did not need a lawyer; that he, Mr. Schroeder, could settle this case.” Schroeder thereafter attempted to obtain the doctor’s report from Dr. Niemeyer, who told him about December 15, 1962, that he, “could not and would not render a medical report because of [his] findings.” Schroeder told Niemeyer that he hoped plaintiffs would not get a lawyer because Schroeder, “had gone along with them so far.”

On January 7, 1963, plaintiffs retained counsel, who on January 8th sent his attorney’s lien to the defendant. On January 21, 1963, the adjusters wrote counsel, acknowledging his interest, requesting medical reports and various items of special damages, and closing as follows: “At such time as you are prepared to discuss settlement of this matter we will be pleased to take it up with you.” Thereafter, Schroeder periodically called counsel requesting the medical reports, but counsel was no more successful in obtaining them than Schroeder had been. Each time the report was requested, Dr. Niemeyer told counsel that plaintiffs, “were still treating with him; that he could not state conclusively, based on medical certainty, whether or not Mr. Devlin’s injuries were or were not of a permanent nature; that he would be derelict to his patient were he to render a medical report whilst his findings were inconclusive.”

The period of limitations expired on May 27, 1964 (Ill Rev Stats, c 83, § 15 (1963)). On June 15, 1964, counsel received a medical report from Dr. Niemeyer, and forwarded copies to the adjuster. The adjuster informed him by telephone that since the period of limitations had expired the matter would be referred to the carrier. The complaint was filed on June 30,1964.

The basic test for determining whether a defendant’s conduct in negotiating toward a settlement of a given case estops him from relying upon the statute of limitations was stated as follows in Dickirson v. Pacific Mut. Life Ins., 319 Ill 811, 150 NE 256:

The rule in this State and elsewhere, pertaining to waiver in a case of this kind, requires that the conduct of the party against whom such a waiver is claimed be such as to cause the other party to change his position by lulling him into a false security, thereby causing him to delay or waive the assertion of his rights to his damage. Negotiations for an adjustment of a claim which do not so justify the claimant in delaying action cannot estop the insurer from insisting upon a strict compliance with the conditions of the limitation. It is necessary and proper that claims of this character be investigated, and the fact that the insurer negotiates with the claimant is in nowise conduct amounting to a waiver by estoppel unless there is contained in the negotiation that which is calculated to lull the claimant into a false security. (319 Ill at 318).

The court observed that where there is sufficient evidence to go to the jury, the question of waiver is a question of fact; but concluded that on the facts of that case there was no evidence of waiver of the defense of the statute of limitations and that therefore the court had erred in refusing to take the case from the jury.

Kinsey v. Thompson, 44 Ill App2d 304, 194 NE2d 565, relied upon heavily by the plaintiffs, was an appeal from an order of the trial court granting the defendant’s motion to dismiss on the grounds that the two-year period of limitations had expired. According to the plaintiff’s affidavits in that case, liability had been conceded by the defendant’s insurer, and the only question remaining was the amount of the settlement. Negotiations on that point proceeded both before and after the period of the statute of limitations had run. The Appellate Court reversed the dismissal of the suit, holding that under those circumstances the question of waiver or estoppel was a question of fact which should be determined by a jury. 44 Ill App2d at 307, 308.

We have carefully reviewed the plaintiffs’ affidavits in the case at bar, and conclude that there was no substantial question raised as to whether any conduct of the defendant or his insurer was calculated to lull the plaintiff into a false security, or in fact had that effect. Viewing the affidavits most favorably to the plaintiffs, they establish only that the adjuster investigated the accident and commenced settlement negotiations. Liability was never conceded in this case, as it was in Kinsey. Although about seven months after the accident the adjuster’s agent urged plaintiffs not to employ an attorney, this apparently did not lull plaintiffs into a false security, for they employed counsel about a month later. Neither the plaintiffs nor their attorney were told not to file suit, or that a suit would not be necessary. Counsel, in his affidavit, did not aver that he took part in any settlement negotiations, or that any offers were ever made or rejected. The delay in the settlement negotiations appears to have resulted primarily from the unavailability of the doctor’s report. In view of the efforts of the adjuster to obtain that report, we conclude that the delay occurred despite the efforts made on behalf of the defendant, not because of them.

Under these facts and circumstances, we are constrained to hold that the affidavits filed on plaintiff’s behalf were insufficient in law to raise a question of waiver or estoppel, and that the trial court was correct in dismissing the complaint. The judgment must therefore be affirmed.

Judgment affirmed.

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


text:
    Mr. and Mrs. Robert Harwig, et al., Plaintiffs-Appellants, v. Village of Hickory Hills, a Municipal Corporation, Anthony Mase, Building Commissioner of Hickory Hills, Standard Bank and Trust Company, as Trustee Under Trust #1651, Defendants-Appellees, and Kroon Land Development Corporation, Defendant-Intervenor-Appellee.
    Gen. No. 50,721.
    First District, First Division.
    June 27, 1966.

