text:
    Harold Preston Potts, Appellant, v. The People of the State of Illinois, Appellee.
    Gen. No. 66—68.
    Fifth District.
    February 21, 1967.

      Charles R. Jelliffee, of Harrisburg, for appellant.
    No brief filed in behalf of appellee.
   EBERSPACHER, J.

On April 27, 1965, the State’s Attorney filed in the Circuit Court a petition stating that the defendant had been charged with the offense of indecent solicitation of a child in two counts; that defendant had a “long record of previous molestation of children” and had committed statutory rape in June of 1959, and was in August 1959 examined by a qualified psychiatrist who recommended that defendant have psychiatric care, and had been committed to the Director of Public Safety and kept in secure custody for a time. The petition further alleged that defendant needed “additional care under said director” and prayed that the court appoint qualified psychiatrists to examine defendant and file their report, and that the court hold a hearing on the petition to determine whether the defendant should be committed to the Director of Public Safety to be safely kept for care and treatment.

The court thereafter appointed counsel for defendant and appointed two doctors as a commission to examine the defendant; their joint report was filed on May 13, 1965. In it both expressed the opinion that defendant was a sexually dangerous person. Thereafter, on July 14,1965, in a separate proceeding, defendant was indicted for attempt at indecent solicitation of a child.

A hearing was had on January 13, 1966, and at the hearing the defendant waived a jury trial, entered a plea of not guilty, and the hearing was held before the court without a jury. The court inquired as to whether the State’s Attorney had any evidence to present to which the State’s Attorney answered, “nothing only the report of the psychiatrist” and inquired “if this is going to be only a preliminary hearing.” The court advised that it was a hearing on the petition to determine if defendant was a sexually dangerous person. Over the objection of defendant’s appointed counsel, the joint report of the doctors was admitted into evidence, and over objection of defendant the indictment returned on July 14, 1965, was also admitted into evidence. Both the petitioner and defendant rested, and the court adjudged defendant to be a sexually dangerous person, and ordered a mittimus to issue for delivery of defendant to the Menard Branch of the Illinois State Penitentiary. Thereupon the State’s Attorney nollied the indictment.

In the hearing neither were any witnesses sworn nor did any person testify. The judgment and committing order recited that an information had been filed on the same date as the petition, and that defendant had been indicted on July 16, 1965, (almost 3 months after the petition was filed), and the petition recited that charges had been filed. No information or charges appear in the record and the filing of none is shown in the judge’s docket entries in this cause.

The State’s Attorney has not seen fit to file briefs or in any way participate in this appeal; and while we might be justified in considering his failure to perform his duty as a confession of each of the errors complained of, we consider the best interests of the public served by our scrutiny of the record. Such scrutiny convinces us that the State’s Attorney spent approximately the same amount of time in the preparation and disposition of this case in the trial court, as he has in defending the proceedings in this court.

The Sexually Dangerous Persons Act (Ill Rev Stats, c 38, Article 105), is a part of the Code of Criminal Procedure of 1963; proceedings under the Act must be a part of a criminal proceeding. Section 3 of the Act provides that the petition is to be filed “in the same proceeding wherein such person stands charged with a criminal offense.” Here the record shows this was an independent separate proceeding, at the most related to criminal charges by the recitations found in the petition and order, but not a part of any criminal proceeding. The fact that an indictment returned almost 3 months after the petition was filed, was offered in evidence, does not sufficiently relate the proceedings to a pending criminal charge, or make them a part of a criminal proceeding.

When we consider the petition, in the light of its allegation to the effect that defendant had been released from the psychiatric care to which he had been committed in 1959, we can only presume that his release came in 1962, as no longer in need of mental treatment and that he was not then in need of mental treatment ; and as a result, we do not find therein allegations tending to show defendant was a sexually dangerous person within the meaning of the Act. The fact that the petitioner alleged that defendant had a “long record” of molestation of children fails to meet the requirements of an allegation that for one year, immediately prior to the filing of the petition, defendant was suffering a mental illness with propensities to the commission of sex offenses. See section 1 of the Act.

Although the proceedings under the Act are called civil in nature, since they may result in a deprivation of liberty and a defendant may be incarcerated in the penitentiary for psychiatric treatment, the courts have held the defendant must be accorded the essential protection available at a criminal trial. People v. Olmstead, 32 Ill2d 306, 205 NE2d 625; People v. Beshears, 65 Ill App2d 446, 213 NE2d 55. One. of the essential protections available at a criminal trial is the constitutional requirement that the accused shall have the right to appear and defend in person, and to meet the witnesses face to face. Constitution of Illinois, art II, § 9. People v. Nastasio, 19 Ill2d 524, 527,168 NE2d 728.

Here no witness took the stand in support of the petition; there is nothing in the record to show that the court appointed physicians met the qualifications of sections 4 and 4.01 of the Act. In People v. Olmstead, supra, the defendant was found to be a sexually dangerous person following the testimony at the trial of a qualified psychiatrist within the meaning of the Act. In that case only one of the two examining qualified psychiatrists testified at the trial and on appeal the defendant contended the evidence was insufficient since only one of the two psychiatrists appeared and testified. At page 312 the court stated as follows:

“The statute provides that two qualified psychiatrists shall be appointed to examine the defendant. This was done, and their reports filed in the cause. Both reports support the finding of the trial court and are a part of the court record. We find no requirement in the Act that both psychiatrists shall testify, and we feel that the testimony of one may provide a prima facie case in the absence of contradictory reports.”

Obviously, the People have failed to make a prima facie case against the defendant.

This court appreciates the efforts of counsel appointed to perfect and present this appeal in this court, and commends such appointed counsel for the clarity and conciseness of an excellent brief and argument.

The order of the circuit court must be reversed and since there is no criminal proceeding pending which could serve as the basis for proper proceedings under the Sexually Dangerous Persons Act, no proper legal purpose would be served by remanding this cause. The judgment declaring the defendant a sexually dangerous person is reversed.

Reversed.

MORAN and GOLDENHERSH, JJ., concur.

       Ill Rev Stats, c 38, § 105-4 and § 105-4.1. See 4. “After the filing of the petition, the court shall appoint two qualified psychiatrists to make a personal examination of such alleged sexually dangerous person, to ascertain whether such person is sexually dangerous, and the psychiatrists shall file with the court a report in writing of the result of their examination, a copy of which shall be delivered to the respondent.”
      Sec 4.1. “ ‘Qualified psychiatrist’ means a reputable physician licensed in Illinois to practice medicine in all its branches, who has specialized in the diagnosis and treatment of mental and nervous disorders for a period of not less than 5 years.”


source: Caselaw Access Project

author: JUSTICE BURKE.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eddie Johnson, Defendant-Appellant.
    Gen No. 51,204.
    First District, Second Division.
    March 1, 1967.
    Ronald M. Dietrich, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Ronald Sandler, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: MR. JUSTICE SEIDENFELD

text:
    Doris B. Sauer, formerly Doris B. McKinney, Administra-trix of the Estate of Darrell E. McKinney, Sr., Deceased, Plaintiff-Appellee, v. Philmore E. Iskowich, Public Administrator of the Estate of Grandell J. Ring, Deceased, and Northern Illinois Corporation, Defendants-Appellants.
    Gen. No. 66-48.
    Second District.
    March 1, 1967.
    Williams, McCarthy, Kinley and Rudy, of Rockford, for appellants.

      Fearer and Nye, of Oregon, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

This appeal from the judgment entered on a jury verdict in a wrongful death action essentially involves the narrow issue of whether Grandell J. Ring was the agent of the defendant, Northern Illinois Corporation, at the time of collision in question.

The facts are undisputed. The defendant, Northern Illinois Corporation, is a finance company having its principal office in DeKalb, Illinois. On June 27,1961, Bion Renfer was employed by the company to call on delinquent accounts, make collections and make repossessions when necessary. On that day he had to pick up a car that had been repossessed in Rockford. He left DeKalb about noon and drove a company car to Rockford, taking Grandell Ring with him to drive the repossessed car back. Grandell Ring did occasional work for Northern Illinois Corporation such as driving repossessed cars, returning them to DeKalb from out of town, and doing handyman work around the warehouse. He was paid in cash for each job he did for the company. Mr. Renfer repossessed the car in Rockford and Mr. Ring drove it to Stevens Pontiac and Buick Garage in Rochelle where it was left. Then Mr. Renfer asked Ring to go to Sycamore with him to repossess a 1960 two-door Pontiac, maroon in color, which Harold Garland had financed through Northern Illinois Corporation. The Pontiac was found in Sycamore, dealer license plates were substituted for Garland’s, and Ring drove it back to DeKalb behind Renfer in the company car. They drove to the company warehouse on Locust Street in DeKalb, between Fourth and Sixth Streets, but the doors were locked and no one was there. They arrived at the warehouse between 5:15 p. m. and 5:50 p. m. The warehouse closed at 5 p. m.

