author: Mr. JUSTICE McNAMARA

text:
    Melvin Mell, Plaintiff-Appellant—(Harold Z. Kaplan, Intervenor Plaintiff-Appellant), v. Goodbody & Co., Defendant-Appellee.
    (No. 56022;
    First District (3rd Division)
    March 8, 1973.

      L. Louis Karton, and Lieb & Rotche, both of Chicago, for appellants.
    Petit, Safeblade, Littlejohn & Glass, of Chicago, (Edward Atlas, of counsel,) for appellee.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

This suit was brought against the defendant, a stock broker, on behalf of the named plaintiffs, stock margin account customers of defendant, and on behalf of a class. It was an action to recover interest and penalty pursuant to the Interest Act (Ill. Rev. Stat. 1967, ch. 74, par. 4), for interest charged in excess of the amount permitted by the Interest Act, as it applies to stock margin accounts with a debit balance of less than $5,000. After considering affidavits filed by defendant, defendant’s answers to plaintiffs’ interrogatories, and argument by counsel, the trial court granted defendant’s motion for summary judgment, and plaintiffs appeal. The affidavits and answers to interrogatories disclose the following facts.

Margin account customers such as plaintiffs are permitted to purchase securities without making payment in full. Such customers pay a certain portion of the purchase price which dining the period in question was set at 80% by Federal regulations. The customers pledge collateral to the broker to secure the remainder. The broker pays the full price for the security and customarily makes a charge to the customer for the loan.

Defendant’s charge for the loan of the unpaid 20% of the purchase price was designated as “interest” on its bills to customers. This amount exceeded 7% per annum between August 12, 1966 and April 19, 1968, and exceeded 8% per annum between April 19, 1968 and the time of the suit on the outstanding balance on margin accounts of less than $10,000.

Defendant is a limited partnership organized under the laws of the State of New York and dealing in the security brokerage business. It is a member of all principal security exchanges. Its principal offices are located in New York, but it has three branch offices in the City of Chicago.

During the period in question defendant made a yearly profit of $85,000 from its one thousand to fifteen hundred Illinois margin account customers. A form agreement was signed by each of these customers establishing the margin account relationship. That agreement provided in part:

“8. This agreement and its enforcement and performance shall inure to the benefit of yourselves, your successors and assigns, shall be binding upon my personal representatives, shall apply to all such accounts now or hereafter open or reopened, shall be governed by the laws of the State of New York, and shall be subject to all applicable Federal and state statutes and regulations thereunder; #

All purchases for margin account customers of securities on the New York and American exchanges were made in New York, as were most purchases of over-the-counter securities. Principal responsibility for the supervision of margin accounts was in the New York office; central books and records regarding such accounts also were located in New York. Defendant borrowed money from six Illinois banks, but principal borrowings to cover margin accounts were made in New York. Margin customers’ collateral was also kept in New York. Monthly customer statements, although verified in Illinois, were mailed directly from New York.

Defendant had both Illinois and Chicago broker’s licenses, and, contrary to its written agreement with customers, received payments in Illinois on its margin accounts.

At the time in question, the Illinois Interest Act (Ill. Rev. Stat. 1967, ch. 74, par. 4), provided in part:

“In all written contracts it shall be lawful for the parties to stipulate or agree that 7% per annum, or any less sum of interest, shall be taken and paid upon every $100 of money loaned or in any manner due and owing from any person to any other person or corporation in the state, and after that rate for a greater or less sum, or for a longer or shorter time, except as herein provided.”

The Act went on to exempt certain transactions from the interest limitations. And in 1969 the Act was amended, explicitly exempting from its application interest charged upon margin accounts; however, this subsequent amendment was not in effect during the instant period.

Defendant’s motion for summary judgment was based upon five separate and independent grounds: (1) that the transactions were governed by the laws of the State of New York, under which they clearly were not usurious; (2) that even if Illinois law did govern, the transactions were essentially a lending credit and, therefore, not within the purview of the Illinois Interest Act; (3) that even if the Illinois Interest Act did govern, the transactions were business loans, and, therefore, not usurious; (4) that the right to recover for usury could not be the subject of a class action; and (5) that plaintiff’s complaint failed to state a cause of action upon which relief could be granted.

The trial judge found for defendant on all five grounds and allowed its motion for summary judgment. We believe that the transactions in question were governed by the laws of the State of New York, and that the court correctly awarded summary judgment on that basis. We therefore find it unnecessary to consider the other independent grounds for the allowance of judgment.

The securities involved in the instant transactions came within tire purview of the Illinois Uniform Commercial Code. (Ill. Rev. Stat. 1967, ch. 26, par. 8 — 102(1) (a).) Article I, section 105(1) of the Illinois Code, entitled “Territorial Application of the Act; Parties’ Power to Choose Applicable Law,” provides:

“(1) Except as provided hereafter in this Section, when a transaction bears a reasonable relation to this State and also to another state or nation the parties may agree that the law either of this State or of such other state or nation shall govern their rights and duties. Failing such agreement this Act applies to transactions bearing an appropriate relation to this State.

The Code Comment following this Section defines the test for a “reasonable relationship” to a State as “a significant enough portion of the making or performance of the contract is to occur or occurs [there].”

Long before the adoption of the Code, these conflict of laws principles had been recognized in Illinois. In McAllister v. Smith, 17 Ill. 328, our Supreme Court stated at p. 334:

“But the parties may substitute the laws of another place or country, than that where the contract is entered into, both, in relation to the legality and the extent of tire original obligation, and in relation to the respective rights of the parties, for a breach or violation of its terms.”

And in Reighley v. Continental Illinois Nat. Bank and Trust Co., 390 Ill. 242, 61 N.E.2d 29, the court, at p. 249, observed:

“* * * it is permissible for the parties to agree, subject to certain limitation, that the construction of a contract and the validity of the same may be governed and controlled by a law agreed upon between the parties.”

In the instant case the brokerage arrangements between the parties bore a “reasonable relationship” to the State of New York, and a “significant enough portion” of the performance occurred there that the choice of law provision in the brokerage agreements was valid and should be given effect. Defendant’s primary place of business is in New York; it is there that the major portion of the securities under the contracts were purchased and sold on the major exchanges. Plaintiffs’ collateral was kept in New York; defendant’s central records of all its margin accounts were kept in New York; bills on margin accounts were made in New York; and it was in New York that defendant made its principal borrowings to cover its margin accounts. All of this is not to say that there were not also very substantial relationships with Illinois in these brokerage agreements. Yet the numerous and significant contacts with New York clearly satisfy tire “reasonable relationship” test applicable in this choice of law situation.

Plaintiffs, however, contend that giving effect to New York law and particularly to the New York usury statute, which permits an interest rate higher than that allowed in Illinois, would violate Illinois public policy.

It is a well recognized principle in conflict of laws that states will give effect to a foreign law only where such is “not dangerous, inconvenient, immoral, nor contrary to the public policy of the local government.” (McAllister v. Smith, 17 Ill. 328.) In that case, after noting the above public policy exception, the court, at pp. 334-335, stated:

“Any rate per cent sanctioned by the laws of the place where tire contract is made, or by the substituted laws of the place where it is to be performed, or paid, will be recognized and enforced in the courts of other governments, whose laws would make such rate usurious.”

And in Mumford v. Canty, 50 Ill. 370, the court stated at p. 375:

“* * * a contract entered into in another State, and in conformity to their laws, may be enforced, and the rate of interest collected under the contract, according to the laws of that State, although it may be larger than the rate allowed by our laws.”

Additionally, the Code Comment following Article I, section 1 — 105(1) of the Illinois Uniform Commercial Code makes reference to the United States Supreme Court case of Seeman v. Philadelphia Warehouse Co., 274 U.S. 403, as a useful guideline. In that case, the court permitted reference to the law of another State allowing a higher rate of interest than the forum State, and, quoting Wharton’s Conflict of Laws, stated at p. 408:

“Assuming that their real, bona fide intention was to fix the situs of the contract at a certain place which has a natural and vital connection with the transaction, the fact that they were actuated in doing so by an intention to obtain a higher rate of interest than is allowable by the situs of some other elements of the transaction does not prevent the application of the law allowing the higher rate.”

We therefore hold that the application of New York’s usury laws in the instant case would not be violative of Illinois public policy, and that the trial court properly found that the transactions in question were governed by the laws of the State of New York. The court correctly granted summary judgment.

For the reasons stated, the judgment of the circuit court is affirmed.

Judgment affirmed.

DEMPSEY, P. J., and McGLOON, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE McGLOON

license: Public Domain

text:
    Lawrence Greer, Plaintiff-Appellant, v. Checker Taxi Company, Inc., et al., Defendants-Appellees.
    (No. 56399;
    First District (3rd Division)
    March 8, 1973.

      Joseph L. Dombrowski, of Chicago, for appellant.
    Julius Jesmer and Ronald Jay Gold, both of Jesmer and Harris, of Chicago, for appellees.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

This is an appeal brought by the plaintiff from the denial of his motion to vacate an order granting summary judgment in favor of the defendant. The plaintiff argues that the trial court erred in denying his motion to vacate the judgment, because the record disclosed a genuine issue of fact thereby making the award of summary judgment improper. Ill. Rev. Stat. 1969, ch. 110, par. 57(3).

We reverse and remand.