      Schumacher, Gilmore, Staub & Payne, of Chicago (George W. Jones, of counsel), for appellants.
    Vincent R. Ewald, of Chicago, for appellees, Village of Hickory Hills and Anthony Mase.
    Haskins, Maguire & Haskins, of Chicago (Robert E. Haskins and C. W. Eckert, of counsel), for appellee, Kroon Land Development Corporation.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This action was brought by the owners of residences in the vicinity of a tract in Hickory Hills, Illinois, attacking an ordinance of that municipality rezoning the subject property to permit the construction of apartment buildings. The complaint sought a declaratory judgment that the ordinance was void and unconstitutional, and requested injunctions preventing the building commissioner of Hickory Hills from issuing building permits for the construction of apartment buildings, and preventing the owner of the property from applying for such permits. Temporary injunctions were entered as requested, and the case proceeded to a trial on the merits. By its order of July 1, 1965, the trial court dismissed the suit, finding that the rezoning ordinance was, “valid and constitutional in all respects, and bears a real and substantial relation to the public health, safety, morals, comfort, convenience and general welfare of the People.” Plaintiffs bring this appeal from that order.

The subject property, irregularly shaped and consisting of about five acres, is located on the north side of 95th Street, a four-lane arterial highway. Zoned “R-2” for many years to permit only single-family residences, the property remained unimproved with the exception of a single-family residence constructed on one portion. A wooded ravine traverses the rear portion of the property, giving that portion the appearance of a park.

To the east of the subject property, along the north side of 95th Street, are located a church and single-family dwellings, although the strip of property fronting on 95th Street is zoned primarily for business uses. The land located north of the subject property is zoned and used for single-family dwellings. It is within this area that the residences of the appellants are located. To the west of the subject property, along the north side of 95th Street, are located a single family-dwelling, apartment buildings, a restaurant, and a tavern. That property is zoned for multiple dwellings and for business uses. To the south of the subject property, across 95th Street, are located apartment buildings and an elementary school, which are within the village limits of Hickory Hills, and a forest preserve and golf course which are outside those limits.

In June of 1964 the record owner of the property, the Standard Bank and Trust Company, as Trustee under Trust #1651, contracted to sell it to the Kroon Construction Company, contingent upon its rezoning from R-2 to R-4 to permit construction of apartment buildings. Kroon Construction Company assigned its interest in the contract of sale to the Kroon Land Development Company. A petition was filed requesting the zoning change and in due course, after extensive public hearings at which the plaintiffs were afforded an opportunity to be heard, the zoning of the subject property was changed to R-4 by an ordinance passed August 27, 1964. Plaintiffs filed this suit in October of 1964. In January of 1965, the Village passed a comprehensive zoning ordinance, which changed the designation of the zoning of the subject property to “R-5,” but did not affect the existing restrictions upon its use.

Plaintiffs allege that the action of the village authorities in rezoning the subject property to permit the construction of apartments was arbitrary, a clear abuse of legislative discretion, and bore no substantial relation to the public health, safety, and welfare of the community; and that the trial court’s order was based upon the erroneous conclusion that the reasonableness of the zoning ordinances was debatable.

The basic rules to be applied by Illinois courts in passing upon the validity of zoning ordinances have been well-defined in a long line of cases. They were summarized by our Supreme Court as follows in Elmhurst Nat. Bank v. City of Chicago, 22 Ill2d 396, 176 NE2d 771:

... we note the great bulk of cases reiterating the rules that a zoning ordinance is presumed valid; that the burden is upon the person attacking its validity to establish by clear and affirmative evidence that it is arbitrary; that the courts should not overrule the decisions of municipal authorities where the reasonableness of the classification is debatable, and the action of the municipal authorities is not capricious; and that the validity of each zoning ordinance must be determined on its own facts and circumstances. (22 Ill2d at pp 401, 402.)

The court went on to list the following as relevant factors in determining the reasonableness of zoning ordinances: (1) the extent to which the value of the property is diminished by restrictions; (2) the extent to which the removal of the restriction would depreciate the value of other property in the area; (3) the reliance on existing zoning ordinances; (4) the suitability of the property for the zoned purpose; (5) the existing uses and zoning of nearby and surrounding property; and (6) the extent to which the ordinance promotes health, safety, morals or general welfare of the public. (22 Ill2d at page 402).

