text:
    People of the State of Illinois, Appellee, v. Claude Oatis, Appellant.
    Gen. No. 51,148.
    First District, First Division.
    August 1, 1966.

      Amiel G. Hall and Howard T. Savage, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

After a bench trial, defendant was found guilty of forcible rape and sentenced to the penitentiary for a term of 8 to 20 years. On appeal, defendant asserts the evidence fails to establish penetration or the use of force.

The complaining witness, 20 years old, testified that on the morning of June 11, 1963, she left her home at 5:15 to take a bus to a department store where she worked. She lived on South Eberhart and was walking west on 74th Street when a car pulled into an alley in front of her. A man got out of the car with a tire iron in his hand. He pushed and dragged her into the back seat of his 2-door car. During this time she was begging him to let her go. He told her to be quiet or he would hit her. He drove her “somewhere by the expressway or tollway between Champlain and took me into the alley. There was no traffic in the alley. We passed no cars at this time. When he stopped in the alley, he told me to pull my clothes off. ... I was pleading with him. ... He told me if I didn’t hurry up he would help me get out of my clothes. I told him that I was on my period. He said he didn’t care. He told me to get my clothes off or he was going to hurt me, so I got out of my clothes. I pulled my panties down and he put on a rubber and had intercourse with me. I was pleading with him and crying. After he had the relations with me, he drove me back to where I was. . . . About twenty minutes elapsed from the time he put me in the car and the time he dropped me back at 74th and Eberhart. When I got out of the car, I ran upstairs and rang the bell and my aunt came downstairs and got me. She called the police. The police came, they talked to me and asked me questions and took me to the hospital. I next saw the defendant, Claude Oatis, at a jailhouse on 75th Street that night. I identified him there.”

On cross-examination, she testified, “I had never known Mr. Oatis before. I had never seen him in the Invicta Lounge at 74th and South Parkway. I have never been there. . . . The only conversation I had in the car with Mr. Oatis was pleading with him to leave me alone. . . . He just about drug me to the car. ... He pushed me into the back seat. ... I pleaded with him to let me go. He told me if I didn’t shut up he would hurt me, he did not say anything else to me. ... I got out of my clothes when he told me he was going to hurt me. He did not strike me at any time. ... He said that he had been watching me all the time. After the relationship, he took me back to 74th and Eberhart. I got out of the car and ran upstairs. He waited until I opened the door and got out. As I was running, I turned around and saw the license plate. I didn’t know what kind of a car it was exactly, I was a bit excited. I was afraid. ... I gave a statement to the police officer.”

Another witness for the State, a police officer assigned to the Homicide-Sex Unit, testified that on the evening of June 11, 1963, he was informed that defendant Oatis was in custody on a rape charge which had been preferred earlier that day. In the presence of the defendant, a written and signed statement was taken from the complaining witness. The officer further testified, “We asked him if this was the truth and he denied it. He said that he had met [her] on the street and that he had propositioned her and after some conversation she got into the car with him. They drove away and he stopped near the Skyway and he attempted to have relations with her and he found that she was having her period and that he did not have relations with her. He drove her back to 74th and Eberhart where he let her out. . . . [Later] he stated the same thing except he said he did have relations with her and that it was entirely voluntary and that he had not used force on her at any time.”

The defendant testified that he had seen the complaining witness “at lounges and at a couple of parties. I have seen her at the Invicta Lounge at 74th and Cottage Grove.” He had been driving along 74th Street when he saw the complaining witness. He stopped and they talked, and it was agreed that he would drive her to work after he made a few stops. He drove to the home of a friend he was supposed to pick up; he honked the horn, but received no answer. Defendant then testified that he and the complaining witness started to “neck,” and she made no objection except to say, “Not here.” They then drove until they found a secluded alley and there began to “neck” again. He told her to get ready, and he got out of the car to urinate and then put on a “rubber.” “She was in the back seat when I got back. She was just sitting with one leg up on the seat and then I had intercourse with her. I was ready to have intercourse with her, and she pushed me up and she called a cuss word out and said, ‘Now look what you’ve done.’ I looked down and there was blood all over the seat. My clothes and her clothes too, so I just got out. There was a heavy rain that morning and I got out and took some rags and wet the rags and we wiped the back seat off.

. . . When we were through we got back into the front. She sat with me. I drove to 74th Street and got out and walked with her. She said that I didn’t have to walk her home. I got back in the car and I said I will see you later. She didn’t say anything about whether she was going to work that day. I used no force against the young lady, she submitted of her own will. I did not chase her with a tire iron. She got in the car of her own will. ... I talked to the police officer who just sat down a few minutes ago. I told him that she had submitted and I told him that I used no force.”

On cross-examination, he testified, “There was a tire iron, wheel and everything in the back seat of my car. I did not threaten [her].... Prior to my relations with her, I got out of the car and made a telephone call. . . . When I was first questioned by the police, I did tell them I did not have intercourse with [her]. Later I told them I did.”

After both sides rested, the trial judge commented on the evidence and found the defendant “guilty as charged in the indictment.”

Initially, we agree with defendant that proof of penetration is a necessary element of the crime of forcible rape (People v. Perez, 412 Ill 425, 427, 107 NE2d 749 (1952)), but we do not agree that “a reasonable doubt of penetration exists in this record.” The direct testimony of the complaining witness, defendant’s admissions to the police officers, and defendant’s own testimony leave no reasonable doubt of penetration.

As to force, defendant argues that taking the testimony of the complaining witness “as true in every detail, it fails to establish that the intercourse with defendant was forcible and against her will within the meaning of the statute defining the offense of rape.” Defendant contends there was no evidence that her faculties or physical powers were in any way impaired, and that there is no evidence that she resisted defendant in any way or made an outcry or attempted to escape, though the opportunity was afforded her, and her voluntary submission while having power to resist amounts to consent and removes from the act an essential element of the crime of rape.

On this point defendant’s authorities include People v. Rossililli, 24 Ill2d 341, 181 NE2d 114 (1962), where the court stated (p 346):

“The sum and substance of her testimony is that Rossililli demanded that she submit to sexual intercourse and told her he would hurt her if she did not consent; that she refused; and that Rossililli then removed her underclothing, held her down and had intercourse with her. What was said in People v. Scott, 407 Ill 301, is appropriate here. In that case we reversed a rape conviction and said, page 305: ‘It is a fundamental rule in such cases that in order to prove the charge of forcible rape there must be evidence to show that the act was committed by force and against the will of the female, and if she has the use of her faculties and physical powers the evidence must show such resistance as will demonstrate that the act was against her will. ... It is also fundamental that voluntary submission by the female, while she has power to resist, no matter how reluctantly yielded, amounts to consent and removes from the act an essential element of the crime of rape.’
“There is no evidence in the present case that Mrs. Gorlick’s faculties or physical powers were in any way impaired, nor is there any evidence that she resisted Rossililli in any way. The evidence does not support an inference that she was so paralyzed by fear or overcome by physical force that she was powerless to resist.”

In People v. Nelson, 360 Ill 562, 196 NE 726 (1935), the court said (p 568):

“We have repeatedly held that where a conviction in a rape case depends upon the testimony of the prosecuting witness and the defendant denies the charge, the evidence of the prosecuting witness should be corroborated by some other evidence, fact or circumstance in the case.”

The State argues that there is no satisfactory and definite standard as to the amount of force which is required, this being a question which must be determined by all the facts and circumstances in each particular case. In People v. Smith, 32 Ill2d 88, 203 NE2d 879 (1955), it is said (p 92):

“There is no definite standard fixing the amount of force required and each case must be considered on its own facts. It is the general rule that if the female has the use of her faculties and physical powers the evidence must show such resistance as will demonstrate that the act was against her will. However, resistance is not necessary under circumstances where resistance would be futile and would endanger the life of the female, nor where she is overcome by superior strength or paralyzed by fear.”

We have carefully scrutinized the testimony in this record. It has been said that an accusation of rape is easy to make, difficult to prove, and still more difficult to defend against. Hence, this court in such a case is charged with the duty of carefully examining the evidence. However, the testimony of the prosecutrix, uncorroborated by other witnesses, may be sufficient to sustain a conviction of rape. People v. Perez, 412 Ill 425, 427, 428,107 NE2d 749.

In a bench trial in a criminal case, the reviewing court, in view of the opportunities for observation available to the trial court, will not disturb a guilty finding unless the proof is so unsatisfactory or implausible as to justify a reasonable doubt as to a defendant’s guilt. People v. Woods, 26 Ill2d 582, 585, 187 NE2d 692 (1963); People v. Boney, 28 Ill2d 505, 510, 192 NE2d 920 (1963).

In applying the foregoing guidelines to the instant case, we are of the opinion that the evidence supports the finding of guilty of the charge of forcible rape beyond a reasonable doubt. The prosecutrix testified that the defendant threatened to hit her while “he had an iron in his hand,” and repeatedly stated “he was going to hurt me” if she didn’t cooperate. Defendant testified that he had a tire iron in the back seat, and it is undisputed that the occurrence took place at a very early hour in the morning, in a deserted area, where an outcry would be futile. The failure of the prosecutrix to make an outcry or to physically resist defendant, who was threatening to hurt her with an “iron” or “tire iron,” is understandable. In People v. Faulisi, 25 Ill2d 457, 461, 185 NE2d 211 (1962), it is said:

“. . . resistance is not necessary under circumstances where resistance would be futile and would endanger the life of the female as where the assailant is armed with a deadly weapon, and that proof of physical force is unnecessary if the prosecuting witness was paralyzed by fear or overcome by superior strength of her attacker.”