The pertinent facts are as follows: On December 24, 1968, the plaintiff was a fare-paying passenger in a cab owned by the defendant, Checker Taxi Company, Inc., when the cab collided with a truck owned by a second defendant, Transport Motors, Inc., operated by their agent, defendant Jonas Montvilas. In August, 1970, the plaintiff filed suit against Checker Taxi Company, Inc., Jessie Putman, its agent, Transport Motors, Inc., and its agent, Jonas Montvilas, for injuries sustained by him as a result of the collision. In September the defendant, Checker Taxi Company, Inc., filed its answer.

On November 30, 1970, the deposition of the plaintiff was taken, and on the basis of certain excerpts from the deposition defendant Checker, on February 11, 1971, filed a motion for summary judgment. (Ill. Rev. Stat. 1969, ch. 110, par. 57.) The parts of the deposition presented to the trial court included the plaintiffs description of how the collision occurred. Plaintiff testified that the truck struck the cab as both vehicles were in the process of making a right turn in adjoining lanes of traffic. He further testified that no portion of the cab had gone into the lane of traffic occupied by the truck but that the truck had crossed into the lane occupied by the cab, so that the truck “had to hit the cab.” In its supporting affidavit the defendant alleged that the plaintiffs testimony absolved it from any liability and there existed no genuine issue of fact, therefore making summary judgment the proper remedy.

The motion was continued until March 24, 1971, for the purpose of allowing the plaintiff to produce a counter-affidavit in opposition to the motion. On that day, no counter-affiadvit having been filed, summary judgment in favor of the defendant was granted.

On April 23, 1971, the plaintiff filed a motion to vacate the summary judgment. In the supporting affidavit to this motion the plaintiffs attorney stated that the testimony of defendant Montvilas was not available due to continued postponement of his deposition, but that there was reason to believe that this defendant’s testimony, when taken, would contradict the testimony of the plaintiff thereby creating an issue of fact.

The plaintiff s motion was continued until May 13, 1971, at which time the plaintiff filed an affidavit which contained excerpts from the deposition of defendant Montvilas, which was taken on May 4. The testimony of defendant Montvilas contradicted the testimony of the plaintiff in many essential details. Montvilas testified that he was the driver of the truck that was involved in the collision that injured the plaintiff. He stated that while making a right turn in adjoining lanes of traffic, the driver of the cab had cut him off and that he had not crossed into the lane occupied by the cab. The affidavit also contained a police accident report which corresponded closely to those details of Montvilas’s testimony that contradicted the plaintiffs version of the accident. After a hearing the motion to vacate the summary judgment was denied, and an order was entered thereupon.

In this appeal the plaintiff argues that it was error for the trial court to deny his motion to vacate the summary judgment, because the record disclosed a material issue of fact due to the contradictory testimony of the plaintiff and the defendant Montvilas.

The defendant argues in support of tire award of summary judgment that in determining whether a trial court committed error in granting summary judgment, the record is viewed as of the time the trial court acted on the motion. Applying this principle of law to the instant case, the defendant concludes that on March 24,' 1971, when the trial court awarded the summary judgment, the record disclosed no genuine issue of fact, and) therefore, the order was not error. Whether this is a correct statement of the law need not detain us, since the issue on appeal is not whether the original award of summary judgment was proper, but whether the trial court committed error in denying the plaintiff’s motion to vacate the summary judgment.

The importance of distinguishing these issues is apparent when considering a case such as the instant one in which there appeared to be no triable issue of fact until the deposition of the defendant Montvilas was made part of the record. In the instant case, the plaintiff is not contesting the original award of summary judgment or the sufficiency of the affidavit upon which it was based, but he is alleging error based upon the trial court’s refusal to vacate the judgment after he was able to procure and submit to the court testimony that established a triable issue of fact.

Summary judgment should be granted if upon examination of the record it can be fairly said that no triable issue of fact exists. (Goodwin v. G. W. Bowers Co. (1960), 24 Ill.App.2d 158, 164 N.E.2d 278; Ray v. City of Chicago (1960), 19 Ill.2d 593, 169 N.E.2d 73.) Further, an affidavit in support of a motion for summary judgment will be strictly construed and should leave no question as to the movant’s right to judgment, whereas the opposing party’s affidavit deserves a liberal construction. Kern v. Chicago & E. I. R.R. Co. (1963), 44 Ill.App.2d 468, 195 N.E. 2d 197.

A review of the record in the instant case in light of these holdings indicates that the attorney for the plaintiff placed the trial court in a difficult position by not promptly filing counter-affidavits or a motion disclosing valid reason why an extension of time was needed in order to complete a counter-affidavit. The trial court was justified in awarding summary judgment to the defendant on the record as it existed on March 24, 1971. However, after the plaintiff submitted his affidavit, the record disclosed an issue of fact, and the summary judgment should have been vacated.

The instant case is similar to Des Plaines Motor Sales, Inc. v. Whetzal (1965), 58 Ill.App.2d 143, 206 N.E.2d 806. In that case summary judgment was awarded to the plaintiff before the defendant filed a counter-affidavit. Later the defendant filed a motion to vacate accompanied by an affidavit that contained statements that contradicted the statements contained in the affidavit filed by plaintiff. The trial court allowed defendant to file his affidavit but denied his motion to vacate. In its opinion reversing the denial of the motion, this court stated that since the trial court allowed the movant to file a counter-affidavit and presumably weighed it in conjunction with the pleadings and the opposing affidavit, there was no reason why it should not do the same. We are of the same opinion in the case now before us.

While it is highly commendable to dispose of causes with celerity and dispatch, it is more important that justice be done. (Hirz v. Lee (1963), 41 Ill.App.2d 145, 190 N.E.2d 607.) In the instant case there is no indication that the plaintiff was attempting to delay the progress of this case by not promptly filing the counter-affidavit that created material issues of fact.

Judgment reversed and remanded.

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


author: Mr. PRESIDING JUSTICE DEMPSEY

text:
    Frederick Chusid & Company, Plaintiff-Appellee, v. Collins Tuttle and Company, Inc. et al., Defendants-Appellants.
    (No. 56430;
    First District (3rd Division)
    March 8, 1973.

      Arthur W. Friedman and Donald K. Basta, both of Schwartz & Freeman, of Chicago, for appeHee.
    Robert P. Cole and Richard S. Kuhlman, both of Chicago, for appellants.
   Mr. PRESIDING JUSTICE DEMPSEY

deKvered the opinion of the court:

This is an interlocutory appeal by the defendants, CoHins Tuttle and Company, Kearney-National, Inc., and American National Bank & Trust Co., from an order granting a temporary injunction to the plaintiff, Frederick Chusid & Co. The injunction restrained the defendants from interfering with Chusid’s possession of office space which it had leased from Kearney-National. The defendants were also restrained from interfering with a sublease between Chusid and PuUman Incorporated covering part of the premises.

The American National Bank is the trustee of an office building located at 200 South Michigan Avenue, Chicago. The entire 13th floor was leased to Kearney-National, Inc. In August 1963 Kearney sublet a portion of the floor to Frederick Chusid & Co. for a term of years ending in 1978. The Chusid sublease was amended from time to time to increase the size of the premises and the rent. Subsequently, Chusid sublet part of its space to Pullman Incorporated.

On June 15, 1971, Kearney entered into an agreement with Coffins Tuttle and Company, the managing agent for the trustee, to terminate Kearney’s lease as of July 1, 1971. The agreement purported to convey to the managing agent, * * aH rights or privileges under any subleases * * * including the right to cancel any of such subleases.” On July 12, 1971, Chusid was informed by CoHins Tuttle that the Kearney lease had been terminated and was told that pursuant to the terms of its sublease with Kearney, its tenancy also was terminated. Chusid was requested to vacate the premises on or before August 31, 1971.

On July 21, 1971, Pullman notified Chusid that it had been informed, by Collins Tuttle of the cancellation of Chusid’s lease and that it had been directed to pay no more rent under its sublease with Chusid. Thereafter, Pullman refused to make further rental payments to Chusid despite notice that Chusid considered its rights under the sublease with Pullman as remaining in force.

Chusid informed Collins Tuttle, Kearney and the trustee that it did not accept the termination of its sublease, and that it still considered its rights over the premises to be in full force and effect. Chusid received written invoices from Collins Tuttle for the August 1971 rent, which Chusid paid. However, the payment was returned marked “unacceptable.”

Chusid then filed a complaint for a temporary injunction to restrain the defendants from interfering with its rights to the premises and from taking any action to recover possession of them. The complaint stated that Chusid’s business was conducting consultations with respect to executive assessment, development and career advancement. It maintains 20 offices nationwide, with a regional office located on the premises sublet from Kearney-National. This sublease was a particularly valuable asset because, in order to maintain the continuity of its business and preserve its reputation for stability, dependability and reliability, it was essential to lease its office space for a long duration — 15 years — in a well located, high prestige, downtown office building. Advertising commitments stating its current address as well as appointments with executives had to be made months in advance, and for it to be compelled suddenly to move its offices to another location would inflict irreparable harm upon it. Chusid claimed that the termination of its sublease through the mutual surrender of the base lease by the defendants was in derogation of its rights under its sublease and, therefore, its sublease remained in effect.

The defendants’ answer cited paragraph 20 of the sublease which states, “* * * if Landlord’s lease with its Lessor should be terminated in whole or in part for any reason whatsoever, this lease or the part of the premises affected by such termination shall automatically be terminated.” The defendants contended in the trial court and argue in this court that the cancellation agreement between Kearney and Collins Tuttle effectively extinguished Chusid’s rights in the premises; they emphasize that the sublease provided for this result in the event the base lease was terminated “for any reason whatsoever.”