Bion Renfer knew that Harold Walker, the man in charge of the warehouse, occasionally after hours would go to the Midway Produce stand, two miles out of De Kalb on Sycamore Road, and consequently, Renfer and Ring went there. They found Mr. Walker there. Renfer told him the car had just been repossessed and asked what should be done with it in view of the fact that the warehouse was closed. Mr. Walker told Mr. Ring to take the car to Dewey’s Mobil Station on the corner of Seventh and Oak in DeKalb and leave it there and that he (Walker) would pick it up in the morning. Thereupon, Grandell Ring drove away towards DeKalb in the repossessed Pontiac and Bion Renfer went towards Sycamore in the company car to make other calls further north. Any automobiles which Northern Illinois Corporation repossessed were taken to its warehouse or otherwise to Dewey’s Mobil Station, a service station then operated by Larry Dewey. Northern Illinois Corporation had no business relationship with Dewey other than as a customer.

According to Larry Dewey, at about 6 p. m. on the evening of June 27, 1961, Grandell Ring drove the car into his station. They conversed briefly and after five or ten minutes, Grandell Ring got out of the car, left it at the station and left on foot. About an hour later, around 7:00 o’clock, Grandell Ring returned to the service station, picked up the car and left. Mr. Dewey stayed in the station until 10:30 p. m. but Ring had not returned, and he went home.

Grandell Ring was next seen in the Highway Tavern at Rochelle around 10:00 p. m. by Russell Myers. Mr. Myers was a salesman for Stephens Pontiac-Buick and was acquainted with Grandell Ring. According to him, Ring had either been there quite some time or was quite tired. He presumed he had been drinking for some time.

At approximately 12:50 a. m. Grandell Ring, while driving the Pontiac in an easterly direction on' Highway U. S. Alt. 30 about two miles west of DeKalb, went over into the westbound lane and collided with the westbound car of Darrell E. McKinney, Sr. Both drivers were killed. A blood analysis of Grandell Ring by a pathologist revealed it to contain 44 milligrams of ethyl alcohol.

Prior to the trial the plaintiff, administratrix of the estate of Darrell E. McKinney, Sr., one of the deceased drivers, voluntarily dismissed the public administrator of the Estate of Grandell J. Ring as a party defendant. The jury returned a verdict in favor of the Plaintiff and against the Defendant Northern Illinois Corporation in the amount of $30,000 and judgment was entered on the verdict.

The theory of the defendant is that the verdict was against the manifest weight of the evidence and that the trial court erred in denying its motion for a directed verdict. The defendant, in the alternative, urges error sufficient for a retrial, in the exclusion of a declaration of intention allegedly made by Ring to Dewey when Ring took the car away from the Dewey Mobil Station.

Plaintiff urges that the jury could reasonably find from the evidence that Ring was acting in the scope of his employment at the time of the accident; that if Ring deviated earlier from his employment, he had returned to his employment at the time of the accident in that it happened while Ring was driving in the direction of the Mobil station and could be presumed to be returning; and that the exclusion of Ring’s statement of intention was, at the most, harmless error.

While no question is raised as to instructions, it may be noted that one of the questions the jury had to decide was whether Ring was acting within the scope of his authority. In the language of Illinois Pattern Jury Instruction 50.06, the law was stated to be as follows:

“An agent is acting within the scope of his authority if he is engaged in the transaction of business which has been assigned to him by his principal, or if he is doing anything which may reasonably be said to have been contemplated as a part of his employment. It is not necessary that an act or failure to act must have been expressly authorized by Northern Illinois Corporation.”

This statement of the law is consistent with the rules stated in many cases in this state. However, the application of the rule to a variety of facts and circumstances in individual cases leads to the conclusion that the “rule” is a mode of announcing a result in a given case rather than an instrument of prediction. The mere fact that the employee is not, at the instant of the accident, immediately and sole-mindedly pursuing his employer’s occupation, does not necessarily take him out of the scope of his employment. All questions are to be decided in the light of all the relevant factors as to the nature of the employment, and, preeminently, the purpose and physical and temporal degree of the alleged deviation. Anno 51 ALR2d 120,122.

In reaching conclusions many courts have applied the Restatement of Agency 2d, which provides, as applicable here:

§ 229. Kind of conduct within scope of employment.
(1) To be within the scope of the employment, conduct must be of the same general nature as that authorized or incidental to the conduct authorized.
(2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered:
(a) whether or not the act is one commonly done by such servants;
(b) the time, place and purpose of the act;
(c) the previous relations between the master and servant;
(f) whether or not the master has reason to expect that such an act will be done;
(g) the similarity in quality of the act done to the act authorized;
(h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant;
(i) the extent of departure from the normal method of accomplishing an authorized result; . . .
§ 235. Conduct not for purpose of serving master. An act of a servant is not within the scope of employment if it is done with no intention to perform it as a part of or incident to a service on account of which he is employed.

In Kovell v. North Roseland Motor Sales, 275 Ill App 566, 579 (1934), the First District Appellate Court, seeking to state a degree of predictability in analyzing the varying results in the cases, quoted with approval this language from an earlier Connecticut case:

“Where the deviation is marked and unusual, the court may determine that the servant was not on the master’s business, but on his own; that where deviation is slight and not unusual the court may, and often will, as a matter of law, determine that the servant was still executing his master’s business; that where the question of the master’s responsibility turns principally upon the mere extent of the deviation of the employee from the strict course of his employment ... it has been generally held to be one of fact and not of law, and that cases falling between the extremes will be . . . left to jury . . .”

Lohr v. H. Barkmann Cartage Co., 335 Ill 335, 167 NE 35 (1929) involved an employee who was directed to return a truck to the garage at 5 p. m., instead went on a frolic of his own and had an accident miles from the garage, and while proceeding in a different direction, at 7 a. m. the following morning. The Supreme Court reversed the judgment for the employee. In an earlier Illinois Supreme Court decision in Kavale v. Morton Salt Co., 329 Ill 445, 160 NE 752 (1928) the case was properly submitted to the jury on conflicting testimony as to whether an employee who took out the employer’s truck after he had finished the work for the day was on a “joy-ride” or was delivering wood to another employee in accordance with an alleged customary permission to so use the truck for that purpose. The court held that, under the conflicting facts, it could not say, as a matter of law, that the presumption that the employee, driving the employer’s truck, was in the master’s service, had been overcome.

Parotto v. Standard Paving Co., 345 Ill App 486, 104 NE2d 102 (1952) has been cited by Plaintiff as decisive here. In that case, the employee had instructions to return the employer’s truck to the garage after finishing his work for the day. Instead, he drove past the employer’s garage and went to dinner. After seven hours spent in visiting various taverns, the employee, admittedly on his way back to the garage and within four miles of the garage, was involved in an accident. The court affirmed the jury’s verdict and the judgment on the basis that the employee was serving the master at the time of the accident and that the violation of his instructions to return earlier did not make his possession illegal at the time of the accident.

On the record before this court, neither the above cited cases nor any other Illinois case which has been cited, can be said to have been decided on identical facts and circumstances. There is no direct evidence that Ring was bringing the car back to the mobil station at the time of the accident — at most, an inference, based on the fact he was heading in that direction. His intoxication and high speed further weakened any consideration that he was, at the moment of the accident, caring for the master’s property. (See Caldwell v. Adams, 51 Tenn App 373, 367 SW2d 804, 807 (1963).) Ring did not “deviate” en route to the station — he had already reached there, left the vehicle, and only later returned to take it out. The taking was not shown to be the result of any custom, nor was Dewey a person authorized to permit further use of the vehicle on behalf of the defendant. Ring’s employment was casual. The vehicle was not one over which he had customary control as might be said of a continuing employee. His job was completed when he left the vehicle at the station. His subsequent use of the vehicle was not even partially connected with the business of the employer, but solely for his own frolic.

We do not withdraw from the position that slight deviation from employment instructions may not be used as a refuge by an employer to escape application of the doctrine of “respondeat superior” when a nonnegligent third party seeks his common-law remedy. However, the conclusion that there was only a “slight deviation” in this case is manifestly against the weight of the evidence. Ring was not returning to his employment. His employment had been concluded when he left the car at the Mobil station. A contrary conclusion under the peculiar facts and circumstances of this case would result in a rule that no matter the nature of the employment or the circumstances of the deviation, the mere direction of the vehicle toward the city where the original objective was located may be considered a resumption of the employment in the employer’s business. We believe that this would strain the doctrines of agency beyond any reasonable contemplation.

The judgment of the trial court is reversed. We therefore do not consider the claim of error in the exclusion of certain offered evidence.

Reversed.

DAVIS and ABRAHAMSON, JJ., concur.


author: MR. JUSTICE MORAN

text:
    Raymond Ziegler, Plaintiff-Appellant, v. Henry G. Hodges and Houghton Mifflin Co., a Corporation, Defendants, and Henry G. Hodges, Certain Defendant-Appellee.
    Gen. No. 66—76.
    Second District.
    March 1, 1967.