We also note that the prosecutrix made complaint of the rape immediately after the occurrence, the police were called at once, and defendant was apprehended and charged with the offense during the same day.

As to defendant’s denial of the rape and his testimony as to the consent of the prosecutrix, the trial court, in finding defendant guilty, remarked: “I watched the demeanor of both the victim and the defendant and I gathered the impression that the victim was telling the truth and that the defendant was not. Furthermore, when she said that he used force and threatened her with a tire iron and pushed her into the car, it doesn’t make any difference if she later pulled off her panties. If he threatened her with force she didn’t have to undergo force; she could submit. All the facts and circumstances in the case, even if the testimony of the victim and the defendant were equal — which they are not in my mind — but even if they were, all the facts and circumstances in the case corroborates the girl. Now, the defendant was brought down to the police station and she gave a statement of what happened in the presence of the defendant. The officer asked the defendant if that was true and he denied it. He denied he had intercourse with her. Then later he changed his story and said, yes, he had intercourse with her but she submitted voluntarily. Now, I don’t think she submitted voluntarily. ... I don’t think there is anything in this case in defendant’s favor. He added perjury to his crime of forcible rape. He has taken the stand and told a story that is not believable.” These remarks of the trial judgfe are substantiated by this record, and we find that the proof here is not “so unsatisfactory or implausible as to justify a reasonable doubt” as to defendant’s guilt.

For the reasons given, 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 ABRAHAMSON

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. David Frank Dery, Defendant-Appellant.
    Gen. No. 65-108.
    Second District.
    August 2, 1966.
    Rehearing denied September 19,1966.

      Robert P. O’Meara, of Waukegan, for appellant.

      Bruno W. Stanczak, State’s Attorney, of Waukegan, and Jack Hoogasian, Assistant State’s Attorney, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of Lake County. The defendant, David Frank Dery, in a single count was indicted for the offense of rape. Upon a plea of not guilty he was tried before a jury which found him guilty and was sentenced to from 25 to 45 years in the penitentiary.

The alleged offense occurred shortly after midnight on the morning of September 19, 1964.. The evidence discloses that Valerie Orhn, the victim, was a single woman approximately 20 years of age; that she lived in the city of Waukegan in an apartment with a friend, Diane Kalla. Valerie had known the defendant for over a year and had on occasion dated him. Defendant lived in the same building as Valerie in the apartment upstairs from hers. On September 18, 1964, defendant called on Valerie at her apartment at about 9:30 p. m. The evidence discloses that from that time until about midnight the two drank together, both at Valerie’s apartment and at other places in the Waukegan area. Shortly before midnight Dery started to drive Valerie home and when a few blocks from her apartment his car broke down. In walking to Valerie’s apartment, they entered Powell Park at a point approximately 1 y% to 2 blocks from her home. Valerie testified that while in the park, defendant struck her from behind, rendering her unconscious. She further testified that when she regained consciousness she was lying supine on the ground, the defendant on top of her. When she attempted to resist his attack, he struck her on the jaw and on the side of the chest. Diane Kalla, Valerie’s roommate, testified that somewhere between 12:30 and 1:30 she heard Valerie outside the apartment crying for help. She found Valerie attempting to crawl to the apartment. Valerie’s jacket and slacks were torn, her clothes, shoes and purse were covered with mud. Her jaw and mouth were crooked and a tooth was missing. She was bleeding and hysterical. Diane asked Valerie what had happened and Valerie replied, “Dave raped me.” Her physical condition at the time was substantiated by other evidence and witnesses. When defendant was arrested later in the morning of September 19, 1964, his right hand was swollen and bruised. The defendant did not testify in his own behalf, but through cross-examination of the State’s witnesses and direct examination of defense witnesses, sought to show that Valerie had, when in the hospital, stated to one of the defense witnesses that Dery had not raped her. The defense also tried to show that an intimate relationship existed between Valerie and the defendant and that Valerie frequently became intoxicated. While the defendant was awaiting trial, he escaped from the Lake County jail on January 1, 1965. He was apprehended in Florida on January 13, 1965, re-escaped and was again apprehended on January 15, 1965. Thereafter he was returned to Waukegan and the trial commenced on January 26,1965.

One of the issues presented for review is whether the trial court erred in denying defendant’s motion for a change of place of trial, filed pursuant to Code of Criminal Procedure, Ill Rev Stats, c 38, par 114-6 (1965). The affidavit in support of the motion sets forth that a jailbreak involving three men occurred, the defendant being one of those involved. That as a result of this occurrence defendant received wide publicity from the press, radio and television. The affidavit concludes that this publicity characterized the defendant as a rapist, jailbreaker, brutal and reckless, and a criminal type; and there exists such prejudice on the part of the inhabitants of the County that the defendant cannot receive a fair trial. The Sheriff of Lake County filed a counteraffidavit to the effect that various persons that he contacted were unaware of the defendant’s participation in the escape. The defendant’s affidavit did not set out what was published nor were any facts included which tended to show a prejudice on the part of the inhabitants of the County. The foregoing encompasses all of the information furnished to the trial judge to decide the motion. A portion of the voir dire examination of several veniremen appears in the abstract and it indicates that all or some of the members of the panel were aware of the jailbreak from the publicity. However, from the answers given it does not appear that prejudice existed from the mere knowledge gained from the news media. There is no direct evidence of prejudice nor were any copies of publications denouncing the defendant offered. The inquiry of the court on such a motion is directed to a question of fact whether there are reasonable grounds for fear that prejudice actually exists and that the defendant will not receive a fair and impartial trial. The mere fact that the news media gave publicity to the escape does not in itself establish that there existed a prejudice against the defendant by the inhabitants of the County. There is nothing contained in the record which could substantiate such an assumption. The trial court did not err in denying the motion. The People v. Allen, 413 Ill 69, 74, 75, 107 NE2d 826.

Defendant next complains that the court abused its discretion in not granting defendant’s motion for a continuance. Defendant argues (1) because of his absence from the State from January 1 to January 18, 1965, the period of his freedom as an escapee, his counsel, who was engaged in other trials on his return, did not have adequate time to prepare his defense, and (2) defendant was entitled to a continuance because the Peopie served him with a list of additional witnesses on the eve of the trial. In determining whether the granting or refusal of a continuance is a reasonable exercise of discretion, the situation must be viewed as it was presented to the trial judge at the time. The People v. Poland, 22 Ill2d 175, 178, 174 NE2d 804. Here, any inability of the defendant’s counsel to properly prepare for trial appears to have resulted from the acts of the defendant himself, and he may not therefore urge such as grounds for reversal. The People v. Solomon, 24 Ill 2d 586, 590, 182 NE2d 736. There is no assertion by defendant that the testimony of any of the witnesses whose names were furnished on the eve of trial either surprised or prejudiced him, or that the continuance to permit him additional time to interview these witnesses would have aided him. The People v. Weisberg, 396 Ill 412, 420, 71 NE2d 671. The matter of a continuance is within the sound discretion of the trial judge and we find no abuse of this discretion. People v. Sauber, 68 Ill App2d 133, 141, 214 NE2d 918.

In the words of the indictment, the defendant was charged with the offense of rape on the “nineteenth day of September, in the Year of Our Lord One Thousand Nine Hundred and Sixty-four, in said County of Lake.” It is argued that the People did not specify the time and place of the offense as definitely as could have been done, and that the failure of the trial court to sustain a Motion to Quash the indictment was reversible error. The defendant, on the same date, moved for a Bill of Particulars, to which the People replied specifying the time and place of the occurrence. In The People v. Blanchett, 33 Ill2d 527, 534, 212 NE2d 97, and People v. Petropoulos, 59 Ill App2d 298, 316, 208 NE2d 323, it was held that such omission does not offend due process and that the indictment sufficiently complies with the Code of Criminal Procedure of 1963, c 38, par 111-3(4). The indictment here alleged the offense and the defendant did receive a Bill of Particulars, consequently the trial court did not err in denying the Motion to Quash.

Statements made by Valerie to her friend and roommate, Diane, a few minutes after the assault in the park, which is located immediately behind the girls’ home, were objected to. Diane heard a rustling and saw someone crawling up the hill alongside the home. She observed Valerie’s physical condition, disheveled and torn clothing stained with mud and blood, and inquired, “What happened?” Valerie answered, “Dave raped me.” Defendant concedes that such complaint is admissible but contends that any details of the transaction and the name of the person charged are not, citing The People v. Fryman, 4 Ill2d 224, 228, 122 NE2d 573. The People v. Damen, 28 Ill2d 464, 471, 193 NE2d 25, clarifies the confusion that existed in this area, stating that the three factors necessary to bring a statement within this exception to the hearsay rule are: “(1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence.” In the Damen case, where a police officer inquired “What happened?” and the complainant replied, stating what had occurred and the statement was made shortly after the occurrence, the court held the statement to be a spontaneous declaration and admissible in full. While the contents of a spontaneous declaration may be shown in toto, proof of complainant’s statement which fails to qualify as a spontaneous declaration because of lapse of time is, we believe, best restricted to the fact that a complaint was made with only such additions as may be necessary to identify the event as the one before the court. However, we conclude that the circumstances testified to by Valerie constituted a spontaneous declaration and were admissible in full.