Chusid responds that paragraph 20 must not be considered in a vacuum, but must be construed in relation to the other provisions of the sublease as well as those of the base lease. Although specific provisions are set forth in both leases regarding the right to terminate, no mention is made of the possibility of entry into a cancellation agreement by the principal lessor and lessee so as to deprive a sublessee, in full compliance with the terms of its lease, of its right to possession. To permit such a result, Chusid asserts, would make a sublessee merely a tenant at will, the length of the term being subject to the decision of the original lessor and lessee, who could cancel a sublease at any time merely by concluding a termination agreement with respect to the base lease; hence, the 15-year term specified in the sublease upon which it relied as essential to the needs of its business, would have little significance.

In presenting these arguments the parties are placing before this court the main issue raised by their pleadings: whether the Chusid sublease continued in effect despite the cancellation of the base lease by Kearney and Collins Tuttle. This issue was not, with finality, decided by the trial court and we will not decide it here. The complaint and answer raised a debatable issue of law, and the trial court merely determined that the position of the parties should be held in status quo until the issue could be adjudicated. This is the purpose of a temporary injunction. It is not the purpose of a temporary injunction to determine controverted rights or to decide the merits of the case. Schultz v. Agenlian (1967), 90 Ill.App.2d 131, 234 N.E.2d 345.

The only proper question before us is whether the court correctly exercised its discretion in granting the injunction. Unless it is determined that the court abused the broad discretionary power with which it is vested, its order will not be set aside. (Roth v. Daley (1970), 119 Ill.App.2d 462, 256 N.E.2d 166; Seay & Thomas, Inc. v. Kerrs Inc. (1965), 58 Ill.App.2d 391, 208 N.E.2d 22.) A temporary injunction is granted prior to a decision on the merits of a case to prevent a threatened wrong or the further perpetration of an injury. An applicant for an injunction need not make out a case which wül entitle it at aH events to the ultimate relief it seeks. It is sufficient if the applicant raises a fair question as to the existence of the right claimed, leads the court to believe that it will be entitled to the relief prayed for if its proof and the applicable law should sustain its aHegations, and makes it appear advisable that the position of the parties should remain the same until the court has the opportunity to consider the case on its merits. (H. K. H. Development Corp. v. Metropolitan Sanitary Dist. (1964), 47 Ill.App.2d 46, 196 N.E.2d 494.) The pleadings in this case made out such a case.

The trial court did not err in granting the temporary injunction. By its terms Chusid was guaranteed undisturbed possession of the premises but it was ordered to pay Collins Tuttle the rent due under its sublease with Kearney. Pullman was commanded to pay to Chusid the rent required under its sublease with Chusid. All rental payments were to be made without prejudice to any party. The terms of the injunction were fair and it will remain in force.

The same result would have been reached if we had faulted the defendants-appellants for not observing the rules of appellate procedure. When an appellant fails to file either an abstract of the record or excerpts from the record, the reviewing court may dismiss the appeal. Davis v. Davis (1970), 128 Ill.App.2d 427, 262 N.E.2d 788; Denenberg v. Prudence Mutual Casualty Co. (1970), 120 Ill.App.2d 68, 256 N.E.2d 71.

The order of the Circuit Court is affirmed.

Affirmed.

McNAMARA and McGLOON, JJ., concur.


author: Mr. PRESIDING JUSTICE DEMPSEY.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eddie Smith, Defendant-Appellant.
    (No. 56729;
    First District (3rd Division)
    March 8, 1973.
    James J. Doherty, Public Defender, of Chicago, (Ronald P. Katz, Assistant Public Defender, of counsel,) for appellant.
    No appearance for the People.
   Opinion by

Mr. PRESIDING JUSTICE DEMPSEY.


author: Mr. JUSTICE STOUDER

text:
    The City of Monmouth, Petitioner, v. The Environmental Protection Agency et al., Respondents.
    (No. 72-86;
    Third District
    March 28, 1973.

      Rehearing denied April 24, 1973.

      Bufford W. Hottle, Jr., of Monmouth, and Kenneth R. Shorts, of Waukegan, both for appellant.
    William J. Scott, Attorney General, of Springfield, (Prescott Bloom, Assistant Attorney General, of counsel,) for appellees.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

On this appeal the City of Monmouth seeks review of an order of the Pollution Control Board which order levied a fine against the City of Monmouth in the amount of $2,000 and required the City to cease and desist from other conduct relating to odors. This is a direct review of the Board’s action as provided by the Environmental Protection Act (Sec. 1001, et seq., ch. 111%, Ill. Rev. Stat.), and comes to us pursuant to the Administrative Review Act. Ill. Rev. Stat, sec. 264, et seq., ch. 110.

The Pollution Control Board, pursuant to complaint instituted by the Environmental Protection Agency, found the City of Monmouth guilty of air pollution in conjunction with operation of a three-cell sewage lagoon system. The first cell was an anaerobic lagoon approximately 275 feet by 275 feet square and 15 feet deep. There were two other lagoons each of slightly less than 40 acres. These lagoons were constructed by the City of Monmouth pursuant to an agreement entered into between the City of Monmouth and Agar Packing Company on March 4, 1964. A construction permit was granted , by the Sanitary Water Board of the State of Illinois on July 31, 1964 for construction of the sanitary lagoons and they were put into operation upon the completion of the construction of the packing plant facility.

All construction was done pursuant to the plans submitted to the Sanitary Water Board. After construction, the City became aware that an odor problem existed, consulted with the Sanitary Water Board regarding the operation of the lagoon and received a number of suggestions from the Sanitary Water Board regarding methods of eliminating the odor problem. The suggestions included recirculation facilities, the addition of paunch manure to create a grease cap or seal on the lagoon and the elimination of all possible blood waste from the lagoon.

The City of Monmouth installed first two and then two more pumps in an effort to aeriate the first stage of the lagoon by inducing more oxygen in the lagoon and further entered into a contract for the introduction of enzymes to combat the odor problem.

Numerous witnesses, mostly residents of the area, testified on behalf of the Agency that a strong smell like that of rotten eggs came from the area surrounding the first lagoon. It also appeared that the hydrogen sulfide fumes causing the strong smell also caused discloration of paint on houses situated in the general area.

The order of the Board found generally that there were noxious odors emitted from the lagoon system, the City of Monmouth as the operator of the lagoon, permitted the emission of such noxious odors and that therefore the Environmental Control Act was violated. The City was fined $2,000 and was ordered to cease and desist from permitting the emission of such noxious odors within six months from the date of the order.

On this appeal both the petitioner and respondent have devoted the major portions of their briefs to a discussion of the question of the constitutionality of certain provisions of the Environmental Control Act. In particular the petitioner has argued there has been an unconstitutional delegation of legislative and judicial powers to an administrative agency in violation of the separation of powers required by the Illinois constitution. Furthermore petitioner has argued the power of the administrative agency to assess a penalty deprives petitioner of property without due process of law.

At the time the briefs were filed in this case the constitutional question raised by the parties had not then been passed upon by any Illinois court of review. Since then this court in C. M. Ford v. Environmental Protection Agency, 9 Ill.App.3d 711, 292 N.E.2d 540, has considered such issues and resolved them in favor of the constitutionality of the Act and the authority to assess a penalty. In this regard the briefs of the parties present no reasons for considering the question anew and accordingly on the authority of the Ford case we conclude that petitioner’s constitutional argument is without merit.

Appellant also argues the action of the Board was invalid because no standards relating to air pollution had been promulgated by the Board as provided by Ill. Rev. Stat. 1970, ch. 111%, pars. 1009 & 1010. Additionally the City of Monmouth insists that the order of the Board is not supported by the evidence.

Section 1009 (a) provides:

“No person shall:
(a) Cause or threaten or allow the discharge or emission of any contaminant into the environment in any State so as to cause or tend to cause air pollution in Illinois, either alone or in combination with contaminants from other sources, or so as to violate regulations or standards adopted by the Board under this Act; * #

Section 1010 indicates but does not limit the areas in which the Board may prescribe standards and regulations respecting certain conduct and nature or sources of pollutants.

It is conceded by the Board that no standards or regulations have been adopted establishing hydrogen sulfide levels or regulating the operation of open lagoon facilities such as the one involved in this case. However as the appellee points out, Section 1009 describe alternative violations and a violation may occur where contaminants tend to cause pollution (as defined in 1003 (b)) even though no standards have been proposed. Neither Section 1009(a) or 1010 mandate the establishment of specific standards in terms measurable by appropriate instrumentation but on the contrary the Board is permitted to do so. Where such standards are so established it might well be that the violation of the standard itself would be prima facie evidence of unreasonable air pollution. In this connection it should be observed that Section 1033(c) describes the criteria to be considered in determining the reasonableness of a contaminant such criteria being applicable to the orders and determinations of the Board described in Sections 1033(a) and 1033(b) of the Act. When these Sections are considered together namely, 1003(b), 1009(a) and 1033(a) (b) and (c), we believe that sufficient standards are described delineating both the proscribed conduct and the scope of the Board’s authority in administration of the Act.

This brings us to the question of whether the evidence supports the findings of the Board and whether its findings support its order. These questions are related as we shall see and it is our conclusion that the order of the Board is erroneous on both counts.

Tire statute (Ill. Rev. Stat. 1970, ch. 111%, par. 1033(c)), provides,

“(c) In making its orders and determinations, the Board shall take into consideration all the facts and circumstances bearing upon the reasonableness of the emissions, discharges or deposits involved including, but not limited to:
(1) the character and degree of injury to, or interference with the protection of the health, general welfare and physical property of the people;
(2) the social and economic value of the pollution source;
(3) the suitability or unsuitability of the pollution source to the area in which it is located, including the question of priority of location in the area involved; and
(4) the technical practicability and economic reasonableness of reducing or eliminating the emissions, discharges or deposits resulting from such pollution source.”