      O’Brien, Burnell, Puckett and Barnett, of Aurora, for appellant.
    Matthews, Jordan, Dean and Suhler, of Aurora, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

The plaintiff, Raymond Ziegler, brought this action against the defendants, Houghton-Mifflin Co. and Henry Hodges, for invasion of his right of privacy and for certain monies due under an assignment from the defendant, Henry Hodges, to the plaintiff and accepted by the defendant, Houghton-Mifflin. The defendant, Henry Hodges, was personally served with summons and complaint at his residence in Florida. The defendant, Henry Hodges, moved to quash the service of summons stating that he was not subject to the personal jurisdiction of the court. His motion was granted and an order was entered dismissing the suit as against him, and from this order the plaintiff appeals.

The defendant, Henry Hodges’, motion was accompanied by an affidavit and the plaintiff filed an affidavit and a supplemental affidavit. By his affidavit the defendant, Henry Hodges merely avers that he has never submitted to the jurisdiction of the court in said action, that he has never committed any of the acts set forth in chapter 110, section 17 of the Civil Practice Act (c 110, § 17, Ill Rev Stats 1965), providing for substituted service on a defendant residing outside the State of Illinois, and that he had not been inside the State of Illinois for more than ten years last past.

The plaintiff by his affidavit and supplemental affidavit avers that in 1961 Henry Hodges made a written offer in- a letter which was sent from Hodges to the plaintiff in Urbana, Illinois; that said offer was for plaintiff to participate with Hodges in writing a certain textbook; that the consideration for plaintiff’s participation in writing said textbook would be a percentage of the royalties received by Hodges from Houghton-Mifflin Co. upon publication of said textbook; that thereafter there were certain long-distance telephone conversations between the plaintiff in Illinois and Hodges in Florida by which the plaintiff accepted the offer of Hodges; that said telephone conversations specifically concerned the agreement to write a portion of the aforesaid textbook; that thereafter certain materials were sent to the plaintiff in Illinois by Hodges to aid the plaintiff in the preparation of his portion of the textbook; that pursuant to the agreement that portion of the textbook to be written by the plaintiff was written by him in Illinois and all labor concerning his writing was performed in Illinois; that the plaintiff sent the fruits of his labor to Hodges in Florida; that that portion of the manuscript prepared by Hodges was sent to the plaintiff in Illinois for the express purpose that the plaintiff edit and comment upon the same; that the plaintiff did edit and comment as requested and that all such labor performed by the plaintiff in this respect was performed within Illinois; that thereafter the plaintiff returned the same to Henry Hodges in Florida and that Hodges knew or should have known that the plaintiff would perform the agreements solicited by Hodges in Illinois; and that the plaintiff was a citizen and resident of Illinois from September 1960 until September 1964.

Although Hodges suggests in his argument that no consideration should be given to the supplemental affidavit, we find no merit to this argument and we are considering the facts as presented by the affidavit of the defendant, Hodges, and the affidavit and supplemental affidavit of the plaintiff as set forth above.

The applicable part of section 17 is as follows:

“(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:
“(a) The transaction of any business within this State. . . .
“(2) Service of process upon any person who is subject to the jurisdiction of the courts of this State, as provided in this Section, may be made by personally serving the summons upon the defendant outside this State, as provided in this Act, with the same force and effect as though summons had been personally served within this State.
“(3) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him is based upon this Section . ” (Emphasis added.)

Ill Rev Stats, 1965, c 110, § 17-la, 2 and 3.

The sole question to be answered in this case is whether the defendant, Hodges, submitted his person to the jurisdiction of the courts of this State by transacting any business in Illinois within the meaning of the above statute.

The determination of what constitutes the transaction of any business within this State within the meaning of section 17 (1) (a) presents a problem of statutory construction within- the constitutional framework. Jurisdiction under section 17 has not been restricted to those cases alone where its language literally describes the activities of the defendant, and it is clear that the reach of the clause is intended to be as broad as the State’s constitutional authority in this field. Koplin v. Thomas, Haab & Botts, 73 Ill App2d 242, 248, 219 NE2d 646 (1966). In Nelson v. Miller, 11 Ill2d 378, 389-390, 143 NE2d 673 (1957), the Court stated as follows:

“Sections 16 and 17 of the Civil Practice Act reflect a conscious purpose to assert jurisdiction over nonresident defendants to the extent permitted by the due-process clause. (Cleary & Seder, Extended Jurisdictional Basis, 50 NULR 599; O’Connor & Goff, Expanded Concepts of State Jurisdiction, 31 ND Law 223.)”

In Gray v. American Radiator & Standard Sanitary Corp., 22 Ill2d 432, 176 NE2d 761 (1961), the Court said at page 437:

“Under modern doctrine the power of a State court to enter a binding judgment against one not served with process within the State depends upon two questions: first, whether he has certain minimum contacts with the State (see International Shoe Co. v. Washington, 326 US 310, 316, 90 L Ed 95, 102), and second, whether there has been a reasonable method of notification. (See International Shoe Co. v. Washington, 326 US 310, 320, 90 L Ed 95, 104-105; Nelson v. Miller, 11 Ill2d 378, 390.)”

The effect of the Gray case cannot be discounted by saying that it was concerned with jurisdiction by reason of a tortious act and not the transaction of business. To employ different tests for subsections (a) and (b) is not to implement, the intended effect of section 17; for where jurisdiction is based on a contract rather than on a tort, the interest of the State is not less nor is the burden on the defendant more.

It does not appear nor was it contended by the counsel for the defendant in his oral argument that the personal presence of the nonresident defendant in this State is required in order for the courts of this State to exercise in personam jurisdiction over the defendant. Gray v. American Radiator & Standard Sanitary Corp., supra. Also see, Department of Revenue v. National Bellas Hess, Inc., 34 Ill2d 164, 214 NE2d 755 (1966).

Rather it appears that the issue in this case rests upon the question as to what are the minimum contacts required for the exercise of the in personam jurisdiction over the nonresident defendant.

In Department of Revenue v. National Bellas Hess, Inc., supra, a section 12a Use Tax case, the nonresident mail order corporation neither maintained a local office nor sent salesmen into Illinois, but availed itself of the mail for local solicitation of mail orders and the goods were mailed or shipped by common carrier. Under section 12a (c 120, par 439, § 12a, Ill Rev Stats 1965), any nonresident of Illinois subject to the provisions of said section appoints the Secretary of State his agent for the service of process and such service shall have the same force and validity as personal service in Illinois upon the taxpayer. The Court held at page 176 that solicitation was of prime importance in satisfying the “minimal connections” requirement of the Use Tax Act; and that the defendant’s continuous local solicitation for mail orders followed by delivery of ordered goods to the customers in Illinois constituted the “minimal contacts” that are requisite to the exercise of the in personam jurisdiction.

In Gray v. American Radiator & Standard Sanitary Corp., supra, at page 438, the Court said:

“In the case at bar the defendant’s only contact with this State is found in the fact that a product manufactured in Ohio was incorporated, in Pennsylvania, into a hot water heater which in the course of commerce was sold to an Illinois consumer. The record fails to disclose whether defendant has done any other business in Illinois, either directly or indirectly; and it is argued, in reliance on the International Shoe test, that since a course of business here has not been shown there are no “minimum contacts” sufficient to support jurisdiction. We do not think, however, that doing a given volume of business is the only way in which a nonresident can form the required connection with this State. Since the International Shoe case was decided the requirements for jurisdiction have been further relaxed, so that at the present time it is sufficient if the act or transaction itself has a substantial connection with the State of the forum.”

Defendant Hodges has cited the case of Grobark v. Addo Machine Co., Inc., 16 Ill2d 426, 158 NE2d 73 (1959), and Orton v. Woods Oil & Gas Co., 249 F2d 198 (1957) and Trippe Mfg. Co. v. Spencer Gifts, Inc., 270 F2d 821 (1959). However, the Gray case was decided after these cases and even the Grobark case represented an extension of the restricted concept of jurisdiction, for the Court there implied that service on the defendant outside the forum State would be proper if the defendant had performed substantial acts within the forum State.

In the instant case there was a continuous contact between the plaintiff and the defendant throughout their transactions. Hodges purposefully and consciously solicited the contract. He actively sought out the plaintiff, an Illinois resident, and induced him to join in the preparation of the textbook. He was in continual contact with Ziegler by mail and telephone. Ziegler, the plaintiff, was at all times in Illinois and this fact must have been known to Hodges. The offer was accepted in Illinois. Hodges’ assignment of ten percent of all royalties was forwarded by him to Houghton-Mifflin Co., in Illinois, was accepted by it in Illinois, and was honored by Hodges from December 6, 1961, until October 22, 1963. The contract was performed in Illinois and the law of Illinois will govern the substantive rights and duties stemming from the transaction as this is clearly an Illinois contract under conflict of laws rules. (Restatement, Conflict of Laws, §§ 332, 350.) The Court has jurisdiction of the codefendant, Houghton-Mifflin Company, a corporation, and the witnesses other than the defendant Hodges are likely to be found in Illinois and not in Florida.