In the cross-examination of one of the defense witnesses, the State asked if he had been convicted of petty larceny. Before the question was answered, an objection was made, and sustained, and the jury instructed to disregard the question and the subject matter thereof. In view of all the evidence, we do not feel that this occurrence could have prejudiced the defendant, and it does not constitute reversible error.

The State introduced photographs of the defendant showing him facing a wall with his hands above his head, showing his lower forearms and hands. The photographs were taken in the police station on the morning of the defendant’s arrest. In addition to portraying the abrasions and swelling of his right hand, the photographs show some rather inartistic tattoos. Defendant cites no authority to sustain his position that by showing more than just his hands, these photographs were rendered inadmissible. We do not believe that these exhibits were prejudicial.

We do not believe that the trial court abused its discretion in not permitting defendant to bring in evidence of his intimacy with the complaining witness on prior occasions and of her drinking or her habits when drunk. The evidence sought to be brought into the record by defendant was not pertinent to the issues before the court.

Finally, it is asserted by the defendant that the evidence is not sufficient to sustain the verdict. We have briefly outlined the evidence adduced and it is apparent that there was ample evidence to justify the finding by the jury of the defendant’s guilt. On such a record we will not substitute our judgment for that of the trial court and jury who heard the facts and saw the witnesses. The record contains no evidence contradicting Valerie’s declaration of the attack and her bruised physical condition stands as mute evidence to support her testimony. The People v. Hiller, 7 Ill2d 465, 470, 131 NE2d 25. In determining the record is free from prejudicial error, the judgment of the trial court is affirmed.

Judgment affirmed.

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


author: MORAN, J.

text:
    Louise McElligott, Individually and as Administrator of the Estate of Francis W. McElligott, Deceased, Plaintiff-Appellant, v. Illinois Central Railroad Company, Defendant-Appellee.
    Gen. No. 65-2.
    Fifth District.
    August 3, 1966.
    Rehearing denied August 26,1966.

      Kassly, Weihl, Carr & Bone, of East St. Louis, for appellant.
    Burroughs, Simpson & Burroughs, of Edwardsville (Robert Mitten, Robert S. Kirby, and Paul M. King, of counsel), for appellee.
   MORAN, J.

This is an appeal from the Circuit Court of Madison County, Illinois, in a wrongful death-personal injury action based upon a train-automobile collision. The first trial of the case resulted in a hung jury. In the second trial the plaintiff obtained a verdict as administratrix for the death of her husband and for her own personal injuries. The trial court ordered a new trial and the plaintiff’s Petition for Leave to Appeal was granted.

On March 4, 1960, the plaintiff was driving an automobile in which her husband was a passenger. As she approached the Illinois Central Railroad crossing at 19th Street in Belleville, she observed a train headlight shining over a garage located to her right. She estimated that her speed at the time was 15 m. p. h. and that she was 30 feet from the crossing. There had been snow and ice on the ground for a least a week prior to the accident. The crossing and its approaches, at the time of the accident, had not been cindered or salted, and they contained snow and ice and were very slippery.

As the train traveled, it was going upgrade and the automobile, as it traveled, was going down a slight grade. Upon seeing the headlight, the plaintiff applied her brakes and then heard the train whistle which she had not heard before. When she applied her brakes, the automobile commenced sliding on the icy downgrade and, although she pumped her brakes and turned her front wheels to the left, it continued to slide toward the train. The automobile and the train came into collision at about the center of the street and about 10 feet from the front of the engine. The plaintiff estimated the speed of the train to be 45-50 m. p. h. As a result of the collision, the plaintiff suffered injuries and her husband died.

The particular crossing was not guarded by automatic flasher lights, gates or flagmen. The railroad’s right-of-way was 100 feet in width, 50 feet on either side of the center of the track. The railroad had asphalted an area four feet wide, on both sides of the track. The city of Belleville had paved 19th Street to within four feet on each side of the track. It had also constructed curbs and sidewalks to within two feet on each side of the track.

The plaintiff, in her own right and as administrator of her husband’s estate, filed suit against the defendant railroad company, alleging several acts of negligence in that the defendant:

(a) Failed to cause a bell and whistle or horn to be rung or sounded at the distance of at least eighty rods from the intersection, contrary to Ill Rev Stats c 114, § 59.
(b) Operated the said train at an excessive and dangerous speed having due regard to the conditions then and there existing.
(c) Negligently and carelessly failed to exercise reasonable care in giving adequate and timely warning of the approach of its train to said crossing under the conditions then and there existing.
(d) Negligently and carelessly failed to provide automatic flasher lights, warning lights, gates, or flagmen at said crossing.
(e) Negligently and carelessly failed to maintain its said crossing and its approaches thereto within its right-of-way so as to be safe as to persons crossing same contrary to Ill Rev Stats c 114, § 62, and to Illinois Commerce Commission Rule No. 206.

The defendant denied these charges and filed affirmative defenses to the effect that the plaintiff had not exercised due care, which defenses were stricken by the court as not alleging new matter. The first trial of the issues resulted in a hung jury.

The issues were subsequently retried in January, 1964, and the jury awarded the plaintiff $25,000 damages and awarded the estate of her husband $18,000 damages. During the course of the trial the plaintiff introduced into evidence, over the objection of the defendant, Illinois Commerce Commission Rule No. 206 which provides that:

At every grade crossing where the duty of constructing or maintaining either the crossing proper or its approaches (or any part thereof) is by statute, by order of the Commission, or in any lawful manner, placed upon a railroad company, it shall be the duty of the railroad company to construct and maintain the crossing or approaches so that at all times they will be safe as to persons or property.

The objection was made because there was no showing that the Rule was relevant in that there was no indication “as to what right-of-way was concerned.”

Objections were also made to several instructions. Plaintiff’s Instruction No. 10 provided that:

At the time of the occurrence in question there was in force in the State of Illinois a statute which provided that:
Hereafter, at all of the railroad crossings of highways and streets in this state, the several railroad corporations in this state shall construct and maintain said crossings, and the approaches thereto, within their respective right-of-way so that at all times they shall be safe as to persons and property.
If you decide that the defendant violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances and evidence in determining whether or not the defendant was negligent before or at the time of the occurrence.

Plaintiff’s Instruction No. 11 provided that:

The plaintiff claims that she was injured and sustained damage and that decedent was killed while she and decedent were exercising ordinary care, and that the defendant was negligent in one or more of the following respects:
(a) In failing to sound the horn or bell on the engine when one-fourth of a mile from the crossing and in failing to keep sounding the horn or bell until the crossing was reached, contrary to a certain Statute of the State of Illinois.
(b) In operating its train at an excessive rate of speed in view of the conditions then prevailing.
(c) In failing to give adequate and timely warning of the approach of its train to the crossing in view of the conditions then prevailing.
(d) In failing to provide automatic flasher light or warning lights or gates or flagmen at the crossing when the defendant knew, or should have known, that a large number of motorists frequently travel the crossing, that the view of the tracks to the east was obstructed, and that the street approach to the crossing from the south was on a downgrade.
(e) In failing to maintain its crossing and its approaches thereto within its right-of-way so as to be safe as to persons crossing same.
The plaintiff further claims that one or more of the foregoing was the proximate cause of her injuries and of the death of decedent.
The defendant denies that it was guilty of negligence in doing any of the things claimed by plaintiff, and denies that the plaintiff and the decedent were in the exercise of ordinary care.
Defendant further denies that plaintiff was injured or sustained damages to the extent claimed. (Emphasis supplied.)

The defendant objected to plaintiff’s Instruction No. 10 because the instruction did not limit the term “approaches” to the distance of four feet and because it used the words “within their respective right-of-way.” The defendant objected to plaintiff’s Instruction No. 11 because it “reiterates in paragraph (e) a duty of the defendant, not required by law, and does not fully state all the issues by the parties,” especially the affirmative defenses concerning contributory negligence which were stricken by the court. At no time during the instruction conference did the defendant’s counsel or the court indicate any dissatisfaction with the use of the word “safe” without a qualifying adjective or adverb.

In defendant’s post-trial motion for a directed verdict, or, in the alternative, for a new trial, it was claimed that the court erred in admitting Rule No. 206 because the “jury was improperly led to believe that the defendant was required to remove ice and snow from its right-of-way” and because the “defendant was not afforded the opportunity to show that said order has not been interpreted to impose such a duty on this defendant or on any carrier.” The defendant made no post-trial claim that the court erred in giving any of the plaintiff’s instructions. However, the trial court ordered a new trial, stating in a lengthy opinion that it was error to use the word “safe” in Rule No. 206 and in plaintiff’s Instructions Nos. 10 and 11 because the use of the word made the defendant an insurer and implied that the defendant had an absolute duty to maintain its crossing and the approaches thereto safely and that it was error to use the word “approaches” in the instructions and in the rule because the jury was in effect told that the defendant had the duty to maintain the area within the entire right-of-way. All other allegations of error made by the defendant were resolved by the court in the plaintiff’s favor and its motion for a directed verdict was denied. The defendant has not appealed from this decision and any errors contained therein are waived.