So far as the evidence is concerned, the Agency presented the testimony of a number of witnesses supporting its position that hydrogen sulfide gas was emitted from the first cell of the lagoon system and that the same substantially affected people and property in the area. However from the criteria established in 1033(c) it appears that the reasonableness of the emission depends not merely on the establishment of some injury to person or property as specified in 1033(c) (1) but the degree and significance of such conduct must be related to the other factors specified in 1033(c) where issues have been raised regarding such other factors. Of particular concern to us is the failure of the Agency to provide any evidence regarding technological practicability as required by 1033(c) (4) even though this was an issue before the Board and even though the Board made a finding with regard thereto such finding being wholly outside the record and unsupported by any evidence. There was some evidence presented by the appellant regarding the possibility of alleviating the problem by covering the lagoon with a plastic cover, collecting the gas and then incinerating the same. The reasonableness of such a proposal does not appear to have been considered to any significant degree by the Board and as revealed by its findings the Board’s conclusions can be at best regarded as inconsistent.

In its finding regarding technical problems the Board observed,

“In a variance request by Texaco, Inc. in Salem, Illinois we considered a situation in which 3,000 pounds per day of H2S was being emitted into the atmosphere. Control down to 6.5 pounds per day was effected by a system which oxidized the H2S to elemental sulfur by exposure to dissolved air in the presence of a nickel chloride catalyst.”

The above finding was wholly unsupported by any evidence presented and indeed there is no claim made that it is inferable from the evidence. It seems elementary that the Board’s decision must be based on the evidence before it and not on the evidence presented in some other case. This practice was condemned in North Shore Sanitary Dist. v. Pollution Control Board, 2 Ill.App.3d 797, 277 N.E.2d 754, and what was said in that case is equally applicable to this case.

Not only is the finding not based on any evidence in the case but it is also apparent that the procedures which may have been involved with the Texaco Company are substantially dissimilar from the problem presented in this case and hence we conclude the Board’s reliance on such fact does not support its order. Where the H2S originated so far as the Texaco Company is concerned is not indicated but reduction of H2S to elemental sulphur does not involve an analogous process. That such process was irrelevant to the order of the Board even though it seems to have been the basis of its technological considerations, is demonstrated by the further finding of the Board when it stated,

“In controlling the H2S odor problem in this case by incineration Monmouth must consider if they are creating an objectionable S02 problem. From the state of the record we cannot ascertain the precise volume of H2S generated per day. In any event, it seems safe to assume that the quantity will not be so large as to preclude the consideration of incineration to control the odor nuisance. Beyond that, on the instant facts it would appear to be an attractive trade-off if Monmouth can substitute an S02 problem for the present H2S problem. We should add for the benefit of future parties before the Board that apart from the testimony of the strength and character of the odor as perceived by the senses it would not only be helpful but necessary in some cases to have an estimate of the quantity of the pollutant which is generated on the record.”

In other words the proposal to incinerate the gas collected under the plastic cover intended only a conversion to S02 or sulfur dioxide, a substantially more noxious product then elemental sulfur. Indeed this finding not only fails to indicate the reasonable feasibility of the proposed change but in no uncertain terms reveals that the Board has been presented insufficient evidence to support any conclusions on the technological practicability of what it considers to be the basis of its order.

From the foregoing it is our conclusion that there are material findings of the Board unsupported by evidence and that the findings themselves demonstrate vagueness, inconsistencies and ambiguities insufficient to justify the resolution of the problem embodied by the Board in its order.

For the foregoing reasons the order of the Pollution Control Board is vacated and the cause is remanded to such Board for further proceedings.

Judgment vacated and remanded.

ALLOY, P. J., and DIXON, J., concur.


author: Mr. JUSTICE SEIDENFELD

text:
      In re Union Drainage District No. 1 of Towns of Afton and Milan, Petitioner-Appellant, v. Special Drainage District of Towns of Malta, Milan, Afton and De Kalb, and Union Drainage District No. 1 of Towns of Shabbona and Milan, Respondents-Appellees.
    (No. 71-374;
    Second District
    April 2, 1973.

      Francis E. Cash and Roger W. Hayes, both of De Kalb, for appellant.
    Rissman, Jenkins & Klein, of De Kalb, for appellees.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Petitioner, Union Drainage District No. 1 of the Towns of Afton and Milan (referred to as the “Afton-Milan district”), appeals from a judgment entered on a jury verdict finding that projected clean-out work on the ditches of its district would be of “O” benefit to respondents (Malta, Milan, Afton and De Kalb Special Drainage Districts referred to as the “Malta district”; and Union Drainage District No. 1 of the Towns of Shabbona and Milan, De Kalb County referred to as the “Shabbona district”).

Petitioner contends that the evidence has made a case under Section 11 — 2 of the Drainage Code (Ill. Rev. Stat. 1971, ch. 42, par. 11 — 2) for imposing liability on the respondent districts to bear a just proportion of the cost of the work to be performed. In its view, the jury verdict of “O” benefits to respondents was against the manifest weight of the evidence and resulted from prejudicial trial errors. More specifically it contends that the evidence at most showed that certain parts of respondent districts have a greater elevation than parts of petitioner district, and that this did not constitute a defense to the action.

The Commissioners of the Afton-Milan district filed their petition, accompanied by an engineer’s estimate of the cost of the projected clean-out work, on January 13, 1971. None of the projected work is in the respondent districts. The work involves the clean-out of the main AftonMilan ditch north of and downstream from Perry Road for a distance of about 5.93 miles. Of the total projected cost of $50,325.91, $4,398.90 was assessed against the Malta district, and $9,610.06 was assessed against the Shabbona district.

All three districts involved in this proceeding are located in the same watershed, and all of the water from the respondent districts’ ditches empties into and through the Afton-Milan ditch. Direction of water flow is generally northerly.

The main ditch of the Afton-Milan district has its southern terminus about 60 rods north of an east-west road called McGirr Road. From this southern terminus, the Afton-Milan main ditch runs generally northeasterly for about 7.6 miles, at which point it crosses into the De Kalb Township “Outlet Area.” The ditch has an average fall of about 2.3 feet per mile.

Respondent, Shabbona district, lies generally southwesterly from the Afton-Milan district. From its southern terminus, its ditch runs northeasterly for about 5.18 miles to a point about 60 rods north of McGirr Road, where it discharges its drainage waters in a straight line into the Afton-Milan district main ditch. The district itself has its northern boundary at McGirr Road, which lies some 2 miles south of the southern boundary of the proposed work (Perry Road). The fall of the Shabbona district ditch averages about 6 feet per mile.

Respondent, Malta district, lies westerly and northwesterly from the Afton-Milan main ditch. Its ditch consists of two main branches; the North Branch runs for approximately 2.6 miles to a junction with the West Branch, which begins in Milan Township and runs easterly for 3.07 miles until the junction. Together the combined ditches run easterly for % of a mile, where the drainage waters are discharged in a straight line into the Afton-Milan main ditch. The North Branch, to its juncture with the West Branch, has a fall of approximately 5 to 6 feet per mile. The West Branch, to the juncture with the North Branch and thence to the outlet into the Afton-Milan main ditch, has an average fall of 9 feet per mile. There is 2% feet of fall over the % of a mile that the branches run together, and a 1 foot drop at the outlet of the Malta ditch into the Afton-Milan ditch. From the outlet, going northerly downstream in the Afton-Milan district for approximately 2 miles, there is a fall of about 1 foot per mile.

The Afton-Milan district ditches were totally cleaned in 1948-1949, and in 1965 the portion south of Perry Road to the end of its ditch, 60 rods north of McGirr Road, was cleaned. The Shabbona district had clean-out work done on its main ditch in 1969. The work stretched north from its southern boundary to include not only the 60 rods north of McGirr Road, but 100 rods past into the Afton-Milan district, which 100 rods had been cleaned out in 1965. Prior to 1969, the Shabbona district had done no clean-out work since its inception in 1906. The Malta district was last cleaned out in 1954.

The respondents countered the prima facie case made out by the introduction of the petitioner’s assessment role in evidence (Ill. Rev. Stat. 1971, ch. 42, par. 5 — 10) with the testimony of six landowners and two engineers. In substance the owners in the Shabbona district testified that the ditch in that district remained in good condition after the 1969 clean-up, and no crop damage had occurred since that date. One of the owners, whose land is on the southern boundary of the district, stated that poor drainage had caused him crop damage and some unworkable land prior to the clean-up, but that he had no such problems since 1969.

The landowners in the Malta district stated that both branches of the district’s ditch were in good condition, with the North Branch having very little silt and a few willows of small growth, and the West Branch having no undergrowth or willows, a clear bottom, and smooth sides. The water was running well where the North and West Branches met, and the outlet at the Afton-Milan district was clear and open, with the water running at a “fast clip”. The water was about 1 foot deep at the outlet, and 6 inches deep in other places. The land next to the ditch was in good condition, none of the lands in the district were water damaged, and all land was under cultivation. One of the owners, whose farm is about % of a mile from the Afton-Milan district, stated that the water in the ditch through his farm has gotten as high as Vz to % of the way up the 12 foot bank during wet periods, but receded to a foot within 24 hours when it stopped raining. He said the year before trial was the wettest year he could remember and he had no crop damage.

