author: GRAVEN, J.

text:
    Shell Oil Company, a Corporation, for the Use of the Travelers Indemnity Company, a Corporation, Plaintiff-Appellee, v. Hercules Construction Company, a Corporation, Defendant-Appellant.
    Gen. No. 65-116.
    Fifth District.
    August 8, 1966.

      Goldenhersh & Goldenhersh, of East St. Louis (Michael A. Katz, of counsel), for appellant.
    Oehmke, Dunham, Boman & Leskera, of East St. Louis (William C. Dunham, of counsel), for appellee.
   GRAVEN, J.

In 1955, the Shell Oil Company erected a number of buildings and improvements at its refinery at Roxana, Illinois. In connection therewith, it issued a purchase order to the defendant, Hercules Construction Company, for certain work and materials. The purchase order or contract contained an indemnification or hold harmless agreement, by the terms of which Hercules agreed to indemnify Shell for injury to or the death of persons arising out of or in connection with the performance of the contract, except where such injury or death resulted from the negligence of Shell without negligence or fault on the part of Hercules.

During the course of performing the work covered by the contract, one Roy Braden, an employee of Hercules, was injured while standing on a scaffold constructed by one of Hercules’ employees.

An action for damages under the Structural Work Act (Ill Rev Stats 1965, par 60, et seq., c 48) was filed in Madison County. Both Shell and Hercules were named as defendants, but Hercules was dismissed as a party-defendant. Shell made, or caused to be made, demands on Hercules that the latter defend the action and save Shell harmless pursuant to the indemnification agreement. In fact, three such demands were made. Hercules did not defend.

At the trial, an instruction was given substantially in the language of par 69, c 48, Ill Rev Stats 1955, that for any injury occasioned by any “wilful” violation of the act or by “wilful failure” to comply with the act a right of action would accrue for the damages sustained. Judgment was entered on a verdict for Braden in the amount of $18,500. On appeal, this was affirmed. Braden v. Shell Oil Co., 24 Ill App2d 252, 164 NE2d 235 (1960).

In the course of its opinion, in affirming the judgment, the court found no reversible error in the instructions, and at 254, 255 (164 NE2d at 236) stated:

“. . . ‘wilful violations’ of the Act referred to have been construed to include liability by an employer not only when dangerous conditions are known to him but also when by the exercise of reasonable care the existence of such dangerous condition could have been discovered and known to him (Schultz v. Henry Ericsson Co., 264 Ill 156 [106 NE 236]). In Kennedy v. Shell Oil Co., supra, [13 Ill2d] at page 439 [150 NE2d at page 139], the Court stated that the word ‘wilfully’ was synonymous with ‘knowingly,’ and it was not necessary that there should be a reckless disregard of the statutory provision.” . . .

Travelers Indemnity Company, the insurer of Shell, paid the judgment, interest, costs and attorneys’ fees pursuant to the terms of a comprehensive liability policy then in force. That policy contained what we take to be the usual subrogation clause.

This action by Shell, for the use of Travelers, is to recover from Hercules the amount of the judgment, interest, costs and attorneys’ fees. The case was heard on a stipulation of facts, including the record of the Braden personal injury action. Judgment was entered for plaintiff, and the defendant appeals.

The first count of the complaint sought recovery on a common-law indemnity theory asserting the defendant to be the active wrongdoer, whereas, Shell’s fault was merely passive. The second count is based upon liability by reason of the contractual indemnification and Travelers’ rights under subrogation. If the plaintiff is entitled to recovery on either theory, the judgment must be affirmed.

Hercules contends that Shell must be classed as an active wrongdoer guilty of a wilful violation and, therefore, cannot recover under a theory of active-passive negligence. It is true, under the instructions given in the personal injury action, there was an issue of wilful violation. It does not follow, however, that a finding of liability under the Scaffold Act necessarily precludes indemnification by reason of that fact alone.

The theory of active and passive wrongdoing is one whereby tort liability is shifted from a party who is exposed to liability but is only passively or technically guilty of wrongdoing to the one who actively produced the injury.

This theory was first announced in John Griffiths & Son Co. v. National Fireproofing Co., 310 Ill 331, 141 NE 739 (1923). This rule has often been repeated, and in Hyten v. Kleffman, 31 Ill App2d 273, 175 NE2d 632 (1961), we find this statement of the rule:

“. . . in scaffolding cases, the rule forbidding contribution between tort-feasors does not apply between the parties where one is the active and primary wrongdoer and the other bears a passive relationship to the cause of the injury.”

Again, in Miller v. DeWitt, Docket No. 89428 (opinion filed March 24, 1966; petition for rehearing pending), the Illinois Supreme Court stated:

“. . . When a jury could properly find that an injury was directly caused by improper construction methods and techniques used by a contractor, and that the architect was liable only by reason of a failure to stop work on the job, we think that the jury could find that the contractor was an active tort feasor while the architect’s fault was merely passive.” . . .