Ordinarily, an appellate court will not review an order granting a new trial unless there is a showing that the court clearly and palpably abused its discretion. However, where only the correctness of a trial court’s ruling on questions of law is involved, a court of review should allow a petition for leave to appeal from an order granting a new trial when a question is reasonably presented as to whether the court erred in so ruling. Randall v. Randall, 281 Ill App 169; Loucks v. Pierce, 341 Ill App 253, 93 NE2d 372; Hall v. Chicago & N. W. Ry. Co., 349 Ill App 175, 110 NE2d 654. We granted plaintiff’s petition for leave to appeal because we believe that this case presents debatable questions of law.

The plaintiff-appellant first argues that any alleged errors upon which the trial court based its order for a new trial were waived by the defendant in that the defendant’s post-trial motion did not allege the errors, in that the amendment to the post-trial motion was a nullity, and in that proper objections were not specifically made to the instructions at the instruction conference. However, as recently enunciated by our Supreme Court in Freeman v. Chicago Transit Authority, 33 Ill2d 103, 210 NE2d 191, the power of a trial judge to grant a new trial on its own motion, for reasons not raised by either party, has been recognized in Illinois. Justice Schaefer, speaking for the court, emphasized at 194:

Orders granting new trials were not appealable at all until the Civil Practice Act became effective in 1934, and apparently the authority of a trial court to grant a new trial on its own motion has not been considered by this court. But in those jurisdictions that have considered the question the power is firmly established. Fort Wayne & Belle Isle Ry. Co. v. Wayne Circuit Judge, (1896) 110 Mich 173, 68 NW 115; Bank of Willmar v. Lawler (1899) 78 Minn 135, 80 NW 868; Clark v. Great Northern Ry. Co. (1905) 37 Wash 537, 79 Pac 1108; 2 Ann Cas 760; see cases collected, 48 ALR 362, 23 ALR2d 852; cf. FR Civ P Rule 59. These decisions are based upon a recognition that the role of a trial judge is not that of a presiding officer or an umpire, and that he is responsible for the justice of the judgment that he enters. The defendant’s argument would take away that responsibility and tend to reduce his role to that of an automaton.

The plaintiff next argues, contrary to the decision of the trial court, that the giving of the two instructions and the admission of the Buie did not constitute reversible error and that the order of the trial court should be reversed.

Concerning Instruction No. 10, the court found and the defendant argues that the statute which is cited therein had been repealed by Ill Rev Stats c 111%, § 62 (Public Utilities Act), that a judicial modification of the statute cited had occurred and that the modification was not contained in the instruction, and that the effect of the instruction as given was to place the duty of an insurer upon the defendant.

In support of the first finding, the defendant quotes a portion of the Public Utilities Act, Ill Rev Stats c 111%, § 62: “The commission shall have the power to determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, use and protection of each such grade crossing.” Relying upon Illinois Cent. R. Co. v. Franklin County, 387 Ill 301, 56 NE2d 775, the defendant argues that this part of the Act repealed Ill Rev Stats c 114, § 62 (§ 8 of the Railroad Act), which provides in part that:

This is the portion of the Railroad Act which formed the basis of plaintiff’s Instruction No. 10. The defendant argues that the Public Utilities Act, as construed in the Franklin County case, repealed section 8 of the Railroad Act. The court in that case analyzed the same two sections and determined at 311 that:

Hereafter, at all of the railroad crossings of highways and streets in this state, the several railroad corporations in this state shall construct and maintain said crossings, and the approaches thereto, within their respective rights-of-ways, so that at all times they shall be safe as to persons and property.
The acts are so inconsistent that both cannot operate. In this situation the repugnant provisions of the Railroad Act must yield to the Public Utilities Act . . . , it being the later act. As so construed, both acts may operate in their respective fields. The provisions of the Railroad Act are still effective in so far as such provisions are not in conflict with, or repugnant to, the provisions of the later Public Utilities Act covering the same subject matter. (Emphasis supplied.)

The defendant failed to quote this latter sentence recognizing the compatability of the two sections where no conflicts exist. In addition, the defendant failed to point out that the specific provisions under consideration in that case were definitely in conflict. The Illinois Commerce Commission had ordered a bridge reconstructed and, in accordance with powers granted to it by the Public Utilities Act, it apportioned the cost between Franklin County and the Illinois Central Railroad. Franklin County objected to the payment of any part of the cost and argued that the railroad must bear the entire cost, citing section 8 of the Railroad Act.

In this case, no such conflict exists between the Public Utilities Act and the Railroad Act. There is no attempt in the Public Utilities Act to limit the duty upon a railroad to maintain crossings or to limit the pertinent provision of the Railroad Act. In fact, the Illinois Commerce Commission issued a rule affirming a railroad’s duty where such duty is established “by statute, order of the Commission, or in any lawful manner.” Rule No. 206. Therefore, at the time plaintiff’s Instruction No. 10 was given, that portion of section 8 of the Railroad Act was still in effect.

As additional support of the proposition that the Public Utilities Act did not repeal section 8 of the Railroad Act, one need only note that subsequent cases have either made reference to or applied section 8. City of Chicago v. Sanitary Dist. of Chicago, 404 Ill 315, 89 NE2d 35; Langston v. Chicago & N. W. Ry. Co., 330 Ill App 260, 70 NE2d 852; Carr v. Chicago & N. W. Ry. Co., 333 Ill App 567, 77 NE2d 857.

The trial court found and the defendant next argues that the word “safe” as used in the instruction had been judicially construed to mean “reasonably safe” and that this modification was not reflected in the instruction. It is true that the word “safe” has been judicially construed to mean “reasonably safe.” Elgin, J. & E. Ry. Co. v. Raymond, 148 Ill 241, 35 NE 729; Illinois Cent. R. Co. v. Stewart, 230 Ill 204, 82 NE 590; Waterbury v. Chicago, M. & St. P. R. Co., 207 Ill App 375.

Generally, as enunciated in Deming v. City of Chicago, 321 Ill 341, 151 NE 886, “ (w) here an instruction is given in the language of a statute which is pertinent to the issues it must be regarded as sufficient. Laying down the law in the words of the law itself ought not to be pronounced error.” 321 Ill at 345. Greene v. L. Fish Furniture Co., 272 Ill 148, 111 NE 725; Reese v. Buhle, 16 Ill App2d 13, 147 NE2d 431. However, it has been recognized that “where the courts of review have placed a modified construction upon a statute an instruction given in the language of the statute should be framed according to that construction so as properly to inform the jury of its legal effect.” De Legge v. Karlsen, 17 Ill App2d 69, 149 NE2d 491, at 78. This holding finds support in Burns v. Jackson, 224 Ill App 519; Moran v. Gatz, 327 Ill App 480, 64 NE2d 564; Walker v. Shea-Matson Trucking Co., 344 Ill App 466, 101 NE2d 449.

None of the cases cited, however, deal with the interpretation of the word “safe.” There are two cases, however, arriving at different conclusions on this very question. Corlett v. Illinois Cent. R. Co., 241 Ill App 124; Waterbury v. Chicago, M. & St. P. R. Co., supra. In the Corlett case, the Second District Appellate Court found that the use of the word “safe” in an instruction was not error. The same statute was quoted in the instruction — section 8 of the Railroad Act. The court held that “(a)n instruction in the language of the statute is good, if it is applicable to the facts in the case.”

In the Waterbury case, however, the First District Appellate Court reversed a judgment for the plaintiff, holding at 380, 381 that:

While numerous authorities uphold the practice of giving instructions containing the very language of a statute, yet we think that where a modified construction has already been placed thereon by our Supreme Court, as in the case at bar, the instruction should be framed accordingly, otherwise it would be apt to mislead the jury. In such a situation, the better practice is to instruct the jury as to the legal effect of the statute. (Emphasis supplied.)

It should be noted that the court in that case did not actually state that the giving of the instruction would constitute reversible error. In fact, the court found numerous errors in that (1) Instructions 33 and 34 should have been given; (2) Instructions 35-40 should have been given; and (3) the trial court erroneously determined that section 8 of the Railroad Act imposed the duty of an insurer upon the railroad.

The error in the present case, if any, would have occurred if the jury had been misled by the use of the word “safe.” The trial court determined and the defendant argues that “the effect of the use of the word ‘safe’ in said rule and instructions was to make defendant an insurer, and this placed a greater duty on the defendant than the law requires.”

In Funk v. Babbitt, 156 Ill 408, 41 NE 166, at 415, 416, the Supreme Court held that:

The office of an instruction is to give knowledge and information to the jury, for the immediate application to the subject matter before them. The test, then, is, not what the ingenuity of counsel can, at leisure, work out the instructions to mean, but how and in what sense, under the evidence before them and the circumstances of the trial, would ordinary men and jurors understand the instructions.