Francis E. Sexton, a Consulting Engineer Land Surveyor, testified on direct examination that he examined both of the respondent districts shortly before trial and found their ditches in very good condition. The Shabbona ditch had straight sides, uniform banks, and possibly a little sloughing near the bottom. The tile outlets were in good condition, and there were no willows or extra growth in the ditch. The Malta ditches were relatively straight and smooth, the outlets were in good condition, and there was a minimum of buildup of grass or turf. He found no silting where the ditches met the Afton-Milan ditch. He said the 6 foot per mile fall in the Shabbona district was slightly above average, which would be 4 or 5 feet per mile. Similarly, the Malta district fall of 6 to 9 feet per mile was above average. Conversely, he termed the AftonMilan district, with a fall of about 2.3 feet per mile, a flat outlet. He said that due to these differences, the proposed work would have no effect on the velocity or capacity of the respondent districts’ ditches to handle all of the water in those areas. Since the ditch at McGirr Road, the north boundary of the Shabbona district, is 9 feet higher than at Perry Road 2 miles away, which is the southern boundary of the proposed work, Sexton said that water could not back up from Perry Road to McGirr Road unless there were a 9 foot high blockage in the ditch at Perry Road. It was his opinion that due to differences in elevation, the respondent districts would not be benefited by the proposed work.

On cross-examination, Sexton said factors affecting the flow of water are the shape of the ditch, the obstructions in the ditch, the grade or fall at the bottom of the ditch, the alignment of the ditch, and the volume of water. He said that his statement that it would take 9 feet of water at Perry Road to impede the flow in the Shabbona district presumed a static condition, but that the present situation deals with a flowing rather than a static condition. He admitted that progressively over a number of years, the buildup could have some effect on the respondent districts.

Carter Sarver, a Civil Engineer, testified that he examined the Malta district ditches, and found the 6 foot per mile fall of the North Branch and 9 foot per mile fall of the West Branch would cause the water to have sufficient velocity to prevent silt from depositing in the ditches. He said it would take considerable time before the condition of petitioner district, with its lower elevation, would have any effect on the flow in the Malta district.

In rebuttal, petitioner called a landowner in the Afton-Milan district who testified that in the previous fall and spring, which had been very wet, the water went over the banks at some points in the petitioner district. He did not observe water overflow in any other locality. However, a landowner in the Malta district testified that the water in his ditch had been slowed considerably in the last 3 or 4 years and that he had suffered crop damage due to the backup of water. He said he had seen the water 9 or 10 feet high in the ditch near his property but had never seen it overflow its 12 foot banks. He thought that the Malta district was not in good condition and needed cleaning.

Stanley W. Knetsch, a Consulting and Civil Engineer, testified on direct examination that his firm performed the work on the petitioner district in 1965 and on the Shabbona district in 1969, and prepared the plans and assessment roll for the presently projected work. His examination of petitioner district north of Perry Road revealed silt deposits in various places and at various depths ranging from a few inches to 14 or 15 inches. Some of the heaviest deposits were in the outlet area. He found both brush and trees in various stages of growth, and erosion of the banks of the ditch. He said that both of the respondent districts would be benefited by the proposed work in that if the work were not done, the impeded flow in the petitioner district, into which the respondent districts flow, would progressively impede the flow of the entire system and cause deterioration in the respondent’s ditches. While the deterioration in the first few years, when the systems are in good condition, would not be marked, the rate of deterioration would accelerate at an increasing rate over a period of time. It would take a longer period for the Shabbona district to deteriorate than the Malta district, due to Shabbona’s recent clean-out, and the 1965 clean-out of petitioner district adjacent to the Shabbona district. However, with a long enough progression of time, the results would be the same.

On cross-examination, Knetsch said that the silting at the south end of the petitioner district is minor compared to that at the north end of the district. He said that the Shabbona district is in good condition as a result of the 1969 work. He termed the 30 foot total fall in the Shabbona district a fair fall, which will accomplish drainage, and said that compared to the Shabbona fall, the fall of petitioner district is very flat. He said that the Malta district will clear itself for a short period, but as the silt builds up over a period of years, the deterioration will work its way upstream. He said that this would probably take about 20 to 30 years, but that the increase in the carrying capacity of the petitioner’s ditch will immediately benefit the respondents by insuring maximum velocity of flow in their ditches.

In order to be assessed for a drainage project, lands must be rendered more productive, more accessible, or the market value substantially increased and their actual or intrinsic value enhanced. (People v. Allen (1928), 330 Ill. 433, 443.) In absence of proof that the land would be benefited for agricultural purposes, the mere fact that the flow of water has or will be accelerated is not sufficient benefit to justify an assessment. (Sangamon Drain. Dist. v. Houston (1918), 284 Ill. 406, 408; Inlet Swamp Drain. Dist. v. Gehant (1919), 286 Ill. 558, 560-561.) The fact that lands are in the same watershed is not the deciding factor in cases of this kind. Drainage Dist. v. Drainage Dist. (1947), 398 Ill. 174, 188.

We have concluded that the respondents presented sufficient evidence to sustain their burden to show that they would receive no benefits from the projected work and that therefore they were incorrectly assessed.

It is undisputed that the ditch of the Shabbona district has been in good condition since the 1969 clean-out work and that no lands in that district have been flooded or crops damaged since that time. Except for the testimony of one of petitioner’s witnesses all of the witnesses stated that the ditches in the Malta district are also in good condition and that there has been no crop damage there. The proposed work has its southern boundary at a point which is some 2 miles north of and 9 feet below the Shabbona district’s northern boundary. This 2 mile stretch between the two districts was cleaned out in 1969. The fall of both of the respondent districts is somewhat above average and considerably greater than that in the petitioner district. It appears that the only immediate effect that the proposed work might have would be to insure the maximum velocity flow in the ditches of the respondent districts. However, it was disputed whether, due to differences in elevation and above average rate of fall, the work would even have an effect on the velocity of flow in the respondent districts. To the extent that the evidence is conflicting the verdict of the jury and the judgment of the trial court will not be interfered with unless clearly and palpably against the weight of the evidence. (Inlet Swamp Drainage Dist. v. Gehant (1919), 286 Ill. 558, 561.) The jury’s finding of “O” benefits was not against the manifest weight of the evidence.

Petitioner has placed considerable reliance upon Drainage Comrs. v. Drainage Comrs. (1940), 373 Ill. 347, 351-2 in support of its contention that creating a faster flow would tend to lessen the deposit of silt in all ditches. In that case, the tributary ditch emptied into the other ditch at right angles, and the land in both districts had comparatively similar slopes. In addition, there was testimony that before the work was done, the flow from one district into the other had been retarded. The court’s conclusion that the finding of benefits was not against the manifest weight of the evidence was in accordance with the evidence in the case of a retarded flow but is not applicable under the facts before us.

We do not agree with petitioner’s contention that the respondents’ expert witnesses were not qualified to testify in a case involving multiple district drainage. Both of these men had degrees in Civil Engineering, and both had experience with drainage structures and ditches. The fact that neither ever worked on a multiple district project has little effect on testimony as to fall and elevation; the crossing of district lines would not change the analysis of the issue. Nor do we believe that Sexton’s testimony on direct examination as to the effect of an obstruction in static water conditions, while the situation here was not static, could have had any lasting misleading effect on the jury, since the true conditions were brought out on cross-examination.

Petitioner’s contention that the court erred in admitting a map, which allegedly misrepresented the slopes of the district to the jury by reason of its inadequate scale, requires comment. The scales used on the map were in excess of 2,000 feet to 1 inch horizontal, and 5 feet to 1 inch vertical. While it is not necessary that a map be absolutely mathematically correct, it must be such as to enable the jury to apply the testimony more intelligently. (Dept. of Public Works & Bldgs. v. Chicago Title & Trust Co. (1951), 408 Ill. 41, 51-52, U.S. cert. den., 341 U.S. 931; Brown v. Galesburg Pressed Brick Co. (1890), 132 Ill. 648, 653.) Doubtless, .the exhibit taken by itself overemphasizes the slopes involved. (See Hunter v. Sanitary Dist. of Chicago (1912), 179 Ill.App. 172, 175.) But, in the context of tire full testimony in the record and the overwhelming evidence that no benefit would be received by the respondent districts, we conclude that the error was harmless.

The judgment below is affirmed.

Affirmed.

T. MORAN and GUILD, JJ., concur.

       "Whenever any work constructed or ordered to be constructed by any drainage district has benefited or will benefit lands outside of that district but within the boundaries of another district * * *, the other district * * ° is liable to the district conferring such benefits for the just proportion of the cost of such work and of the cost of the enlargement, improvement, maintenance, repair and operation thereof based upon the relation which the benefits to the lands in the other district * * * bear to the entire benefits from such work.”


author: Mr. PRESIDING JUSTICE GUILD

text:
    Richard P. Blazer, Plaintiff-Appellant, v. Rexie L. Barrett, Defendant-Appellee.
    (No. 71-380;
    Second District
    April 4, 1973.
    William Elman, of Elman & Ehardt, of Harvard, for appellant.
    Caldwell, Berner & Caldwell, of Woodstock, for appellee.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

Plaintiff appeals from an order denying Count II of his Amended Complaint for personal injuries.