Traditional notions of fair play and substantial justice is the essence of due process in the area of jurisdiction over nonresident defendants and it is no violation of such notions to provide that this case be tried in the Courts of Illinois.

We hold that under the expanded concept of due process as delineated by the Gray case this continuous contact between the plaintiff and the defendant Hodges satisfied the “minimal contacts” prerequisite to in personam jurisdiction of the defendant Hodges.

The order quashing the service of process upon the defendant is reversed.

Reversed.

DAVIS, P. J. and ABRAHAMSON, J., concur.

       See Callaghan's Illinois Digest, same topic and section number.


author: MORAN, P. J.

text:
    Wilburn B. Smock, Plaintiff, v. Nolan M. Williamson, D & M Rentals, Inc., Tempco Products Co., a Corporation, Defendants. Doice Gunnels, Plaintiff, v. Tempco Products Co., a Corporation, D & M Rentals, Inc., and Nolan M. Williamson, Defendants.
    Gen. No. 66-78.
    Fifth District.
    February 14, 1967.
    Gosnell & Benecki, of Lawrenceville (Maurice E. Gos-nell, of counsel), for appellants.
    Albert W. McCallister, of Carmi, for appellee.
   MORAN, P. J.

This is an appeal from the Circuit Court of Wabash County, Illinois, from an order of the trial court denying the defendants’ motion for judgment against plaintiff, Wilburn Smock.

After plaintiff Smock filed suit against the defendants for personal injuries, Doice Gunnels, a passenger in Smock’s automobile, also filed suit. The cases were consolidated for trial on a motion by the defendants and were tried before a jury. At the end of the arguments, the trial court granted the defendants’ motion for a mistrial as to Smock. The jury then returned a verdict for the defendants and against the plaintiff Gunnels. After Gunnels’ post-trial motion was overruled, the defendants filed a motion for judgment in their favor against plaintiff Smock on the ground that the issue of the defendants’ negligence had been decided by a jury in favor of the defendants and that further litigation of the question was barred under the doctrine of estoppel by verdict. The trial court overruled the defendants’ motion, but found and ordered that “there is no just cause for delay in an appeal by defendants from the Court’s Order . . . .”

Since the order of the trial court did not terminate the litigation between the parties on the merits of the cause so that, if affirmed, the trial court had only to proceed with the execution of the judgment, the order is not final and appealable, and this court has no jurisdiction to hear this appeal. Village of Niles v. Szczesny, 13 Ill2d 45, 147 NE2d 371; Midstates Finance Co. v. Waller, 67 Ill App2d 437, 214 NE2d 624.

For the foregoing reasons this appeal is dismissed and the case is remanded for further proceedings not inconsistent with this opinion.

Appeal dismissed and case remanded.

GOLDENHERSH and EBERSPACHER, JJ., concur.

       Since the court declared a mistrial, this vitiated all the proceedings up to that time, and, in legal effect, was equivalent to no trial at all. ILP Trial § 21, and 88 CJS Trial § 36b. Haywood v. Swift & Co., 53 Ill App2d 179, 202 NE2d 880.


author: MR. JUSTICE DEMPSEY

text:
    Nardi, Pain & Podolsky, Incorporated, Plaintiff-Appellant, v. Vignola Furniture Company, Defendant-Appellee.
    Gen. No. 51,467.
    First District, Third Division.
    March 2, 1967.

      Feinberg and Fried, of Chicago (Raymond K. Fried, of counsel), for appellant.
    Koza and Shaw, of Chicago (Edward M. Koza, of counsel) , for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The plaintiff, a real estate broker, appeals from a summary judgment entered in favor of the defendant. The complaint alleged that the defendant owed the plaintiff $4,000 in commission for its services in finding a purchaser for the defendant’s property. The defendant answered that it had been willing to sell but that the purchaser produced by the plaintiff did not comply with one of the defendant’s conditions of sale. After the case was at issue, both parties filed motions for summary judgment supported by affidavits and exhibits. The court granted the defendant’s motion and dismissed the complaint.

The plaintiff contends that the judgment should be reversed because the condition of sale set forth in the defendant’s answer was not contained in its agreement with the plaintiff and was not specified by the defendant at the time it terminated negotiations with the prospective purchaser. The plaintiff further contends that the defendant’s motion for summary judgment did not raise a substantial defense to the plaintiff’s right to a commission and that the affidavit supporting the motion did not show that the affiant, if sworn as a witness at the trial, would be competent to testify to the facts set forth in the affidavit.

It appears from the pleadings, affidavits and exhibits that during May, 1965, discussions were held between the plaintiff-broker and the defendant concerning the possible sale of the defendant’s property. An offer of $70,000, relayed by the plaintiff, had been refused by the defendant. On May 26th the defendant, for the first time, authorized the plaintiff to negotiate a sale and said that it would consider a price of $75,000 — net after the deduction of the plaintiff’s commission. The plaintiff informed a prospective purchaser of the defendant’s willingness to sell, and on May 28th the attorney for the purchaser wrote the defendant that his client was prepared to pay $79,000 subject to certain conditions. The offer to purchase was limited to five days from the date of the attorney’s letter.

On June 11, 1965, the defendant wrote the plaintiff that it would sell its property to the plaintiff’s client. It accepted the conditions set out in the attorney’s letter of May 28th but enumerated certain conditions of its own. Of the conditions, the one with which we are concerned, No. 5, stated: “This offer is contingent upon the ability of the seller to obtain favorable mortgage for the seller’s proposed new warehouse building.” The offer to sell was to remain open for ten days from the date of the letter.

The broker communicated this offer to the purchaser who, on June 15th, replied through its attorney that the offer was acceptable and that the attorney would prepare the contract of sale. The broker wrote the defendant on June 16th, enclosed a copy of the letter of June 15th, and stated that the conditions outlined in the defendant’s letter of June 11th were acceptable to the purchaser.

The contract, drafted by the purchaser’s attorney, was submitted to the defendant on June 25th. It made no mention of the defendant’s condition No. 5.

After June 25th the purchaser’s attorney wrote the lawyer for the defendant, referred to several telephone conversations between them and asked that the defendant’s lawyer contact him so that a contract could be drawn which would be acceptable to both sides. The defendant’s lawyer returned the unexecuted contract and informed the purchaser’s attorney that the defendant would not enter into any agreement.

If the plaintiff produced a purchaser who was ready, willing and able to buy the property on the defendant’s terms it earned and was entitled to its commission. Chiagouris v. Continental Trailways, 50 Ill App 2d 196, 200 NE2d 399 (1964); 12 Am Jur2d, Brokers, § 183; 12 CJS, Brokers, § 85. The questions are whether the plaintiff found such a purchaser and whether the plaintiff accepted employment with knowledge of the defendant’s terms.

The plaintiff states that condition No. 5 was not specified in its agreement with the defendant, that noncompliance with this condition was not given by the defendant as the reason for rejecting the purchaser’s offer to buy, and that the injection of this defense into the case is an unfair attempt to avoid the obligation to pay the earned commission.

The evidence heretofore delineated does not disclose whether or not condition No. 5 was known to the plaintiff before or on May 26, 1965, when the defendant authorized it to negotiate the sale. However, the evidence does disclose that the condition was known to the plaintiff on June 11th — through the medium of the defendant’s letter of that date. It can be inferred that, even if the plaintiff did not know of the condition theretofore, it accepted the condition after receiving that letter because it did not then claim that the condition was new or that it altered the terms of its employment; and, furthermore, it transmitted the defendant’s proposal to the purchaser and informed the defendant on June 16th that the terms were acceptable.

The resolution of the question as to the terms of the plaintiff’s employment does not, however, rest on this inference. The question is resolved by the affidavits and pleadings. The affidavit in support of the defendant’s motion for summary judgment asserted that the plaintiff knew on or before May 26th “that any sale was conditioned upon seller’s ability to obtain a favorable mortgage for a proposed new warehouse building and knew that any acceptable offer would be contingent upon acceptance of a purchase under said condition. . . .” Although the plaintiff filed an answer to the motion, the defendant’s allegation was not denied. Hence, for the purpose of summary judgment, the truth of the allegation was admitted. Grant v. Reily, 346 Ill App 399, 105 NE2d 316 (1952). Upon the record before it, the trial court correctly concluded that the plaintiff knew of condition No. 5 and accepted employment under that condition.

The plaintiff next contends that the purchaser was ready to buy the property and was willing to accede to the defendant’s terms; it argues that, because the defendant did not state any reason for rejecting the contract tendered by the purchaser, it is now precluded from asserting condition No. 5 as a defense. In Smith v. Keeler, 151 Ill 518, 38 NE 250 (1894), relied upon by the plaintiff, Smith, the seller, employed Keeler, the broker, to sell some property — part for cash and part on time. Smith previously had employed Keeler to sell other property in the same manner. Keeler found a buyer and executed a contract on terms similar to those used in the past. When informed of the sale, Smith declined to carry out the contract on the sole ground that he had received a better offer and had decided to retain the property. Keeler sued for his commission and Smith defended on the ground that Keeler was not authorized to arrange a sale on the terms stated in the contract. In holding for Keeler, the reviewing court stated that it could be inferred that the terms in question were within Keeler’s reasonable discretion; that Smith’s failure to find fault with the terms furnished evidence that Keeler had made the sale upon terms which were within the purview of his authority, and that the terms would have been satisfactory to Smith if he had not concluded to withdraw his property from the market. The Smith opinion does not support the plaintiff’s contention that in the present case it was incumbent upon the defendant to announce its reason for rejecting the purchaser’s contract. The opinion merely indicated that Smith’s failure to object to the contract which Keeler prepared was evidence that Keeler acted within the scope of his authority.