This decision finds support in Reivitz v. Chicago Rapid Transit Co., 327 Ill 207, 158 NE 380. In other words, the test whether the effect of a particular instruction was to make the defendant an insurer must be what the jurors, being ordinary men and women, would understand that instruction to mean under the evidence and circumstances of the trial. Applying that test to the present case, how could men of ordinary understanding believe that the use of the word “safe” in the rule and in the instructions would create an absolute duty on the defendant when neither counsel nor the trial judge, men skilled in the interpretation of language, indicated that the instructions or rule would be so understood by the jury? Nor did counsel for the defendant quarrel with the word “safe” in his post-trial motion.

Then too, we must consider the total effect of all the instructions. As indicated in Walker v. Shea-Matson Trucking Co., 344 Ill App 466, 101 NE2d 449, “our courts recognize the ‘harmless error’ doctrine which disregards error in some isolated instruction when others in the series may explain it and render it harmless.” Another clear expression of this doctrine is found in Sphatt v. Tulley, 38 Ill App2d 229, 186 NE2d 670, at 236, where the court emphasized that:

As stated in Kavanaugh v. Washburn, 320 Ill App 250, and reiterated in the recent case of Bunton v. Illinois Cent. R Co., 15 Ill App2d 311: “Modern tendency favors a liberal application of the harmless error doctrine to instructions when it appears the rights of the complaining party have in no way been prejudiced.” We also observed in Jepsen v. Sprout & Davis, 330 Ill App 448, that the trend of judicial opinion reveals a reluctance to reverse cases on the ground of technical errors in instructions; hence, courts have reiterated that the instructions will be considered as a whole, and where the jury has not been misled, and the complaining party’s rights have not been prejudiced by minor irregularities, such errors will not be deemed grounds for reversal.

Therefore, a review of all the instructions would be proper in determining whether the effect of Instructions 10 and 11 was to make the defendant an insurer. The jury was first told in plaintiff’s Instruction 1 that “you must consider these instructions as a whole, not picking out one instruction and disregarding others.” In plaintiff’s Instruction 4 the jury was told that “(i)t was the duty of the defendant, before and at the time of the occurrence, to use ordinary care for the safety of the plaintiff and of the decedent.” Plaintiff’s Instructions 5 and 6 referred specifically to the nature of ordinary care. Finally, the last sentence of the plaintiff’s Instruction No. 10, the instruction found to have been erroneous, provides that the jury may consider the statute cited “together with all the other facts and circumstances and evidence in determining whether the defendant was negligent before or at the time of the occurrence.” It should also be noted at this time that the plaintiff’s Instruction No. 11 contained only the allegations of both the plaintiff and the defendant. Any reference to the word “safe” would have related only to what the plaintiff had originally alleged in her complaint.

According to the test announced in the Funk case, the use of the word “safe,” without a reference to the judicial modifications was not error. Assuming, however, that there were error, it would have been cured by the other instructions. The defendant argues that the instructions in effect directed a verdict and that any errors contained therein could not be cured by other instructions, citing Tuttle v. Checker Taxi Co., 274 Ill App 525. The court in that case found that an instruction which had incorporated a part of an ordinance not in force at the time of the accident, which in effect told the jury that if the plaintiff did not yield the right-of-way to the defendant’s cab she could not recover, which did not tell the jury under what circumstances the automobile had the right-of-way, and which ignored the rule that the violation of an ordinance is only prima facie evidence of negligence had in fact “directed a verdict, and errors it contains are not cured by other instructions.” This same finding cannot be made, however, in the present case; for, the use of the word “safe” did not create the same or even a similar erroneous impression upon the jury.

The court also found and the defendant argues that the court in effect directed a verdict against the defendant by submitting Instructions 10 and 11 and by admitting Rule No. 206 because the jury was told that the defendant had the duty to maintain the area within the entire right-of-way, whereas the term “approaches” as used in the instructions and in the Rule had been judicially delimited. In addition, the court stated that, if the only negligence charged was the failure to maintain the area within the entire right-of-way, “this court would have granted a directed verdict.” We do not agree.

It has been established law in Illinois for many years that a railroad has a statutory duty to maintain its crossings and the approaches thereto in a reasonably safe condition. Ill Rev Stats c 114, § 62 (1874). However, the extent to which the duty attaches depends upon the circumstances surrounding a particular case. Under some circumstances, the duty may extend over the entire right-of-way; under others, the duty may be less. The determination is essentially factual and usually should be submitted to a jury.

The court was correct in stating that the term “approaches” as used in section 8 of the Railroad Act has been judicially modified. In City of Bloomington v. Illinois Cent. R. Co., 154 Ill 539, 39 NE 478, our Supreme Court held at 547 that:

What would be regarded as the approaches to the crossing would largely depend upon the demands of the traveling public, upon the action of the local authorities, and upon what would be reasonable under the circumstances and local situation in each case. It is manifest that they do not and should not, in all cases, include all that part of the right of way that is covered by the street or highway and is not immediately at the crossing.

But, as pointed out in Chicago North Shore & M. R. Co. v. Commerce Commission ex rel. Dept. of Public Works & Buildings, 354 Ill 58, 188 NE 177, at 75, 76:

The fact that the State has undertaken the construction of the roads included in its State-wide system of hard-surfaced roads does not relieve the railroad companies in the State of the performance of the duty of keeping the highway crossings of their roads, and the approaches thereto, within their respective rights-of-way, safe as to persons and property.

These judicial modifications were not reflected in Instructions 10 and 11. However, the effect of this omission was not the directing of the verdict for the plaintiff. For, the meaning of the term “approaches” was adequately clarified, at the suggestion of the trial court, in defendant’s Instruction 15, which provided that:

(T) he crossing and the approaches thereto which the defendant is required to construct and maintain may but does not necessarily coincide with the limits of the defendant’s acquired easement of right of way.
In determining the width and extent of the crossing and the approaches thereto you may take into consideration the demands of the traveling public, the action of the city of Belleville and upon what would be reasonable under the circumstances and local situation in this case and in considering such factors you may consider:
The original construction of the street.
The control and maintenance of the street.
The distance from the rails at right angles out into the street over which the defendant has asserted control by way of maintenance, repairs or surfacing.

In this case, the jury could have found, from a consideration of all the evidence, that the defendant had a duty to maintain the entire area within its right-of-way. There was evidence that the road was graded down to the crossing, that the road was very slippery, that ice and snow had been accumulated for at least a week prior to the accident, that the plaintiff’s view was obstructed by houses, a garage, and a hill, that the accident occurred at night, that the defendant did nothing at all to make the crossing reasonably safe, that the city had not taken any precautions, and that the plaintiff was driving very slowly. Similarly, the jury could have found that the defendant owed a duty to maintain only a part of the area within the right-of-way. The question is essentially factual and was properly submitted to the jury.

It should also be noted that a railroad could fulfill its duty to maintain its crossings and the approaches thereto in a reasonably safe condition in a number of ways. A jury could find that the placing of appropriately worded signs, the cindering or salting of the area, or the removal of ice or snow would be reasonable care under particular circumstances.

In other words, it was for the jury to determine both the extent of the area which the defendant had the duty to maintain and the type of conduct which would constitute reasonable care under the circumstances. Contrary to the opinion of the trial court, if the only negligence charged was the failure to maintain the area within the entire right-of-way, a directed verdict should not have been granted; but rather the case should have been submitted to the jury, since there was sufficient evidence to support such a finding.

The defendant also argues that it was error to give Instructions 10 and 11 because they were repetitious, citing Ryan v. Monson, 33 Ill App2d 406, 179 NE2d 449, and Williams v. Walsh, 341 Ill App 543, 95 NE2d 743. A review of some cases would be helpful.

In Thompson v. Hughes, 286 Ill 128, 121 NE 387, the court held that “three instructions to the same effect should not have been given, but they were correct as a matter of law.” The judgment in that case was affirmed, implying that any error was harmless. In Sankey v. Interstate Dispatch, Inc., 339 Ill App 420, 90 NE2d 265, the court held that six instructions on contributory negligence did not give undue emphasis to the defense of contributory negligence. In Sphatt v. Tulley, supra, the repetition of the term “defendants negligently and carelessly” six times was held not to be error, much less reversible. In Jepsen v. Sprout & Davis, supra, the court found that the repetition of almost identical instructions was held to be error, but that the error was not reversible under the “harmless error” doctrine. In Ryan v. Monson, supra, many errors, more substantial than the giving of two instructions based on a statute and an ordinance using practically the same language, were found.

In the present case, the defendant argues that the giving of Instructions 10 and 11 after the allowance into evidence of Rule No. 206 in effect erroneously reiterated to the jury three times a single principle of law. Yet the cases upon which it relies deal only with the repetition of instructions to the jury. Hence, the allowance into evidence of Rule No. 206 did not constitute error under a theory of repetition. Also, the reference to “safe” in Instruction 11, as was mentioned earlier, was merely a statement of the plaintiff’s allegations. This repetition is not sufficient to constitute error; and, even if it is, the “harmless error” doctrine would apply.