The plaintiff was allegedly struck by the semi-truck of the defendant shortly after midnight as he was walking south on the west side of highway 14 in Walworth County, Wisconsin, approximately 1300 feet north of the Illinois State line. A large west coast type rear vision mirror was found on the ground at the scene of the accident two feet off of the west side of highway 14. The defendant was arrested by Wisconsin police officials near Bigfoot, Wisconsin, for “hit and run” one-half hour after the accident. He stated he lived in Harvard, Illinois, and was going to “Hebron, Wisconsin.” At the time of his arrest the west coast rear-vision mirror on the left side of his truck was missing. The same type of mirror was attached to the right side of his truck. He subsequently pleaded guilty to the charge of “hit and run” in Wisconsin and paid a fine of $100 and costs.

The plaintiff filed his complaint for damages in Illinois, relying upon the Wisconsin doctrine of comparative negligence. The original complaint was stricken and subsequently the plaintiff filed an amended complaint with two counts. The first count followed the Illinois law alleging freedom from contributory negligence. He re-alleged the original complaint in Count II pleading a complaint sufficient at law in the State of Wisconsin, which did not allege freedom from fault. Defendant again renewed his motion to dismiss Count II. A counter motion was filed by the plaintiff asking for reconsideration of the earlier ruling. An order was entered by the trial judge denying plaintiff’s motion and granting defendant’s motion to dismiss Count II of the Amended Complaint. From this order the plaintiff appeals.

The sole issue presented to this court is whether the law of Wisconsin or the law of Illinois applies to the factual situation herein. It appears that both parties admit that the occurrence was in Wisconsin, and all parties have at all times been Illinois residents. Both plaintiff and defendant came from Illinois that evening. The suit brought in the Illinois court, for personal injuries sustained in Wisconsin by the plaintiff, seeks to have the Wisconsin law on comparative negligence applied.

In Ingersoll v. Klein (1969), 106 Ill.App.2d 330, 245 N.E.2d 288, this court considered a similar factual situation. This was an action for wrongful death, all of the parties resided in Illinois, and the death occurred on the Iowa side of the Mississippi river. The trial court held that the law of Illinois applied. The Appellate Court of this district adopted the “most significant contacts” rule and held at page 292:

“Illinois, as both the forum state and the domicile of potential beneficiaries, has a more significant interest in the recovery of damages for wrongful death than does Iowa, whose only interest arises from the fortuitous occurrence of the accident in that state.”

The Supreme Court affirmed Ingersoll (1970), 46 Ill.2d 42, 262 N.E.2d 593, 596, and stated at page 48:

“The only basis for applying the Iowa statutes is that the State of Iowa is the alleged situs of the decedent’s death. Under the doctrine of lex loci delicti the situs of death would be the only consideration in the selection of the applicable law. The arbitrary nature of the doctrine is quite evident in this case where determination of the applicable law is based upon what spot in the Mississippi River the decedent met his death. Realization of unjust and anomalous results which may ensue from an application of lex loci delicti leads us to believe that a most significant contacts’ rule best serves the interests of the State and the parties involved in a multi-State tort action. The record in this case clearly establishes that Illinois has the most significant contact with the action.”

The Supreme Court in Ingersoll considered the growing dissatisfaction with the application of the doctrine of lex loci delicti and as indicated applied the most significant contacts rule. In recent years it would appear that both in Illinois and in other states, the most significant contacts rule has emerged as the better doctrine for occurrences such as we find here.

Plaintiff urges that Ingersoll is not controlling as it should not be applied retrospectively. In support of this contention he states that the instant complaint was filed on December 17, 1969, and the Supreme Court opinion was pubfished in May of 1970. The basic concept in not applying retrospectively any judicial doctrines is that the party or parties have relied upon the existing legal precedent or concept. That is not the situation before us.

Our opinion was rendered on February 25, 1969 which was prior to the occurrence herein. As indicated above, in that opinion we held that the most significant contacts rule applied to a factual situation such as the one herein. It can scarcely be said then that the defendant relied upon prior existing precedent when that decision had been rendered some ten months prior to the accident which is the subject matter of the instant suit.

The plaintiff urges as a basis for applying the lex loci delicti rule that the witnesses are in Wisconsin. On the other hand, the plaintiff was taken to two Illinois hospitals and treated by at least one Illinois doctor. Under the circumstances of this case where we have an Illinois resident suing another Illinois resident in an Illinois court we see no reason why we should depart from the doctrine adopted by this court in Ingersoll and subsequently approved by the Supreme Court of this State. It is true the Supreme Court stated in Ingersoll that the doctrine of lex loci delicti should be applied where hardship would result. The only benefit the plaintiff would have, if the comparative negligence doctrine of Wisconsin were applied, would be that the degree of proof would not require that he show freedom from contributory negligence. That is not, in this court’s opinion, the hardship referred to by the Supreme Court in Ingersoll which would require the application of the doctrine of lex loci delicti.

The judgment of the trial court in dismissing Count II of the Amended Complaint is affirmed.

Affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: Mr. JUSTICE THOMAS J. MORAN

text:
    Home Investments Fund, Plaintiff-Appellant, v. Renee Robertson et al., Individually and d/b/a Liberty Realty et al., Defendants-Appellees. Ray K. Rogers, Individually and d/b/a Liberty Realty et al., Defendants and Counterpiaintiffs-Appellees, v. Home Investments Fund, Plaintiff and Counterdefendant-Appellee—(Renee Robertson et al., Counterdefendants.)
    (No. 71-352;
    Second District
    April 5, 1973.

      Allen A. Schuh, of Holleb, Gerstein, Glass & Glicken, of Chicago, for appellant.
    Goldsmith, Dyer, Thelin & Schiller, of Aurora, for appellees.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Home Investments Fund (hereinafter referred to as defendant) appeals from an adverse judgment in a slander of title action brought by Ray K. Rogers and Aurora National Bank (hereinafter referred to as plaintiff) in which the court awarded plaintiff damages of $6000.

The issues presented for review are whether plaintiff’s evidence supported findings of malice and special damages, elements necessary to a slander of title action.

Rogers was the sole beneficiary of a land trust holding title to certain Aurora property. On August 6, 1968, under an installment contract, he sold the property to the MacLachlans. In December, the MacLachlans assigned their interest in the contract to the Robertsons who then went into possession of the premises. Plaintiff, whose consent was necessary, refused to accept the assignment.

Defendant is a not-for-profit corporation which provides services to minority families to assist them in purchasing homes. On July 31, 1969, in exchange for a $6000 loan from the defendant, the Robertsons executed an installment note together with a trust deed. (The attorney who represented both the Robertsons and the MacLachlans, acted as defendant’s agent for receipt of the $6000 draft.) The deed purported to convey to a trustee, as security for payment of the note given defendant, title to property actually owned by plaintiff. On August 5, the MacLachlans again assigned their contract interest to the Robertsons and, in return, the Robertsons, through their mutual attorney, gave the MacLachlans the proceeds of the $6000 loan.

During this same period, plaintiff was informed of the second assignment and of the $6000 payment by the Robertsons. Through other counsel, the Robertsons, on October 2, 1969, entered into an agreement to purchase plaintiffs property on contract. Seven days later, defendant had the trust deed recorded. It is undisputed that plaintiff had no knowledge of defendant’s involvement in the transaction and first became aware of the existence or filing of the instrument about May 11, 1970.

The Robertsons were constantly in default under the contract. Mr. Robertson died in January of 1970. Mrs. Robertson vacated the premises sometime in June of that year and could not thereafter be located.

Defendant brought suit for declaration of a constructive trust for the amount of the loan advanced to the Robertsons. Plaintiff counterclaimed to quiet title and for slander of title. All issues were found against defendant, but this appeal is taken only from the decision in the slander of title action.

Slander or disparagement of title is established where there has been a false and malicious publication, either oral or written, of words disparaging a person’s title to property which results in special damages. (See, Van Tuyl v. Riner, 3 Ill.App. 556, 558-559 (1878); I.L.P., Slander 6 Libel, sec. 3; Restatement of Torts, sec. 624 (1938).) In the present case, defendant concedes the falsity of the trust deed because title was not in the Robertsons, and further concedes that recording the mortgage constituted publication. Defendant contends, however, that plaintiff failed to establish the remaining elements of malice and special damage.

The showing of malice is part of plaintiff’s prima facie case in a slander of title action. Although no Illinois case discusses the issue, it is clear from other jurisdictions that actual malice need not be shown; implied malice is sufficient. (Rogers Carl Corp. v. Moran, 103 N.J. Super. 163, 246 A.2d 750, 753 (1968); Contra Costa County Title Co. v. Waloff, 7 Cal. Rptr. 358, 362 (1960); Olsen v. Kidman, 235 P.2d 510 (S.Ct. Utah, 1951).) It has been said that malice merely means a lack of legal justification and is to be presumed if the disparagement is false, if it caused damage, and if it is not privileged. Gates v. Utsey, 177 So.2d 486, 488 (App. Ct. Fla., 1965.)

Under the facts of the instant case, malice can be implied in that (a) plaintiff proved the falsity of the recorded trust deed by showing that at all times he was the owner of the premises, (b) defendant offered no evidence to show the deed to be privileged, and, (c) plaintiff incurred certain special damages which will be subsequently discussed.

Defendant argues that he has a bona fide claim of good title, and relies on Allison v. Berry, 316 Ill.App. 261, 272 (1942). There it is stated that, “If he [defendant] only had reasonable grounds to believe he had an equity or legal title in the lands, assertion of his claim could not be slander of title.” The segment of defendant’s brief devoted to this argument is totally unsupported by the record. Defendant states that, by Robertson’s false representations during the process of obtaining title, defendant was led to believe it had a claim, but there is absolutely no evidence of any discussions between the Robertsons and defendant. Defendant’s brief also states that it had “no actual knowledge of the improperly recorded trust deed” until after the death of Mr. Robertson. It is difficult to understand how defendant can make such a statement when the evidence, and another paragraph of defendant’s own brief, clearly indicate that defendant was responsible for that recording. Further, Robertsons’ attorney (who acted as defendant’s agent in delivering the loan proceeds and who was present when other documents were executed by the Robertsons) was well aware that they had no interest in plaintiff’s property except for a possibility of a contract purchase. No interpretation of the record would justify a finding that defendant had grounds to reasonably believe it possessed a valid claim against plaintiff’s property.