Under the circumstances of the present case the defendant was under no obligation to state its reason for not signing the proffered contract or to reopen negotiations. The purchaser not only had indicated approval of condition No. 5 but, in addition to this, had specifically inquired of the plaintiff in a letter dated June 15, 1965, “whether the mortgage set forth as item 5 in the offer has been obtained.” Despite this prior awareness, the contract, prepared a few days later by the purchaser, ignored the condition. The defendant had a right to regard this as a repudiation of the condition and as a tender of a new proposal. The evidence does not support the position of the plaintiff that it produced a purchaser ready or willing to accept the terms offered by the defendant. Since the plaintiff did not, the defendant was free either to accept the new proposal or to decline to do so without giving either the plaintiff or the purchaser its reason. 12 Am Jur2d, Brokers, § 185; Corbin on Contracts (1963) § 50.

The plaintiff also argues that condition No. 5 was unclear and could be understood only by the defendant, and therefore the defendant should not be permitted to avoid its liability by the interjection of such a “nonsensical” condition. If the plaintiff thought this condition nonsensical he should have objected to it but, as we have pointed out, this was never done. The purchaser may not have liked it, but we are not concerned with a contract between a seller and a purchaser but with the contract between the seller and the broker. The fact that the plaintiff may have found this condition burdensome does not relieve it from its own imprudence in entering into the contract knowing of this condition. Contracting parties may be left free to employ in the market place whatever they may possess of wisdom or folly, and are bound by the plain and unambiguous terms of whatever agreements they may reach. Weiland Tool & Mfg. Co. v. Whitney, 40 Ill App2d 70, 188 NE2d 756 (1963); Illinois State Toll Highway Commission ex rel. Patten Tractor & Equipment Co., v. M. J. Boyle & Co., 38 Ill App2d 38, 186 NE2d 390 (1962).

The plaintiff also maintains that its motion for summary judgment should have been granted because the affidavit supporting the defendant’s countermotion did not comply with Supreme Court Rule 15. This rule states, in part, that the affidavits accompanying motions for summary judgment . . shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto . . Ill Rev Stats 1965, c110, subsec 101.15(1).

The only portion of the defendant’s affidavit which could be considered conclusionary is the final statement that the plaintiff failed to find a purchaser who was ready, willing and able to purchase on the defendant’s terms. However, because an affidavit contains some inadmissible statements the entire affidavit is not thereby invalidated. Winger v. Richards-Wilcox Mfg. Co., 33 Ill App2d 115, 178 NE2d 659 (1961). The affidavit was sworn to by the general manager of the defendant. He stated that he was the duly authorized agent of the defendant and had knowledge of all of the facts relative to the dispute. While the affidavit contains no express statement to the effect that the affiant, if called upon as a witness, could competently testify to the facts therein, such a technical compliance is unnecessary. The test is whether or not it appears from the whole of the documents that the affiant would be competent to testify if called upon. Ragen v. Wolfner, 43 Ill App2d 70, 192 NE2d 560 (1963). The exhibits show that it was the ■affiant who wrote the letter authorizing the plaintiff to negotiate with prospective purchasers for the sale of the realty; that it was the affiant who wrote the letter informing the plaintiff of the terms of the offer to sell, and that it was the affiant to whom the plaintiff wrote saying that the terms were acceptable.

This case differs from Des Plaines Motor Sales, Inc., v. Whetzal, 58 Ill App2d 143, 206 NE2d 806 (1965) cited by the plaintiff, and from Winger v. Richards-Wilcox Mfg. Co., supra. In both of those cases it was clear from the affidavits and accompanying exhibits that the affiants, who were attorneys, had not been personally engaged in the negotiations in question and would have been incompetent to testify about them at a trial. In the present case the affiant was intimately connected with the transaction and would be a competent witness to testify to the facts set forth in his affidavit.

The final contention of the plaintiff is that the defendant’s countermotion merely raised a question of fact as to whether the terms of the sale were met by the purchaser. This contention is without merit. A motion for summary judgment should be denied if upon examination of the record it can be fairly said that a genuine, triable issue of material fact exists. Precision Extrusions, Inc. v. Stewart, 36 Ill App2d 30, 183 NE2d 547 (1962); Goodwin v. Bowers, 24 Ill App2d 158, 164 NE2d 278 (1960). But there is no such issue in the instant case. The defendant’s offer was conditioned upon its ability to obtain a favorable mortgage for its proposed new warehouse. The plaintiff and the prospective purchaser were aware of this fact. The determinative question is whether the contract submitted by the prospective purchaser conformed to the terms listed in the offer of the defendant and not whether the defendant based its refusal on this reason. Since the record showed that the contract submitted to the defendant failed to contain condition No. 5, there was no remaining question of fact to be determined by the trial court. The court properly granted the defendant’s motion for summary judgment.

Affirmed.

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


author: ME. PEESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Sherman McGrath, Defendant-Appellant.
    Gen. No. 50,883.
    First District, Third Division.
    March 2, 1967.

      Allen S. Pierce and Morris Goldman, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   ME. PEESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from a conviction after a bench trial for contributing to the sexual delinquency of a child. Defendant was sentenced to thirty days in the county jail and fined one hundred dollars ($100).

Defendant contends that the magistrate considered incompetent and prejudicial evidence; that the magistrate assumed the role of an advocate rather than that of an impartial trier of the case, and that the guilt of the defendant was not proved beyond a reasonable doubt by the uncorroborated testimony of the complaining witness.

Edward Mattson, Jr., the complaining witness, testified that he spent the night of April 9, 1965, at the home of defendant, while visiting with defendant’s stepson, Frank Homer. The Mattson boy further stated that about 12:30 a. m., while he was asleep, defendant “tried putting his mouth over my penis and I woke up and I said to him what are you doing and he said nothing and I told him to leave me alone and he just walked out.” The next morning Mattson, Jr., told Homer of the incident and the latter said the witness should tell no one and that defendant would never do it again. Therefore complainant did not tell his parents. A month or so later Mattson, Jr., and another friend discussed the matter, and that friend told Homer what Mattson, Jr., had said. Thereafter Homer and Mattson, Jr., had an argument about the incident, after which Homer informed defendant and his wife of Mattson’s, Jr.’s accusation.

McGrath went to the Mattson home to discuss the matter. This was the first time Mattson, Jr., said anything of the incident to his parents. The parents had an argument with defendant and the next day Mattson, Sr., signed a complaint against McGrath.

According to McGrath, on April 9, 1965, he arrived home from work about 4:00 p. m. His wife was not working that night and together they went to a pet shop and purchased a monkey. Defendant presented a check into evidence which was signed by him, dated April 9th, and payable to the Petland Shop. He testified that the complaining witness was at his home that night, along with one Phil LeClair, but that only the latter remained overnight. He denied that the alleged act of perversion occurred. His story was corroborated by the testimony of his wife. Frank Homer also testified that Mattson, Jr., did not spend the night at his house, but that LeClair did.

Defendant first contends that the magistrate considered incompetent evidence prejudicial to defendant in deciding the case. Some of the court’s questioning of the Mattson boy, was as follows:

“The Court: What was said, what did he say to you or to your father and what did you or your father say to him ?
“The Witness: I was arguing with Frank, his son, the night before because I had asked if anything unusual had happened to Frank Kasper when he spent the night at their house. And we were arguing about it and everything.
“The Court: You are saying you asked another
young man, is that correct ?
“The Witness: Yes.
“The Court: Point him out.
“The Witness: (Pointing to another youngster, Frank Kasper.)
“The Court: You were discussing this later on with another youngster, is that correct ?
“The Witness: Yes.
“The Court: You asked this other young man if the defendant had ever tried to do anything to him?
“The Witness: Yes.
“The Court: What did he say.
“The Witness: He said no. He asked me why and I told him what had happened and what Frank had said to me about not telling anybody but Frank Kasper said a lot of people already in the neighborhood knew about Mr. McGrath.
“The Court: How did they already know ?
“The Witness: Well he had tried it on someone else too.”

Clearly the court admitted hearsay evidence in allowing these relations of conversations with others concerning actions and reputation of the accused. Further, an examination of the record shows that the hearsay evidence elicited was of the most damaging nature to defendant.