Finally, the defendant argues that a duty must be placed upon a railroad by statute, by order of the Commission, or in any lawful manner before the requirements concerning the maintenance of crossings which are contained in Rule No. 206 become applicable. Since, he argues, section 8 of the Railroad Act was no longer in effect at the time of the occurrence, the admission into evidence of Rule No. 206 was error in that the rule was not applicable to the case; its provisions had not been made effective since there was no duty created by statute, order, or in any lawful manner. This argument cannot prevail because it has been shown that the applicable part of section 8 of the Railroad Act had not been repealed. There was a statute in force at the time of the occurrence which imposed the duty to maintain crossings. Hence, Rule No. 206 was applicable and, therefore, admissible.

For the foregoing reasons, the order of the Circuit Court setting aside the verdict and ordering a new trial is reversed and the cause is remanded to the Circuit Court of Madison County with directions to enter judgment on the verdict of the jury.

Reversed and remanded with directions.

GOLDENHERSH and EBERSPACHER, JJ., concur.


author: GOLDENHERSH, P. J.

text:
    Clayton R. Curtis, Plaintiff-Appellant, v. Albion-Brown’s Post 590 American Legion of Illinois, Melvin Westerfield, et al., and “Unknown Owners,” Defendants-Appellees.
    Gen. No. 66-17.
    Fifth District.
    July 27, 1966.

      Robert H. Rice, of East St. Louis, for appellant.
    Jones, Ottesen & Fleming, of Belleville (Ralph J. Derango, Jr., of counsel), for appellees.
   GOLDENHERSH, P. J.

Plaintiff appeals from the judgment of the Circuit Court of Edwards County. Because the judgment was entered upon allowance of motions to dismiss, and to quash summons, a review of the pleadings is essential.

Plaintiff filed a one-count complaint naming as defendants, “Albion Brown’s Post 590 American Legion of Illinois,” seven individuals, and “Unknown Owners.” Plaintiff alleges that the defendants were the owners of a liquor store located ,in Albion, in Edwards County, known as “Albion Brown’s Post 590,” that in said store, the defendants, by and through their agents and servants sold alcoholic liquors at retail, that the defendants sold or gave alcoholic liquor to one Merrill Weber, that the liquor, in whole or in part caused Weber’s intoxication, that while so intoxicated he operated a motor vehicle, and by reason of the intoxication caused the motor vehicle to collide with plaintiff’s automobile, causing plaintiff to suffer injury. Plaintiff alleges that by virtue of the provisions of chapter 43, section 135, Ill Rev Stats 1963, plaintiff is entitled to recover damages from defendants.

The complaint also contains an allegation that defendants were conducting and transacting business under the assumed name of “Albion Brown’s Post 590 American Legion of Illinois,” without having complied with the provisions of chapter 96, section 4, Ill Rev Stats 1963, and that the “Unknown Owners” are all other persons transacting business under such assumed name and are made defendants as authorized by chapter 96, section 8a, Ill Rev Stats 1963.

Defendants filed a limited appearance, a motion to dismiss, and a motion to quash service of process, stating in the motion to dismiss that the complaint shows on its face that Albion Brown’s Post 590 American Legion of Illinois, an unincorporated association, is sued as an unincorporated association, that the named individual defendants are several, but not all of the members of the unincorporated association, that the unincorporated association is not a legal entity and cannot be made a party defendant in the association name in an action at law for damages, that individual officers and members of an unincorporated association cannot be made parties defendant in an action at law for damages without joinder of all of the members of the association as parties defendant, that an association organized for the purposes for which Albion Brown’s Post 590 American Legion of Illinois is organized, to-wit:

“To uphold and defend the Constitution of the United States of America; to maintain law and order; to foster and perpetuate a one hundred percent Americanism: to preserve the memories and incidents of our associations in the Great Wars: to inculcate a sense of individual obligation to the community, state and nation: to combat the autocracy of both the classes and the masses; to make right the master of might: to promote peace and good will on earth: to safeguard and transmit to posterity the principals of justice, freedom and democracy: to consecrate and sanctify our comradeship by our devotion to mutual helpfulness.”

is not subject to the provisions of chapter 96, sections 4 through 10, Ill Rev Stats 1963, and a suit at law for damages may not be maintained against the association in its association name or against several but not all of its members, that the attempted joinder of the members of the unincorporated association under the designation “Unknown Owners” is improper and ineffective to vest the court with jurisdiction over the individual members of the association. The motions are not verified, and no supporting affidavits were filed.

This cause was appealed to this court on a prior occasion. The appeal was dismissed for the reason that the order appealed from was not a final appealable order. Curtis v. Albion Brown’s Post 590 American Legion of Illinois, et al., 65 Ill App2d 473, 213 NE2d 621. The cause was thereafter again considered by the trial court and a judgment order entered in which the court states (1) that a voluntary unincorporated association is not a legal entity and cannot be made a party defendant in the association name in a suit at law, for damages, (2) that the seven named individual defendants are several, but not all of the members of the unincorporated association, (3) that the provisions of chapter 96, sections 4 through 10, Ill Rev Stats 1963, are not applicable to a voluntary unincorporated association, that a suit at law for damages may not be maintained against the association in its association name or against several but not all of its members, and the attempted joinder of the members of Albion Brown’s Post 590 American Legion of Illinois, under the designation “Unknown Owners” is ineffective to vest jurisdiction in the circuit court over the association or its individual members. The order states that plaintiff elects not to amend his complaint and to stand thereon, and orders that the summonses served on all the defendants be quashed and held to be of no force and effect, that the complaint be dismissed, and that judgment be entered for costs and execution issue thereon. This appeal followed.

A motion to dismiss a complaint admits the well-pleaded facts therein alleged. Acorn Auto Driving School, Inc. v. Board of Education, 27 Ill2d 93, 187 NE 2d 722. In determining the issues presented it is, therefore, taken as true that the defendants operated a retail liquor store, and that alcoholic liquors sold or given away by defendants, and consumed by Weber, contributed to his intoxication, and that plaintiff’s injuries resulted from Weber’s intoxication.

Section 4 of chapter 96 (c 96, § 4, Ill Rev Stats 1963) provides, in substance, that no person or persons shall conduct or transact business under an assumed name unless there shall be filed in the office of the County Clerk of the County in which the business is conducted or transacted, a certificate setting forth the assumed trade name and the names and addresses of the persons owning and conducting the business. Section 8a (c 96, § 8a, Ill Rev Stats 1963) provides that if the certificate is not filed as required by section 4, and some of the owners are unknown, civil actions may be brought against such persons by filing suit against the business under its assumed name, naming the known owners and designating as “Unknown Owners” the other persons transacting business under the assumed name. It provides for judgment and execution against the assets of the business and sets forth the procedure for naming as parties defendant such of the “Unknown Owners” whose identity becomes known.

Plaintiff’s complaint is obviously framed to comply with the provisions of section 8a and the reference to Albion Brown’s Post 590 American Legion of Illinois is as an assumed name used in the conduct of a retail liquor store. The only allegation that the defendant Legion Post is an unincorporated voluntary association is found in defendants’ unverified motion. The defense that a defendant does not have the legal capacity to be sued falls within the provisions of section 48 (1) (b) of the Civil Practice Act (c 110, § 48(1) (b), Ill Rev Stats 1965) and since the alleged defect does not appear on the face of the complaint, the motion should have been supported by affidavit. Since plaintiff did not move to strike the motion because of defendants’ failure to file supporting affidavits, any objection thereto on that ground is deemed waived.

Taking the allegations in the motion to dismiss to be true, and assuming therefore, that Albion Brown’s Post is an unincorporated voluntary association, we must determine whether that fact makes the provisions of sections 4 and 8a of chapter 96 inapplicable to these defendants. If the statutory provisions upon which plaintiff relies do not apply, we are confronted with the holdings in Cahill v. Plumbers’ Gas and Steam Fitters’ and Helpers’ Local 93, 238 Ill App 123, and Kingsley v. Amalgamated Meat Cutters & Butcher Workmen of North America Local Union No. 530, 323 Ill App 353, 55 NE2d 554, that at common law a voluntary unincorporated association cannot be sued in its association name, but that all of its members must be named as defendants.

The purpose of the enactment of sections 4 and 8a of chapter 96 is self-evident. Obviously the General Assembly intended that a cause of action arising out of the conduct or transaction of business be not defeated because of the claimant’s inability to identify the individuals who in fact own and conduct the business, and therefore, provided a remedy which could effect satisfaction of any judgment obtained, at least to the extent of the assets held in the assumed name of the business, and further imposed liability on the known owners.

So far as the record here reveals, the defendants named are conducting and transacting business within the contemplation of section 4 of chapter 96 and the complaint states sufficient grounds for invoking the provisions of section 8a. If coincidentally, the same individuals are associated in a voluntary unincorporated association organized for the laudable purposes above set forth, that does not render the provisions of sections 4 and 8a inapplicable to a situation which arises out of the conducting and transaction of business under an assumed name. The fact that the same group, in addition to operating a retail liquor business, engages in nonbusiness activities, does not serve to exempt the business operations from the provisions of these statutes.