Plaintiff’s first witness in this case was George H. Kranenberg, an expert planning and zoning consultant. He testified that in his opinion the highest and best use of the subject property, from a planning and zoning standpoint, would be achieved if the portion fronting on 95th Street, for a depth of 200 feet, were allowed to remain zoned R-5, while the balance of the property, which is further removed from 95th Street, were used for single-family dwelling units. He explained that while the portion fronting on 95th Street takes its character from the other property fronting on that street, the northern portion of the subject property derives its character from the single-family residential area into which it intrudes.

Joseph A. Nowicki, a professional real estate appraiser, testified on behalf of the plaintiffs that the construction of multiple-family dwellings on the subject property would cause a monetary loss in the value of the neighboring properties. He estimated that this loss would amount to $3,000 in the case of appellant Doyle, and lesser amounts in the cases of other residences. The appellants and the owners of four other residences near the subject property testified in their own behalf that their properties would depreciate by amounts ranging from $5,000 to $10,000.

Robert Kroon, a real estate developer and president of Kroon Construction Company, testified that defendant-intervenor plans first to remove the existing vacant dwelling from the subject property, and then to fill the ravine at a cost of $50,000 to $75,000 and proceed with the construction of 21 twelve-flat buildings. He testified that when he develops the subject property, he plans to improve 84th Court, which now dead-ends at the subject property, install a storm sewer and curb, and dedicate it to the city. He further testified that in his opinion there is a very definite need for apartments in the Hickory Hills area.

Hugh F. MacKinnon, a real estate broker and appraiser, testified on behalf of defendant-intervenor that the northern portion of the subject property would not be suitable for development for single-family residences because the cost of filling in the ravine would be prohibitive. John McNamara, a real estate broker, appraiser and builder, testified on behalf of the defendant-intervenor that the planned construction was, “an ideal setup,” ■and an “asset to the area,” and that it would be to the general welfare of the Village and of the balance of the community.

After a careful review of the record, we are constrained to agree with the trial judge that the plaintiffs did not overcome by clear and convincing evidence the presumption of the validity of the duly enacted municipal ordinance; nor did they show that the ordinance is unreasonable, arbitrary, or without substantial relation to the public health, safety, morals and welfare. Bennett v. City of Chicago, 24 Ill2d 270, 274, 181 NE 2d 96. Plaintiffs own expert, Kranenberg, testified that a portion of the subject property was properly rezoned for multiple dwellings. The testimony of the other experts raises a substantial question as to the economic feasibility of the use of the other portion for single-family dwellings, in view of the necessity of first filling in the ravine. As to the depreciatory effect of the proposed construction, plaintiffs’ expert appraiser estimated the resultant decline in the values of plaintiffs’ properties at a fraction of what plaintiffs themselves foresaw. There was testimony as to the need for apartments in Hickory Hills, and as to other benefits to the Village from the proposed development. Considering the record as a whole, we conclude that plaintiffs’ evidence at best raised only a debatable question as to the reasonableness of the ordinance; and in such circumstances the decision is one for the legislative authorities, not for the courts. Liberty Nat. Bank of Chicago v. City of Chicago, 10 Ill2d 137, 139 NE2d 235; Urann v. Village of Hinsdale, 30 Ill2d 170, 195 NE2d 643.

Plaintiffs cite two cases in which the neighbors of tracts of property formerly zoned for residential uses successfully attacked ordinances reclassifying those tracts to permit other uses. In Treadway v. City of Rockford, 28 Ill2d 370, 192 NE2d 351, the Supreme Court struck down as unreasonable and capricious an ordinance rezoning property to permit the construction of a shopping center. But in that case, the proposed use was the insertion of a commercial development into an area which was residential in character for three blocks in all directions, and continuing to develop in that fashion. Furthermore, the court found that the subject property had a substantial value for residential purposes, and that no unusual problems would be encountered in its development for that purpose. In the case at bar, we note that there are apartment buildings across the street and adjacent to the subject property; and that there are definite suggestions of problems in connection with the development of the property for single-family dwellings.

In Garner v. City of Carmi, 28 Ill2d 560, 192 NE2d 816, the neighbors of a tract rezoned from residential to commercial to permit the construction of a gas station successfully attacked the validity of the ordinance. The court cited the severe damage that would result to the value of the neighboring lots, and enumerated other detriments to the community from the proposed development. The court concluded that the ordinance constituted an unreasonable invasion of the property rights of the surrounding homeowners, who had purchased their properties in reliance upon the original zoning ordinance. In the case at bar, which involves the construction of apartments, not a gas station, we do not find clear and convincing evidence either of such effects upon the neighboring tracts or of other detriments to the community comparable to those found by the court in Garner.

On the basis of this record, we must hold that the finding of the trial judge, that the rezoning ordinance was reasonable and therefore valid, was not contrary to the manifest weight of the evidence. The judgment upholding the validity of the ordinance and dismissing the complaint is affirmed.

Judgment affirmed.

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