The State argues that the admission of this evidence is not error insofar as there is a presumption that the judge in deciding a case considers only the competent evidence. Although that is generally true, the court in People v. Smith, 55 Ill App2d 480, 204 NE2d 577, pointed out that there are three Illinois cases which hold that the presumption is applicable to chancellors in equity, but does not follow through to criminal cases. People v. Reichert, 352 Ill 358, 185 NE 585; People v. Arendarczyk, 367 Ill 534, 12 NE2d 2; People v. Borrelli, 392 Ill 481, 64 NE2d 719.

While we realize that a long line of decisions affords a criminal judge this favorable presumption, the foregoing three cases have not been commented upon in any of the cases in the line reciting the contrary rule. With or without the presumption, the Smith case held on page 488 that the judgment will be reversed “if it affirmatively appears that he considered incompetent evidence prejudicial to the defendant.”

At the hearing on the motion for a new trial the following discourse occurred:

“Mr. Pierce (defense counsel): ... And further in several areas the answers were not responsive to Your Honor’s questions. That is why I also feel these are bases for a new trial for the defendant.
“The Court: Did you make the proper objections?
“Mr. Pierce: Your Honor, the Court was asking the questions.
“The Court: That makes no difference. No one would put you in jail if you objected. It is done here everyday.
“Mr. Pierce: Every case is different. Your Honor, in the case of People v. Jenkins, it states that the Court, absent of objections is not obliged to permit voluntary testimony which has no relevancy to the case.
“The Court: It is not obliged, but that does not put iron clad rules around my shoulders. It’s discretionary with me. I am not obliged.”

From the foregoing colloquy it would appear that the magistrate acted as prosecutor everyday and that attorneys regularly objected to his improper questions. It could well be reasoned therefrom that in absence of objections to his questions, he relied on the nonresponsive answers and voluntary testimony of no relevance to the case on trial in reaching a decision on the matter of guilt.

We feel that the magistrate in the instant case displayed a reliance on prejudicial evidence which was incompetent. During the argument on the motion for a new trial the court offered excuses for the witness’ failure to tell his story at the time of occurrence, and also mentioned the boy’s testimony that word was out in the neighborhood about the defendant. These statements lead us to believe that the magistrate relied at least in part on hearsay evidence.

Because defendant failed to object to the hearsay testimony the State contends these errors cannot be considered on appeal. However, every defendant is entitled to a fair trial, and if on the face of the record it appears that he did not get one, it is the duty of this court to consider that matter, despite the fact that objections were not urged. People v. Moore, 9 Ill2d 224, 137 NE2d 246; People v. Morgan, 20 Ill2d 437, 170 NE 2d 529. Our Criminal Code provides that plain errors may be noticed on appeal although not brought to the attention of the trial court if they affect substantial rights of the defendant. (Ill Rev Stats 1963, c 38, par 121-9(a).) We feel that this case comes well within the realm of this provision and the aforementioned cases.

Defendant also contends that the magistrate assumed the role of an advocate or prosecutor in his questioning of the complaining witness. This interrogation brought out the hearsay evidence discussed above and other testimony of conversations with third persons out of the presence of defendant. The final question by the court of this witness was: “This happened in the City of Chicago in the County of Cook?” Thus the magistrate went so far as to prove up venue for the prosecution. The State’s Attorney then said: “I think that Your Honor has covered everything.” The magistrate then said to defense counsel: “You may cross-examine the witness.” All of the testimony of the complaining witness in support of the allegations against defendant was brought out by the court’s questioning. The magistrate became the prosecutor. He also discarded his robe of impartiality in a discussion in reference to the date of the offense. The complaint provided that the alleged offense took place “on or about April 9, 1965.” In all questioning of witnesses that date was specified. Defendant prepared his defense with that date in mind and presented an alibi covering the time involved. With all evidence directed to April 9th, when the defense counsel at the hearing on the motion for new trial suggested that it was a case of the statement of defendant against that of complaining witness, the court replied: “that is approximately the date; the Complaint takes care of that. It does not have to occur right on that date, it might have been a day before or a day after.” The magistrate clearly did not follow the evidence in this respect.

Again, at this hearing, when the question of the admission of hearsay came up, the court did not deny this but merely made a feeble effort toward justification of his actions by telling counsel he should have objected if he did not approve of the questions. We do not think that when a magistrate becomes the prosecutor it is incumbent upon defendant or his attorney to object in order to urge error in this court. Defense counsel for numerous reasons may have decided it was in his best interest not to antagonize the magistrate, as he had already indicated he was biased in favor of the prosecution.

While the propriety of judicial examination is determined by the circumstances in each case, and rests largely in the discretion of the trial court, the line of propriety is clearly crossed when the judge departs from his function as a judge and assumes the role of prosecutor. People v. Trefonas, 9 Ill2d 92, 136 NE2d 817. McGrath was assuredly prejudiced by the attitude and actions of the magistrate in this case.

Because we feel that the defendant should have a new trial for the reasons expressed above, it is unnecessary to delve into defendant’s contention regarding the weight and corroboration of the evidence against the accused. The judgment of the court will be reversed and remanded.

Reversed and remanded.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois for the Use of John E. Cullerton, Director of Labor of the State of Illinois, Plaintiff-Appellee, v. John N. Crawford, Sr., d/b/a South Parkway Insurance Service, Defendant-Appellant.
    Gen. No. M-51,332.
    First District, Fourth Division.
    March 3, 1967.

      Rufus Sampson and R. E. Spurlark, Jr., of Chicago, for appellant.
    William G. Clark, Attorney General, of Chicago (Richard A. Michael and Philip J. Rock, Assistant Attorneys General, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal from a judgment entered against the defendant in an action for debt (to collect taxes), brought by the plaintiff on a determination and assessment made by the Director of Labor under the provisions of the Unemployment Compensation Act. In this appeal defendant urges various improprieties with regard to the judgment and also argues that the court erred in striking certain of his interrogatories.

In paragraph 1 of its complaint (filed on January 4, 1965) plaintiff alleged that under authority of the Illinois Unemployment Compensation Act certain unemployment compensation contributions, interest and penalties were determined and assessed against the defendant. In paragraph 2 plaintiff alleged that:

Defendant (s) filed with the Director a timely written protest and petition for hearing; a hearing was held; the Director rendered his decision affirming or modifying said determination (s) and assessment (s) ; duly served a copy of said decision and defendant (s) failed to file complaint to review said decision or cause to be issued summons within 35 days from the date of such service as provided under Section 4 of the Administrative Review Act of Illinois (Chapter 110, Paragraph 267, Illinois Revised Statutes 1963) whereupon, the said determination (s) and assessment (s) became final.

Defendant filed a verified answer on August 3, 1965, and neither admitted nor denied the allegations set forth in paragraph 2 of the complaint. In his answer defendant denied that the Act was applicable to him and also alleged that the Act deprived him of his constitutional right to a trial by jury. On November 5, 1965, defendant served interrogatories upon the plaintiff. These interrogatories were directed to the issues as allegedly determined at the hearing and to the allegations set forth in paragraph 2 of plaintiff’s complaint as aforesaid. On November 24 plaintiff filed a motion to strike the interrogatories as irrelevant and immaterial, which was sustained on December 15. On January 7, 1966, plaintiff filed a motion to strike defendant’s answer and for judgment, which was sustained on February 25, 1966. In accordance therewith judgment was entered for the plaintiff.

The provisions of the Unemployment Compensation Act (Ill Rev Stats 1965, c 48, §§ 300-820) relating to administrative investigations, hearings, decisions and collection are constitutional. The principles of law are analogous to those enunciated by the Illinois Supreme Court in Department of Finance v. Cohen, 369 Ill 510, 516-517, 17 NE2d 627, relating to the Retailer’s Occupation Tax Act:

The statute sets forth with great detail the matters which must go into the monthly return, and lays a guide which, when followed, leaves nothing open for arbitrary discretion. The legislature cannot deal with the details of every particular case, and reasonable discretion as to the manner of executing a law must necessarily be given to administrative officers. . . . The sections of the statute complained of do not violate the constitution by investing administrative officers with judicial powers, and the objection that appellant is deprived of property without due process of law has already been ■adversely decided in Reif v. Barrett, supra, [355 Ill 104]. Moreover, . . . the act provides a method of reviewing the action of the department. . . .

In his answer defendant alleges that he was deprived of his right to a trial by jury. It is well settled, however, that a defendant is not entitled to a trial by jury in tax proceedings before an administrative agency. Hoffman v. Department of Finance, 384 Ill 494, 30 NE 2d 34. Nor does the requirement that the defendant must file his complaint for judicial review within 35 days after the decision of the administrative agency violate any of his constitutional rights.

We find that defendant was not deprived of any constitutional right by the Unemployment Compensation Act or by the Administrative Review Act.

In his answer defendant also alleged that the provisions of the Unemployment Compensation Act were not applicable to him. However, since no judicial review was sought the issue was not properly before the trial court. A person seeking judicial review of an administrative decision must act promptly and within the time prescribed by the statute. Pearce Hospital Foundation v. Illinois Public Aid Commission, 15 Ill2d 301, 154 NE 2d 691. Since no review was sought the assessment became final and cannot be attacked on its merits.