Defendant also contends that plaintiff failed to prove special damages, asserting that the losses shown were attributable, not to any slander of title by defendant, but rather, to other circumstances including the default of the Robertsons under the installment sales contract.

The order of the trial court found that the acts of defendant diminished the value of plaintiff’s property, interfered with its sale, and caused defendant costs and attorneys’ fees, all to plaintiff’s special damage in the amount of $6000. The order does not indicate the method by which the amount of judgment was determined but it would seem that the sum included consideration for items for which plaintiff was not entitled to recover.

Plaintiff’s evidence showed damages for interest lost on the contract of sale, payment of real estate taxes and insurance, expenses of repair and maintenance after Mrs. Robertson left the premises, and the total attorneys' fees incurred in the course of litigation against defendant. Except for certain of the attorneys’ fees, these expenditures were attributable to the default of the Robertsons or to other obligations of plaintiff, and were not connnected with the recording of the mortgage; they therefore should not have been compensable.

While the Illinois rule has been frequently stated that a party may not recover for the ordinary expenses and burdens of litigation (House of Vision, Inc. v. Hiyane, 42 Ill.2d 45, 51-52 (1989); Ritter v. Ritter, 381 Ill. 549, 553 (1943)), we note that malicious prosecution actions allow attorney’s fees and costs incurred as a result of a defendant’s malicious act, i.e., bringing the original prosecution. (See, Krug v. Ward, 77 Ill. 603, 609 (1875); Thieme v. MacArthur, 285 Ill.App. 242, 253-254 (1936); Farris v. Messimore, 219 Ill.App. 582, 587 (1920).) Slander of title actions similarly involve the element of malice and we believe recovery should be permitted for only those costs and attorney’s fees which directly flow from the wrongful disparagement. See, Glass v. Gulf Oil Corp., 12 Cal.App.3d 412, 96 Cal. Rptr. 902, 918-920 (1970); Contra Costa County Title Co. v. Waloff, supra, 363-364.

In the present case we hold that plaintiff was entitled to recover those costs and attorneys’ fees directly related to the quieting of his title and to those damages directly related to a slander of his title, i.e., loss of vendibility, etc.

For the reasons stated, that portion of the judgment finding defendant guilty of slander of title will be affirmed. That portion of the judgment assessing damages will be vacated. The case is remanded with directions to take evidence on the proper elements of damage in accordance with the views expressed herein and for entry of judgment thereon.

Judgment affirmed in part; vacated in part and remanded with directions.

SEIDENFELD and ABRAHAMSON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James B. Farnsworth, Defendant-Appellant.
    (No. 72-153;
    Second District
    April 5, 1973.

      Richard L. Cooper, of Geneva, for appellant.
    William R. Ketcham, State’s Attorney, of Elgin, (W. Ben Morgan, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Defendant appeals from an order denying his post-conviction petition after an evidentiary hearing.

On October 1, 1968, defendant was indicted for the crimes of attempt murder and attempt armed robbery. On January 13, 1989, he pled guilty to the charge of attempt murder and was sentenced to serve 10 to 20 years in the penitentiary. The charge of attempt armed robbery was dismissed.

It being the contention of the defendant that the court failed to ascertain that he understood the nature of the offense charged, our consideration will be directed to the sole question of whether the trial court, under the circumstances of this case, erred in accepting the plea of guilty.

At the time the plea was accepted, Rule 401(b) (Ill. Rev. Stat. 1967, ch. 110A, sec. 401(b)) was in effect requiring that, before accepting a plea of guilty, a trial judge should first determine that the defendant understood the nature of the charge. The record herein reveals that the defendant was informed that he was pleading guilty to the crime of attempt murder. Ordinarily, this would have apprised him of the nature of the charge. People v. Trenter, 3 Ill.App.3d 889, 891 (1972); People v. McGrady, 131 Ill.App.2d 836, 840 (1971); People v. Carter, 107 Ill.App.2d 474, 477 (1969).

Count I of the indictment, under which the defendant entered his plea, charged attempt murder and was drawn in the language of Sections 8 — 4(a) and 9 — 1(a) of the Criminal Code (Ill. Rev. Stat. 1967, ch. 38, secs. 8 — 4(a), 9 — 1(a)). All of the sub-paragraphs of Section 9 — 1(a) were alleged in the disjunctive, the relevant part stating that the defendant shot one Rodholm “while he [defendant] was attempting or committing a forcible felony other than voluntary manslaughter, to wit: armed robbery”. See, Section 9 — 1(a)(3).

During the hearing on the plea, the defendant persisted in declaring to the court that he was not pleading guilty to those portions pertinent to Sections 9 — 1(a)(1) or (a)(2), but only to that portion which charged him under (a)(3), commonly referred to as the “felony-murder” doctrine. He ultimately explained his specificity by saying, “I didn’t intend to kill anyone, but I did shoot him with intent to commit the robbery.”

For reversal, the defendant cites People v. Davis, 6 Ill.App.3d 622 (1972). There it was held that attempt murder must be predicated upon a specific intent to kill and that a conviction on such charge cannot be sustained under the “felony-murder” doctrine unless such intent is proved. See also, People v. Palmer, 31 Ill.2d 58 (1964); People v. Coolidge, 26 Ill.2d 533 (1963).

Under Section 9 — 1(a)(3), the “felony-murder” doctrine, specific intent is not a requisite to being found guilty of murder, yet under Section 8 — 4(a), attempt, specific intent is required for attempt murder. Thus, strict application of the statutes leads to the necessary but illogical conclusion that if, in the course of a forcible felony, the victim is shot and dies, the perpetrator may be found guilty of murder, but if, as in the instant case, the victim lives, attempt murder cannot be sustained without the allegation and proof of specific intent.

The case before us is not one in which a defendant admits all of the necessary elements of an offense but claims affirmative matters by way of defense. Rather, defendant here specifically informed the court that he was not guilty of one of the essential elements to the charge— intent to kill. The contradiction between his plea and his statement was sufficient to have placed the court on notice that defendant did not understand the nature of the charge. Not having resolved this conflict, the court should have refused the plea.

The judgment of conviction is reversed and the case is remanded with directions to allow the defendant to withdraw his plea of guilty and plead anew.

Reversed and remanded with directions.

SEIDENFELD, P. J., and ABRAHAMSON, J., concur.


author: Mr. JUSTICE SCOTT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Raymond King, Defendant-Appellant.
    (No. 72-88;
    Third District
    March 22, 1973.

      Louis E. Olivero, of Peru, for appellant.
    J. Randolph Comba, State’s Attorney, of Princeton, for the People.
   Mr. JUSTICE SCOTT

delivered the opinion to the court:

The defendant Raymond King was on April 28, 1971, indicted for the crimes of burglary and theft. He subsequently entered a plea of guilty to the charges contained in the indictment. Thereafter he was granted probation for a period of 18 months, the first six months of which he was to be incarcerated in the Rureau County jail. The other conditions of the defendant’s probation were the mandatory ones imposed by statute which included the prohibition that he should “not violate any laws of the State of Illinois or any ordinance of any city or village therein during said probation.” However, during his term of probation the state’s attorney of Bureau County filed a motion to revoke probation on the grounds that he had committed the crime of burglary. After hearing it was the determination of the trial court that the State had proven by a preponderance of the evidence that the defendant had violated probation by having committed such crime and an order was entered revoking probation and sentencing the defendant to a term of not less than 1 nor more than 3 years in the penitentiary. This appeal stems from this order of revocation and the sentencing of the defendant.

A number of issues have been presented for review and we first direct our attention to the question as to what quantum of proof is required by the State in a probation revocation proceeding where the probationer has been charged with the commission of a criminal offense.

The defendant contends that the State must prove by the “most convincing” proof the allegations of the motion to revoke probation, and that such requisite establishes a greater standard than that required by the “preponderance of the evidence rule.” To support his contention the defendant relies on the case of People v. Dwyer, 57 Ill.App.2d 343, 206 N.E.2d 113.

Our supreme court dealt with this precise question in the case of People v. Crowell, No. 44844, and concluded that the defendant’s argument was without merit. In support of this conclusion the supreme court in Crowell stated:

“Since this court has never before ruled on the precise question of what the quantum of proof should be in a probation revocation proceeding, and in the absence of statutory provision therefor (Ill. Rev. Stat. 1971, ch. 38, par. 117 — 1 et seq.), we hold that a violation of the conditions of probation must be proved by a preponderance of the evidence.
We note, moreover, that the General Assembly has specifically incorporated this standard in the new Illinois Code of Corrections (Ill. Rev. Stat. 1971, ch. 38, par. 1005 — 6—4(c); P. A. 77 — 2097), effective January 1, 1973.”

This pronouncement of the supreme court is dispositive of this contention of the defendant and we therefore likewise hold it to be without merit.

The defendant raises a number of issues for review, one of which is that the evidence failed to establish any connection between the defendant and the crime charged.