Defendants’ contention that the business is incidental to the association’s principal purposes does not alter the fact that this claim arises out of the conduct of a business. The clear intent of chapter 43, section 135, should not be thwarted because the purveyor of the alcoholic beverage which contributed to cause the intoxication engages in more commendable activities. It is axiomatic that many eleemosynary institutions and public service organizations are held liable for wrongs arising from their business activities, and the Federal Reporter contains many decisions imposing liability for excise and income taxes on organizations primarily engaged in charitable, patriotic and public service activities. The injuries of an injured plaintiff are rendered no less painful, nor is his pecuniary loss in any degree mitigated, by the fact that the alcoholic liquor which caused the intoxication resulting in his misfortune was purchased in a store operated by a patriotic organization, rather than a tavern operated by an individual, partnership or corporation.

For the reasons herein set forth, we hold that the provisions of sections 4 and 8a of chapter 96 (c 96, §§ 4, 8a, Ill Rev Stats 1965) are applicable in this case. The judgment of the Circuit Court of Edwards County is reversed, and the cause remanded, with directions to deny the motions to dismiss and to quash service of summons, and for such further proceedings as are consistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

MORAN and EBERSPACHER, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellees, v. Richard Henry Wotchko, Defendant-Appellant. People of the State of Illinois, Plaintiff-Appellees, v. Richard Lee Vesper, Defendant-Appellant.
    Gen. Nos. 66-4M, 66-5M. (Abstract of Decision.)
    Fifth District.
    August 2, 1966.

      Emerson Baetz, of Alton, for appellant; Joseph R. Bartylak, State’s Attorney, of Edwardsville, for appellee.
   Opinion by JUSTICE MORAN. Not to be published in full.


author: EBERSPACHER, J.

text:
    Sesser Community Unit District No. 196, Franklin County, Illinois, Gene Allsup, et al., Plaintiffs-Appellees, v. The County Board of School Trustees of Franklin County, Illinois, H. L. Browning, Secretary, County Board of School Trustees of Franklin County, Illinois, Herbert Mundell and Frank Hayse, and Community Consolidated School District No. 47, Franklin County, Illinois, and Consolidated High School No. 103, Franklin County, Illinois, Defendants-Appellees, and Dallas Rea, et al., A Committee of Ten Designated by the Petitioners to Represent Them in the Matter of a Petition to Detach Territory From Sesser Community Unit District No. 196, Franklin County, Illinois, and The Annexation of Said Territory to Community Consolidated School District No. 47 and to Consolidated High School District No. 103, Both in Franklin County, Illinois, and Dallas Rea, et al., Defendants-Appellants.
    Gen. No. 65-72.
    Fifth District.
    August 2, 1966.

      Hill and Hill, of Benton (Joseph W. Hickman, of counsel), for appellants.
    Hodson & Pennock, of Centralia, for appellees.
   EBERSPACHER, J.

This is an appeal from a judgment of the Circuit Court of Franklin County which reversed the administrative decision of the County Board of School Trustees of Franklin County granting defendants-appellants petitioners’ request to detach certain territory from plaintiff-appellee Sesser Community Unit District No. 196, and annexing the territory to Community Consolidated District No. 47, Franklin County, Illinois, for elementary school purposes and Consolidated High School District No. 103, Franklin County, Illinois. These three districts will herein be referred to respectively as Sesser Unit, Benton Grade and Benton High Districts.

Previous to July 25, 1963, there had been in existence in Franklin County the Valier Community High School District No. 97, which overlaid the Valier Grade School District and parts of a number of other grade school districts including part of the Benton Grade District. On that date all the territory of the Valier Community High School District No. 97 (with all underlying elementary school territory) was legally attached to the Sesser Unit. Despite this annexation two high school students who resided in what was previously the Valier High School District, continued to attend the Benton High School during the 1963-1964 school year as high school students had traditionally done in previous years, and six grade school students who have previously resided in the Benton Grade District, continued to attend Benton Grade School during the 1963-1964 school year. The record shows that for the past 10 years, with few exceptions, they had gone to Benton schools. The record does not disclose, and no claim is made that tuition was ever paid for any students attending Benton High or Benton Grade, who resided outside these respective districts, or whether there was any agreement between the respective districts involved as to attendance of pupils residing in the Sesser Unit territory attending either grade or high school outside the Sesser Unit District. There is also evidence in this record that previous to the time of the annexation of the territory to Sesser there was some understanding with reference to the territory of Benton Grade being allowed to be annexed to Sesser Unit and then detached without objection; that the interested boards of education had conferred about this, and that after the annexation to Sesser, appeals were taken, the cost of which was contributed to by people for whose benefit the agreement had been made, and resulted in the Sesser Unit District expending some $3,000 in defending the annexation, and as a result the Sesser Unit felt they no longer had an obligation to honor the “gentlemen’s agreement.” This evidence was presented as a result of interrogation by a member of the County Board of School Trustees, and examination, following the trustee’s inquiry, by the Sesser Unit’s counsel, both without objection.

On June 3, 1964, a petition, pursuant to § 7-6 of the School Code, was filed to detach from the Sesser Unit, and annex to Benton High and Benton Grade Districts slightly more than 1,000 acres, practically all of which had been in the Benton Grade District and in the Valier Community High School District, previous to the annexation of the Sesser Unit, of an assessed valuation of approximately $57,750. This petition, when originally acted on by the County Board of School Trustees, apparently failed inasmuch as four board members were present (a quorum), three of them voted to allow the petition and one voted against allowing the petition. Since the statute required a majority of all of the board (seven) to permit “action,” the petition was ruled by the chairman to have failed. Subsequently, in accordance with the statute, the petitioners, through their committee of ten, filed a motion for a rehearing which rehearing was taken under advisement and, at length, granted. Acting on the record, the Board then granted the prayer of the petition permitting the detachment and annexation.

The plaintiff school district, from whom the detachment was permitted, commenced a proceeding under the Administrative Review Act. This resulted in a judgment of the circuit court, finding that the order of the defendant, County Board of School Trustees, was erroneous as “not supported by the evidence in the case and is contrary to the manifest weight of the evidence,” and further finding that the County Board did not “give proper consideration to the requirements of § 7-6 of the School Code of Illinois,” in that the evidence showed that “the division of funds and assets resulting from the granting of the petition would jeopardize the educational resources of plaintiff (Sesser) school district and be detrimental to the educational welfare of the pupils of such school district without any corresponding benefit to the educational welfare of the pupils of the defendant school districts, or to the pupils of the entire area.” From this order this appeal has been perfected.

The Administrative Review Act of Illinois, par 11 (111 Rev Stats c 110, par 274), states:

“The findings and conclusion of the Administrative Agency on questions of fact shall be held to be prima facie true and correct.”

However, the court has power to review all questions of law and fact presented by the record on administrative review of an order of the administrative agency, and to reverse such order, where the School Trustees failed to comply with the standards required by the legislature, (Crainville School Dist. v. County Board, 32 Ill App2d 143, 177 NE2d 248), and where the order is not supported by the evidence, or is contrary to the manifest weight of the evidence. (Board of Education of Community Unit School Dist. No. 323 v. County Board, 19 Ill App2d 196,153 NE2d 378, 381.)

Further examining the record we find that both the Sesser and Benton systems enjoy approval by the North Central Association and the Superintendent of Public Instruction; that both provide bus transportation which goes through the affected area, or immediately adjacent thereto; transportation to the attendance centers, to which the various students would be assigned, can be provided with no additional expense by the 3 involved districts. The evidence shows the distances and highway conditions to be sufficiently comparable, considering modern transportation practices and methods as being of no consequence. Enrollment of the students from the territory would require no additional facilities or additional teachers.

The Benton High School has in excess of 800 students, while the Sesser High School has in excess of 250. The Junior High School in the Benton Districts has an enrollment of approximately 300 (grades 7 and 8), while the Junior High School in the Sesser District has an enrollment of 130. Both the High School and Junior High School in the Benton systems are of sufficient size to permit departmental operation and provide a potential of more diversification and more varied curricula. On the elementary level the Sesser Unit has in addition to the usual elementary program, music, art, and Spanish; in the Benton District in addition to the usual elementary program there is a guidance program, speech correction, remedial reading, vocal music, band, athletics, and a strong health program, with a language program in French. Benton has available school oriented activities such as Parent-Teachers Association, Brownie and Cub Scouts and a health program in cooperation with the Bi-County Health Board. The Junior High School at Benton has its own athletic program, health program, Glee Club, and Student Council. The High School at Benton is of sufficient size to operate a department of guidance, approved by the State Department, involving three members of its staff.

That the opportunity for a well-rounded education for children at all levels is superior in the Benton Districts is well supported by this record.

It is important to note that while the petition is in the form of a request for detachment from the Sesser Unit, the action of the School Trustees in granting the petition maintains the status quo, with reference to attendance; children in the territory would continue as they have for as long as this record shows, to attend Benton schools. While there was evidence of personal desire and convenience, there was ample evidence that it was the desire of petitioners that the children in the territory continue to have a better opportunity for a better education; the parents preferred the challenge and competition coming from a larger school system, with the increased opportunity for scholastic and extra curricular competition. In one case they wished to continue with the speech correctionist who had been aiding their son. It is evident that were the petition denied, the students involved who had started in French in grade school, would have to begin Spanish, if they desired a foreign language course, and could only return to their study of French when they reached high school in the Sesser Unit. It is conceded that personal desires and conveniences of the petitioners also influenced the preference of petitioners, but such evidence was coupled with an element of educational opportunity, and a desire for these children to continue their identification with school districts in their natural community center.