No issues were raised for the court’s determination by defendant’s answer. Therefore the court properly allowed the plaintiff’s motion to strike the answer and to enter judgment in plaintiff’s favor.

In his notice of appeal defendant asserts that his interrogatories were improperly stricken by the court. They related either to the merits of the claim or to whether plaintiff complied with the procedural requisites set forth in the Unemployment Compensation Act for assessing a tax claim. Those interrogatories relating to the merits of the claim were properly stricken because the issue was not properly before the court (defendant not having filed for judicial review). Those interrogatories relating to whether there had been compliance with the procedural requisites were properly stricken because no issue had been created by the pleadings. In paragraph 2 of its complaint plaintiff alleged that it had complied with the procedural requisites of the Unemployment Compensation Act, and further alleged that defendant failed to file a complaint to review the determination and assessment within the time allowed by the Administrative Review Act of Illinois (Ill Rev Stats 1965, c 110, § 267). In his verified answer defendant did not deny those allegations nor did he state that he had insufficient knowledge to form a belief. Section 40(2) of the Illinois Civil Practice Act (Ill Rev Stats 1965, c 110, § 40(2)) provides that:

Every allegation, except allegations of damages, not explicitly denied is admitted, unless the party states in his pleading that he has no knowledge thereof sufficient to form a belief, and attaches an affidavit of the truth of the statement of want of knowledge, or unless the party has had no opportunity to deny.

Where the allegations of plaintiff’s complaint are admitted no issue is created by the pleadings.

Defendant urges for the first time on appeal that he was denied equal protection of the law because the judgment in the instant case was entered by a magistrate and the tenure of that office is uncertain. A magistrate is a full judicial officer (Coleman v. Scott, 76 Ill App2d 417, 222 NE2d 5) and actions to collect taxes are properly assignable thereto. Ill Rev Stats 1965, c 37, § 622(a) (6). Furthermore, all objections to the propriety of an assignment to a magistrate are waived unless made before the trial or hearing begins. Ill Rev Stats, 1965, c 37, § 628. Defendant, having failed to interject a timely objection, is foreclosed from urging error at this point.

We find that the rulings of the trial court were proper and therefore the judgment is affirmed.

Affirmed.

ENGLISH, P. J. and McCORMICK, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clark Crable, Defendant-Appellant.
    Gen. No. 51,558.
    First District, Fourth Division.
    March 3, 1967.

      Robert W. Patterson, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Morton Friedman and Allan C. Zuckerman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

After a bench trial in 1962 the defendant, Clark Crable, was convicted of armed robbery and was sentenced to the penitentiary for a term of not less than three nor more than eight years.

Contentions on Appeal

1. Defendant did not understandingly waive his right to a jury trial;

2. Defendant was not proven guilty beyond a reasonable doubt;

3. Appointed defense counsel was incompetent.

Facts and Opinion Relating to the Jury Waiver

Prior to the formal signing of the jury waiver the following colloquy took place in open court among the trial judge, defendant and defense counsel:

Court: All the witnesses in the Crable case, step forward, please.
Is this a bench trial or a jury trial?
Defense Counsel: Judge, I have discussed this
matter with the defendant Clark Crable. He wishes to waive his right to a trial by jury and submit this matter to the Court as a bench trial. Is that right, Clark ? What’s your answer ?
Defendant: Yes. I will take a jury.
Defense Counsel: Take a what? Take a jury?
Court: He wants a jury trial. All right. All Right, we will give him a jury trial.
Defendant: I would—
Defense Counsel: Keep your voice up.
Defendant: I would rather take a bench, your
Honor.
Court: You would rather take a bench trial?
Defendant: Yes.
Court: You have to make the decision now. You understand, Crable, that you are entitled to be tried by a jury?
Defendant: I will take a bench.
Court: If you desire to have a jury trial, you
are entitled to it.
Defendant: I would rather take a bench.
Court: You would rather take a bench trial?
Defendant: Yes.
Court: All right. Have him sign a jury waiver.
Defense Counsel: May the record show he just changed his mind from a jury to a bench trial. I haven’t discussed this matter with you in any shape or form, have I ?
Defendant: No.
Court: You mean you haven’t discussed it — ■
Defense Counsel: Since he just changed his mind.
Court: —when he appeared before the bench here?
Defense Counsel: Yes, that is what I mean.
Court: That was apparent to the Court also.
Defense Counsel: The defendant Clark Crable has signed a jury waiver, your Honor.

There is no specific or defined formula to follow in determining whether a jury waiver is understanding^ made, and the determination must therefore rest upon the facts of each particular case. People v. Wesley, 30 Ill2d 131, 195 NE2d 708. In the instant case there is no allegation that the defendant was illiterate. From a review of the proceedings it is clear that defendant’s response to the trial judge was confused because of the way in which the alternatives were presented to him and not because he didn’t understand his right to a jury trial. The confusion was eventually resolved prior to defendant’s signing of the jury waiver when defendant, in response to the statement of the trial judge informing him of his right to a jury trial, replied that he desired a bench trial. In view of the entire proceedings, we are of the opinion that the record shows that defendant was adequately admonished as to his rights, that he understood that a bench trial was not a trial by jury and that, while represented by counsel, he understandingly waived his right to trial by jury. People v. Benjamin, 34 Ill2d 183,187,215 NE2d 216.

Evidence at Trial

According to the evidence adduced in favor of the prosecution, defendant was identified by two witnesses as the man who robbed a cabdriver. One of the witnesses was the victim, Chester Willis, who testified that: Defendant (wearing sunglasses with a silver rim) entered his cab as a purported passenger at 63rd and Loomis in Chicago, Illinois, on June 22, 1962, at approximately 3:00 a. m.; the dome light inside the cab was turned on; defendant directed Willis to drive to 7304 South Harvard and during the entire trip the front seat light remained lit; at the conclusion of the trip Willis again turned on the dome light to see the fare; defendant grabbed him from behind, held a gun to his head and took his money (a money changer and some bills). Willis further testified that defendant attempted to use the cab as a getaway car but that he (Willis) accidentally dropped the keys to the floor alongside the front seat; that defendant was angered, pushed Willis on his back onto the front seat and pummeled him with blows. At this time Willis was looking up at his assailant. The robber subsequently left the scene of his crime.

Another witness, Noble Davis, testified that his car was stopped in back of Willis’ cab during the commission of the robbery (his testimony is conflicting as to whether he was seven feet or sixty five feet behind the cab); that he saw the robber leave the cab and place a black scarf over his head; and that he pursued the robber in vain.

Defendant was arrested in a vestibule approximately two blocks from the scene of the robbery. According to one of the arresting officers, James Craig, defendant stated that he was sleeping in the vestibule after having been to a party with a girl friend. On his person were a pair of sunglasses and a black scarf (People’s Exhibits 1 and 2, respectively). Defendant had neither a gun nor the money changer on his person. He had some change in his pocket but no bills. After his arrest, defendant was brought to the scene of the crime and, after putting on his sunglasses, was positively identified by Willis. Defendant was subsequently identified as the robber by Davis from a lineup at the police station and was identified at trial by Davis and Willis.

At trial defendant denied committing the robbery and testified that he was sitting in the vestibule with his shoes off because he had a sprained ankle. He denied having the black scarf in his possession at the time of arrest. While he also denied that the sunglasses were those taken from his person at the time of arrest, defendant stated that at the time of his arrest he had sunglasses which were silver.

. No other witnesses were called. After finding defendant guilty the trial judge held a hearing on aggravation and mitigation. The prosecutor at that time informed the court that in 1960 defendant was sent to St. Charles (referring to the Illinois State Training School for Boys, located in St. Charles, Illinois, to which boys may be committed by the Youth Commission after a finding of delinquency by the Family Court). The court was also informed that in 1962 defendant was arrested and charged with criminal damage to property but the charge was dismissed. The judge then stated that the latter charge would not be considered in fixing punishment. However, in fixing the punishment the judge did consider the fact that defendant was sent to St. Charles. In denying the request of defendant’s counsel that the sentence be a minimum of one year and a maximum of eight years in the penitentiary, the judge stated: “No. He has been in trouble before. I want to make sure he is down there a little while anyway.”

Opinion

In a bench trial it is the function of the trial court to determine the credibility of the witnesses and the weight to be afforded their testimony. People v. Clark, 30 Ill2d 216, 195 NE2d 631. The testimony of the cabdriver, Chester Willis, is in and of itself sufficient to prove defendant guilty beyond a reasonable doubt. While defendant was beating him on the front seat, Willis had ample opportunity to view him. Moreover, when defendant entered the cab the dome light was turned on and during the entire trip the light in the front seat of the cab was on. Moreover, the defendant was seen leaving the scene wearing a black scarf and sunglasses. When defendant was arrested shortly thereafter only two blocks from the scene of the robbery he had in his possession a black scarf and sunglasses.

We find that defendant was proven guilty beyond a reasonable doubt.

Defendant also contends that his counsel at trial was incompetent. After a thorough examination of the record we find no merit in that contention.