The following facts were adduced at the hearing to revoke the defendant’s probation. James Virgil Kasbeer testified that he was the owner of a restaurant known as Skip’s ICasbar located in Hollowayville, Bureau County, on Route Number 6. Kasbeer and his family, consisting of his wife Enita, his son Michael, and his brother-in-law Lyle Curley, resided in the back portion of the restaurant building.

The record further discloses that on the evening of March 3, 1972, James and Enita Kasbeer closed the restaurant at approximately 10:00 o’clock P.M. and sometime thereafter they left the building for the purpose of visiting a Don Polly. The son Michael and Lyle Curley remained in the residence portion of the restaurant. Sometime between 12:00 to 12:30 o’clock A.M. Michael noticed from his bedroom window that someone was knocking at the back door. The knocking continued for 10 to 15 minutes, then stopped for approximately 5 minutes and the door was opened and a man walked into the building. Michael recognized this man, who was dressed in a plaid jacket, as Raymond Platt. A second man waited outside the door but Michael did not get a good look at him and could only describe him as being about five feet, eight inches in height, heavy, and that he wore a dark coat which was similar to a military jacket.

When Lyle Curley yelled the two intruders ran away and disappeared in the darkness. Momentarily after they disappeared a loud noise from a car was heard but when Michael, who attempted to pursue them, looked down the highway he failed to see anyone or any vehicle.

A deputy sheriff was notified of this burglary and he proceeded to Skip’s Kasbar where he talked to Lyle Curley, Michael Kasbeer and James Kasbeer, who had returned to his place of business. The deputy then proceeded on Route 6 for approximately an eighth of a mile until he came to a gravel road which he turned on to and after traveling a short distance he saw car tracks in the snow and could tell from the tracks that an automobile had been backed into some bushes. The deputy also found footprints of two individuals which led in two different directions. A picture was taken of tire tire tracks which indicated that they were made by new tires and that the tires were of an unusual width, being 6Yz inches wide. The investigating officer also discovered broken twigs in the area where the automobile had been parked.

At approximately 1:15 A.M. on March 4, 1972, an Officer Smoode of the Spring Valley Police Department saw the defendant as he was driving a red Dodge convertible in the city. Spring Valley is about 6 or 7 miles from HoIIowayville. The officer stopped the defendant because he had only one tail light and his muffler was slightly loud. At this time Kevin Platt was sitting in the front seat with the defendant. The defendant at this time had long blond hair, was stockily built and was wearing a green corduroy jacket. The defendant fixed the faulty tail light and was permitted to go on his way. Prior to permitting the defendant to depart the officer had radioed the sheriff’s office that he had stopped two subjects who fit the description of the men wanted in the Skip’s Kasbar burglary, but when he received no response he authorized their departure. However, shortly thereafter Officer Smoode was requested by the sheriff’s office to take the men into custody. The officer complied with this request and the defendant after again being stopped was taken to the Spring Valley City Hall and later to the Bureau County jail. Prior to being confined in jail the defendant denied any complicity in the Skip’s Kasbar incident. His automobile was photographed and examined. The examination disclosed that the vehicle had no back window, that snow had entered through this opening into the vehicle and that two small sticks were on the back seat.

When the defendant was taken into custody a third party was also present in his vehicle, an individual called “Peanuts”, who was determined by the police to be a hitchhiker and who was picked up by the defendant. The testimony of Officer Smoode was that he had seen the individual referred to as “Peanuts” hitchhiking between 1:00 A.M. and 1:15 A.M. on the morning of March 4, 1972. Having determined that this individual was in fact a hitchhiker he was released.

The defendant testified in his own behalf and stated that from 8:00 P.M. on the evening of March 3, 1972, until he was taken into custody he drove to La Salle where he visited with a police officer Lucas, then met a friend John Malik, that he made several other stops and finally went to the Tiki Restaurant at route 51 and interstate 80 where he met Kevin Platt at about 12:30 A.M. on March 4, 1972. From the Tiki Restaurant he testified that he drove to Peru, then to Spring Valley where they picked up the hitchhiker and that shortly thereafter he was taken into custody.

The record in this case discloses that the witnesses are at variance in regard to the exact time the various incidents we have set forth actually occurred. In examining their testimony we can only conclude that they all took place in the late hours of March 3 and early hours of March 4, 1972.

Directing our attention as to whether or not the defendant was proven to be connected with the crime of burglary which resulted in the revocation of his probation, we first recognize the rule that a finding that probation has been violated will not be disturbed merely because there is a conflict in the evidence. The trial judge who heard the evidence was in a better position to weigh the testimony of witnesses than is a reviewing court, and we will substitute our judgment for that of the trial court only when judgment is contrary to the manifest weight of the evidence and not where the evidence is merely conflicting. People v. Guido, 25 Ill.2d 204, 184 N.E.2d 854.

A close examination of the evidence adduced in the instant case raises the serious question as to whether the state ever connected the defendant to the crime with which he was charged. We fail to find that the state made this proof by the “preponderance of the evidence” rule. There was never any direct and at the most only tenuous circumstantial evidence produced which served to link the defendant to the burglary of Skip’s Kasbar. The testimony of Michael Kasbeer and Lyle Curley was that they could not identify the defendant as being one of the two men present who were participating in the burglary. Michael Kasbeer, who knew the defendant, saw the second unidentified individual on the night in question yet could not identify him then nor could he state while looking at the defendant in open court that he was a participant in the burglary. The unidentified participant was described as wearing a dark military type of jacket, yet when the defendant was taken into custody a short time after the burglary he was wearing a green corduroy jacket. Where the conviction of defendant rests on identification which is doubtful, vague and uncertain, and which does not produce an abiding conviction of guilt it will be reversed. (People v. Gardner, 35 Ill.2d 564, 221 N.E.2d 232.) Even under the lesser standard of the “preponderance of the evidence” rule the identification of the defendant in the instant case is indeed doubtful, vague and uncertain.

The State attempted to prove the defendant’s participation in the Skip’s Kasbar burglary by circumstantial evidence. This was done when an effort was made to link the defendant to the crime by footprints and tire tracks found in the snow on a gravel road near Skip’s Kasbar. There was a total failure to relate the footprints to the defendant and the only evidence as to the tire prints was that they were unusually wide and such as would be produced by tires that were on the defendant’s automobile. However, a State witness, being a law enforcement officer, on cross examination testified, “I have seen many Good Year or Firestone tires of this width in the area around Spring Valley and Princeton. Tires of this width are sold to the public at large.” Not only was there a failure to make a connection of the scene of the crime with the gravel road where the tire prints were found, but in addition the the prints were never matched with the tires on the defendant’s automobile by any vulcanizing pattern, defect, cut or other irregularity. The only evidence was that the tires on the defendant’s car and tire prints found in the snow were approximately the same size. Such evidence is far too tenuous to permit a finding that the defendant’s automobile was ever on the gravel road which is located near- the scene of the crime.

Two small twigs or sticks were found on the rear seat of the defendant’s automobile. No tests whatsoever were conducted by the State in order to relate these twigs to trees and bushes located by the side of the gravel road. No evidence was produced as to specie or any other identifying features that would permit one to conclude that they might have come from the bushes adjacent to the road and certainly there was no evidence to the effect that they did come from such bushes. These items of physical evidence have no probative value. They totally fail to place the defendant at or near the scene of the crime. Physical evidence in a criminal proceedings is admissible provided there is evidence to connect the objects found with the defendant and with the crime. (People v. Miller, 40 Ill.2d 154, 238 N.E.2d 407.) The physical evidence in the instant case, being twigs found in the defendant’s automobile, totally fails to serve this purpose.

The most damaging evidence to the defendant was that when arrested he was in the company of Kevin Platt, who was identified as one of the burglars of Skip’s Kasbar. When arrested it was more than an hour after the crime and some six or seven miles from its scene. The defendant testified in his own behalf and gave detailed information as to activities, whereabouts and companions on the night of March 3, 1972, and up to the time he was apprehended in the early morning hours of March 4, 1972. The defendant testified that he met Kevin Platt at Tiki’s Restaurant where they had some coffee. None of the defendant’s testimony was impeached by the State. In People v. Tomaszewski, 406 Ill. 346, 94 N.E.2d 154, the reviewing court stated, “Facts and circumstances attending the arrest of an accused may be proved where they tend to connect him with the perpetration of the offense for which he is being tried.” As we stated, it was damaging to the defendant that when arrested he was found in the company of Kevin Platt. However, in view of the defendant’s unimpeached explanation and the failure to identify the defendant either by direct or circumstantial evidence as being a participant in the burglary of Skip’s Kasbar we conclude that the defendant’s contention is well taken in that the evidence failed to establish any connection between him and the crime charged.

There is also present in the instant case the question as to whether the evidence was sufficient to prove all the elements of the crime of burglary in that neither of the eyewitnesses, Michael Kasbeer and Lyle Curley, were able to place the unidentified individual within the Kasbeer building. Our courts have repeatedly stated that the gist of the offense of burglary is the entering of a building with felonious intent. (See People v. Clark, 30 Ill.2d 216, 195 N.E.2d 631; People v. Palmer, 26 Ill.2d 464, 187 N.E.2d 236. See also Chapter 38, Sec. 19 — 1, Illinois Revised Statutes.) However, in view of the fact that we have found that there is no evidence connecting the defendant with the crime charged it becomes unnecessary for us to make an analysis of the evidence in order to determine whether or not all the elements of the crime of burglary were present in the instant case as far as the unidentified individual was concerned.

For the reasons set forth the judgment of the circuit court of Bureau County revoking the probation of the defendant is reversed.

Reversed.

ALLOY, P. J., and STOUDER, J., concur.