That part of the School Code which provides that the School Trustees “shall determine whether it is to the best interest of the schools of the area and the educational welfare of the pupils that such change in boundaries be granted,” (c 122, § 7-6), despite the fact that such language is coupled with financial considerations, certainly does not take away from the great weight of evidence of educational opportunity and continuity in education. Work experiences and inspiration obtained outside the classroom may be as valuable as the classroom experiences, and where students may conveniently ride with their parents to attend and participate in school functions, after the bus has taken others home, or while the parents are attending to matters in their community-center, are educational experiences that should not be summarily denied the children involved.

We are not unmindful of the admonitions of Oakdale Community Consol. Unit School Dist. No. 1 v. County Board, 12 Ill2d 190, 145 NE2d 736, that boundaries are not to be changed by the shopping, banking, or school preferences, and that personal preferences do not control. Nor do we disregard the rule of Trico Community Unit School Dist. No. 176 v. County Board of School Trustees, 8 Ill App2d 494, 131 NE2d 829, which rule was approved by our Supreme Court in the Oakdale case, that

“Although the residents of territories within the district may initiate a petition for detachment because of personal desires or convenience, much more is needed to support the board’s decision to change established boundaries. The welfare of the affected districts and the pupils as a whole must control, rather than the wishes of a few, and such petitions granted only where the benefit derived by the annexing or affected areas clearly outweighs the detriment resulting to the losing district and the surrounding community as a whole.”

From this record we are of the opinion that the language found in Burnridge v. School Trustees of Kane County, 25 Ill App2d 503, 167 NE2d 21, is particularly applicable. At pages 509 and 510, 25 Ill App2d (167 NE 2d, p 24), the court said:

“But even as much or more than these considerations, is the fact that an identification with a school district in a child’s natural community center will inevitably result in increased participation in school activities by the child and his parents. Such increased participation cannot but result in an improvement in the educational picture of the entire area. By the same token, an unnatural identification with a school district would have an opposite result with a corresponding loss of participation and resulting poorer educational picture. In recognition of these facts the legislature made provision for proceedings to change the boundaries of existing districts.”

Section 7-6 of the School Code also provides in part:

“Prior to the hearing the secretary shall submit to the county board of school trustees maps showing the districts involved, a written report of financial and educational conditions of districts involved and the probable effect of the proposed changes . . . . The county board of school trustees shall hear evidence as to the school needs and conditions of the territory in the area within and adjacent thereto and as to the ability of the districts affected to meet the standards of recognition as prescribed by the Superintendent of Public Instruction, and shall take into consideration the division of funds and assets which will result from the change of boundaries . . . .”

Examination of the record shows that the necessary maps were presented. The secretary, in compliance with the statute, presented a written report of the financial and educational conditions of the districts involved. It showed the financial condition and status of each of the districts as of June 30, 1963, taken from the latest reports filed by the respective districts in his office, including assessed valuations, comparative tax rates, bonded indebtedness, bond limits, assessed valuation of each of the districts of the petition was granted, comparative enrollments, number of teachers, and average daily attendance, and the number of school children residing in the territory. While this petition was presented almost a year later than the 1963 report, the 1963 report was the last official report available to the secretary, and we hold it to meet the requirements. of the statute. He is not required to keep a daily account of the financial condition of the schools, and unless evidence, other than opinion evidence of a change of condition is presented to him, it would be unreasonable to expect his report to reflect any other than official figures. No objection was made to the adequacy of the report in the hearing. The Sesser Unit has contended that its financial condition deteriorated due to the Valier annexation which is not shown by the report. The record discloses that the Sesser Unit had made some expenditures which it had not anticipated at the time it annexed Valier, and presented evidence that there would be other expenditures which they had not anticipated at the time of that annexation. It was shown however that such expenditures were made necessary because previous to and at the time of the Valier annexation they had misapprehended the indebtedness of the Valier District and the physical condition of its properties, and that its assessed valuation would not produce as much revenue as they had contemplated. At the time of the hearing, they had received no taxes from this territory, and of course had not received any State aid, since none of the pupils involved had ever been in attendance in the Sesser Unit.

The record shows that the Benton Districts are not levying the maximum without referendum, and the bonded indebtedness of the Benton Districts is much greater than that of the Sesser District. The Sesser rate is the maximum permitted without referendum, but no component of its school tax rate of 2.72 is at the maximum, although both the educational and building tax rate are at the maximum, without referendum; no referendum has been attempted. Applying the Sesser rate to the assessed valuation of the territory involved, it would produce approximately $1,500 in tax revenue. State aid to the system which the 8 children would attend would at existing rates amount to approximately $500 to $1,000 per year, depending on attendance. The total of this revenue amounts to approximately 1% of the Sesser Unit’s State aid and local taxes as shown by its June 1963 report. Normally there is more variation than 1% in the receipts from year to year, according to varying collection rates and the number of pupils in average daily attendance. It is a misnomer to say that the Sesser Unit will lose this sum, because since the students are attending Benton Schools, they are not getting the State aid for these students; Sesser has likewise never had the tax revenue. In terms of materials and educational welfare, it would appear that the materials which the revenue would provide, would be of equal value to the Benton Districts, and since the Benton tax rates, on a combined basis, are slightly below the Sesser rate, and the indebtedness of the Benton Districts so appreciably greater, the need per student in the Benton Districts would be more acute.

The merits of these modest proportions of school income, cannot as a matter of law, be considered as determinative. In Board of Education, McLeansboro Tp. High School v. County Board of School Trustees, 45 Ill App2d 292,196 NE2d 3 at p 4, the court said:

“. . . no single fact is controlling in connection with the decision of the Board (Kinney v. County Board of School Trustees, 7 Ill App2d 286, 129 NE2d 292). The cases indicate that it was not the intention of the Legislature to freeze boundaries of school districts in order to prevent an increase in tax rate, and that where detachment is determined, there must necessarily be some financial loss to the school district (not all of the property owned by the persons seeking detachment was included in the detachment petition). Loss of revenue cannot be the basis for denying detachment (Community Unit School District, etc. v. County Board, 9 Ill App2d 116, 132 NE2d 584.)”

See also School Dist. No. 106 v. County Board of School Trustees of Cook County, 48 Ill App2d 158, 198 NE2d 164, and cases cited herein.

The Sesser District’s contention that any persistent erosion has taken place by reason of the fact that it has been required to defend four petitions by which it was put to legal expense is misstatement of erosion. Legal expense is no defense to a petition for detachment.

As they point out, the Sesser District, within a one-year period of this petition, had annexed to it the entire Yalier District territory plus portions of several other districts. Since this annexation, 160 acres were detached in one petition. The Sesser District was well aware that this petition was contemplated and had apparently indicated its prior intention to assent to this detachment. The territory involved in this case was less than ten percent of the over 12,000 acres recently annexed to the Sesser District. They indicate that the defendant somehow, although they had no authority in law to do so, should have amended the petition annexing the 12,000 acres to Sesser to withdraw their territory. They fail to point out how it was possible for these present defendants, who were not then petitioners to annex to Sesser, could have amended this petition by their own action. The malady of which Sesser now claims to suffer is accretion rather than erosion, and these problems were voluntarily assumed, without interference from these petitioners who obviously relied on commitments of the Sesser Unit to assent to their annexation to the Benton Districts.

The plaintiffs make some point that the Compulsory School Attendance Law provides that the person having custody of a child “shall cause such child to attend some public school in the district wherein the child resides.”

They evidently overlooked People v. Levison, 404 Ill 574,14 ALR2d 1364, where the court said:

“The object is that all children shall be educated not that they shall be educated in any particular manner or place.”

The construction placed on this statute by the plaintiffs ignores the statute permitting districts to pay tuition to other districts for the education of the district’s children (Ill Rev Stats 1963, c 122, § 10-22 and § 12-20) and the statute which provides authority to school districts “to admit nonresident pupils when it can be done without prejudice to the rights of resident pupils and to provide them with any services of the school including transportation” (Ill Rev Stats 1963, c 122, § 10-22.5).

Here the evidence of the two Sesser employees that the Sesser Unit would be financially jeopardized by allowing this annexation to the Benton Districts does not foreclose the manifest weight of the evidence, since their opinions are without substantial foundation in the evidence. Where the educational welfare of students is involved, we are not bound to accept such opinions and are not accordingly bound to deny an order to the contrary as being against the manifest weight of the evidence, without regard to the facts on which such opinions purport to be based.

We have also examined the contention that the order violates the rule with reference to compactness and contiguity. The granting of this petition does no violence to any rules concerning compactness and contiguity.

The Board of School Trustees in the present hearing were familiar with the local problems, they were in the best possible position to understand local conditions and school needs; likewise, they were advised by their own records of their attempts to better the educational welfare of the children of the county; they were adequately advised of the financial effect of this action as well as their previous actions. We cannot say that they did not take all these things into consideration, and where there has been substantial compliance with the statute, their determination should be affirmed. The judgment of the Franklin County Circuit Court is therefore reversed, and the order of the Franklin County Board of School Trustees is affirmed.

Judgment reversed.

GOLDENHERSH and MORAN, JJ., concur.