In accordance with section 1-7 (g) of the Illinois Criminal Code of 1961 (Ill Rev Stats 1961, c 38, § 1-7 (g)) the trial judge considered evidence on aggravation in determining the sentence to be imposed, but in so doing erroneously took into consideration the defendant’s stay at St. Charles. The Family Court Act (Ill Rev Stats 1961, c 23, § 2001) provides that:

A disposition of any child under this Act or any evidence given in such cause, shall not, in any civil, criminal or other cause or proceeding whatever in any court, be lawful or proper evidence against such child for any purpose whatever. . . .

However, this error could have affected only the length of defendant’s sentence and therefore does not constitute reversible error. In appropriate cases this court has the power to reduce sentences. Ill Rev Stats 1965, c 38, § 121-9 (b) (4). At the hearing on mitigation and aggravation defendant’s attorney had suggested a sentence of one to eight years. The sentence is reduced to not less than one year nor more than eight years in the penitentiary.

The judgment of the trial court is amended by reducing the sentence as aforesaid, and as amended is affirmed.

Judgment amended and as amended affirmed.

ENGLISH, P. J. and McCORMICK, J., concur.

       Davis and one of the arresting officers, James Craig, testified that there were five men in the lineup. Defendant alone testified that there were only three men in the lineup, including himself.'


author: MR. JUSTICE BURMAN

text:
    Richard Carlson, Plaintiff-Appellee, v. Margaret Carlson, Defendant-Appellant.
    Gen. No. 51,258.
    First District, First Division.
    January 16, 1967.
    Emilie N. Wanderer, of Chicago, for appellant.

      Sherwin & Sherwin, of Chicago (Theodore R Sherwin, of counsel), for appellee.

       See Callaghan’s Illinois Digest, same topic and section number.

   MR. JUSTICE BURMAN

delivered the opinion of the court.

Defendant, Margaret Carlson, appeals from a supplemental decree, entered after a divorce decree, awarding custody of the three minor children of the parties to the father and from the adequacy of attorney’s fees and from the entry of certain interlocutory orders.

The parties were married on May 21, 1955, with three children being born of this marriage, a girl and two boys who are now nine, ten, and seven, respectively. Margaret Carlson was adjudicated insane and committed to the Kankakee State Hospital on December 19, 1963, and received her absolute discharge therefrom on May 21, 1965. The plaintiff, Richard Carlson, filed a complaint for divorce on May 17, 1965. The defendant answered and filed a cross-complaint for separate maintenance and custody of the children.

On June 23, 1965, the motion judge, Judge Fiedler, on motion of the defendant, entered an order allowing the defendant temporary alimony of $25 weekly, temporary attorney’s fees of $200 and set all other matters for hearing on September 16, 1965. On this latter date the defendant filed a petition that she be allowed to move into the residence of the parties; that she be awarded custody of the children and money for their support; that plaintiff keep current the mortgage payments on the home; that the court appoint Dr. Maltz to conduct a psychiatric examination of defendant and report to the court concerning her fitness, to have custody of the children and that defendant’s attorney’s fees be paid by the plaintiff. The petition was heard before the motion judge on September 29, 1965, at which time Judge Fiedler entered an order denying the request for the appointment of a psychiatrist, the plaintiff having informed the court that there was no present charge of mental incompetency, and the attorneys having agreed that all other matters be referred to the trial judge for an early trial, it was so ordered.

On January 10, 1966, plaintiff petitioned for a psychiatric examination of the defendant, and Judge Hunter ordered both the parties to be examined by Dr. Maltz. Subsequently, on March 1, 1966, defendant was allowed to amend her cross-complaint to an action for divorce on the grounds of desertion and a decree of divorce was granted to her on that day with all other matters being reserved.

On March 4, 1966, the defendant filed a petition, alleging, amongst other things, that she was improperly evicted from her home by her husband after she had obtained her own release from the State Hospital; that there was considerable delay in obtaining a hearing through no fault of hers; that instead of a hearing the motion judge referred the parties to Dr. Burch with a view to a possible reconciliation which failed; that later the trial judge, on motion of the plaintiff, ordered the parties to be examined by Dr. Maltz, despite the representation made by plaintiff to the motion judge that this area would not be considered; that the proposed supplemental decree provides for an investigation to be made by the Cook County Department of Public Welfare and a written report filed with the court which defendant opposes as it deprives her of an opportunity to cross-examine the investigator’s findings and recommendations; that although the proposed decree provides for a review of the matter of custody of the children on July 7, 1966, defendant feels that she is presently and wrongfully denied the custody of her children and prayed that the proposed supplemental decree not be signed and instead an order be made permitting defendant reentry into her home, to have custody of the children and appropriate orders for their support and that her attorney be allowed additional fees.

The same day Judge Hunter entered the Supplemental Decree which recited that both parties were employed and were the owners in joint tenancy of a single-family residence, the mortgage on which was presently delinquent. The plaintiff was found to be a fit and proper person to have the custody of the children with the defendant having fixed visitation rights. The decree directed the Cook County Department of Public Aid to investigate both parties and make a written report to the court concerning all matters related to the custody of the children, the matter of custody to be reviewed by the court on July 7, 1966. The residence was to be sold and the net profits divided equally and $300 in additional fees was to be paid to the defendant’s attorney.

In appealing from this Supplemental Decree, Mrs. Carlson first contends that it was improper for the motion judge not to have decided the occupancy and custody issues presented to him for temporary relief on June 23rd and September 29th. It is argued that the continuation of the “Status Quo” by Judge Fiedler acted as a “springboard” influencing Judge Hunter to enter the Supplemental Decree excluding her from the home and giving custody of the children to the father. Our examination of these orders indicates that the order of June 23rd was entered without objection and the September 29th order assigning the matters to the trial judge for an early hearing was entered by agreement of the parties. It is also apparent to us that Judge Fiedler showed great concern for the welfare of the children and spent a great deal of time on this matter despite his very busy court schedule. We find no merit whatsoever to this contention.

The principal contention of the defendant is that she was entitled to have custody of the children unless there was evidence to show that she was unfit to have custody. It is argued that the lack of a finding in the Supplemental Decree that the mother is unfit makes it error for the Chancellor to award the custody of the children to the father. She states that, “the best interests of children of tender years require their custody to be entrusted to their mother,” citing Nye v. Nye, 411 Ill 408, 105 NE2d 300.

We do not find any authority to support the contention that in Illinois there is an arbitrary rule that unless there is evidence that a mother is unfit, she should have the custody of young children. The Supreme Court, also in Nye, stated that under our divorce statute the court is clothed with large discretion in determining to which parent a child will be given, and then indicated that the primary concern of the courts in cases like this, “. . . is and must be, at all times the best interest of the child.” P 415.

The cases relied on by the defendant to support her contention are distinguishable from the case at bar. The Nye case, Kline v. Kline, 57 Ill App2d 244, 205 NE2d 775, and Arden v. Arden, 25 Ill App2d 181, 166 NE2d 111, each involved a modification of the original decree and a change of custody from a mother to a father. Under the conditions in those cases it would be an abuse of discretion by the chancellor to change custody unless there was a proper determination of unfitness on the mother’s part, or sufficient proof of changed conditions since the original custody order. In the instant case Mrs. Carlson was not previously given custody of the children by court order.

“It is long established law that where both are fit persons, the principals to a divorce proceeding have equal right to custody of their minor children, . . . .” Kline v. Kline, 57 Ill App2d 244, 246, 205 NE2d 775. Under the circumstances of this case the paramount concern of the court is the welfare of the children and during their minority the court retains continuing jurisdiction over their care and custody. It is clearly an applicable rule of law that we may not reverse the Chancellor’s findings unless they are against the manifest weight of the evidence. Schmidt v. Schmidt, 346 Ill App 436, 105 NE2d 117.

It is established that Mrs. Carlson was committed to the Kankakee State Hospital from December of 1963 to May, 1965. During that period of time the father had sole custody of the children. The evidence shows that the children are in good health and are doing well in school. The Supplemental Decree found that the father is a fit and proper person to have custody of the children and the matter was continued for further evidence on the question of custody. The Chancellor in the instant case saw and heard the parties. In our opinion it was within the discretion and power of the Chancellor, under the facts and circumstances of this case, to award the custody of the children to the father.

It is next contended that in this State, in the absence of a stipulation by the parties, the report of the court service cannot be received in evidence. The defendant states that she did not so stipulate and she will not waive her right to cross-examine the witnesses. The mere ordering of a court service investigation does not deprive either party of the right to examine and cross-examine the persons making the ordered investigation. When the further hearing on custody takes place, it will be presumed that only competent evidence will be heard and considered by the court. As to the claim that the ordered fee of $300 was inadequate, we find no objection to it in the order and the record shows no request of the Chancellor for a larger fee nor was evidence offered for that purpose.

For the reasons stated above the Supplemental Decree of the Circuit Court is affirmed.

Judgment affirmed.

MURPHY, P. J. and ADESKO, J., concur.