There are procedural distinctions between this case and Miller v. DeWitt, supra, but we can perceive of no reason to distinguish between the position of the architect in that case and the owner in this case so far as it relates to determination of ultimate liability by reason of active and passive negligence.

The record in this case indicates, and the Appellate Court found, that a board on the scaffold broke because it was rotten and this defect caused the injury. The scaffolding was erected by the defendant. Shell did send an agent to visit the job site at least daily, but no effort was made to inspect the scaffolding. This omission was sufficient, at the time, to find liability under the Scaffold Act as stated in the quoted portion of the Appellate Court opinion. See also Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE2d 247 (1965). As between these parties, it seems clear that Shell was a passive contributor to the injury and does not come within the prohibition forbidding recovery as an active tort-feasor. See also Moroni v. Intrusion-Prepakt, Inc., 24 Ill App2d 534, 165 NE2d 346 (1960).

The indemnification agreement between Shell and Hercules contractually imposed upon Hercules responsibility for this injury. Hercules seems not to deny its responsibility to Shell in this respect but asserts that Travelers cannot recover because the indemnity agreement affords indemnity exclusively to Shell and was not intended to inure to the benefit of Travelers. The point is made that the equities, as between Travelers and Hercules, become equalized when it is shown that Travelers received a premium payment for the risk it assumed. We cannot accept that reasoning.

In Jackson v. First Nat. Bank of Lake Forest, 415 Ill 453, 114 NE2d 721 (1953), the Supreme Court sustained, as not contrary to public policy, agreements exculpating a party from his own negligence unless there was something about the agreement that offended public policy. Many cases since that time have upheld broad indemnity agreements. See Ingram v. New York Cent. R. Co., 30 Ill App2d 455,175 NE2d 129 (1961); Bounougias v. Republic Steel Corp., 277 F2d 726; 54 Ill BJ 624, 635. Since, under the indemnification agreement, Hercules has liability to Shell, it follows that, by reason of the subrogation, Travelers is entitled to recover from Hercules. The circuit court of Madison County properly entered judgment for the plaintiff, and that judgment is affirmed.

Judgment affirmed.

TRAPP, P. J. and SMITH, J„ concur.


source: Caselaw Access Project

author: MORAN, J.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Aubrey Jones, Defendant-Appellant.
    Gen. No. 65-9.
    Fifth District.
    August 10, 1966.
    Ralph J. Derango, of Belleville, for appellant.
    John M. Karns, Jr., State’s Attorney, of Belleville (Paul M. Storment, Jr., Assistant State’s Attorney, of counsel), for appellee.
   MORAN, J.

This is an appeal from the Circuit Court of St. Clair County, Illinois. The defendant, Aubrey Jones, was indicted, tried before a jury, and found guilty of armed robbery. He was subsequently sentenced to the Illinois State Penitentiary for a term of not less than five nor more than fifteen years.

We believe that highly prejudicial testimony was erroneously admitted and that the judgment must therefore be reversed. In view of this error, it is unnecessary to state all of the evidence. One of the witnesses for the prosecution was Richard McCall, who had pleaded guilty to the same charge and had already been sentenced to Menard State Penitentiary. He testified that he was awakened at about 1:00 a. m. by Aubrey Jones, who wanted McCall to go with him “to keep his children.” He testified that he did not go anywhere with Jones and that, even though he met a white man somewhere, Jones was not with him. At this point, the Assistant State’s Attorney claimed surprise, based upon a statement McCall had given to the East St. Louis Police and asked the court to declare him a hostile witness. The court, stating that it had read the statement, declared McCall a hostile witness. He was questioned about his signature and admitted that he had signed the statement. The entire statement was then admitted into evidence and was passed to the jury to read. The court made no comment to the jury, and the jury was not instructed concerning the purpose of the admission or the weight to be given to the assertions contained in the statement. The statement introduced for impeachment contained many more assertions than those testified to by McCall and constituted a rather complete description of the events which took place on the night of the robbery.

The principal purpose of the introduction of McCall’s statement was not to impeach McCall, but rather to use McCall’s confession as evidence against the defendant. No man can confess to a crime for anyone but himself. The introduction of the statement under these circumstances was reversible error. People v. Tate, 30 Ill2d 400, 197 NE2d 26; People v. Tunstall, 17 Ill2d 160, 161 NE2d 300; People v. Barrigan, 337 Ill 531, 169 NE 180.

For the foregoing reasons, the judgment of the lower court is reversed and the case is remanded for a new trial.

Reversed and remanded for new trial.

GOLDENHERSH and EBERSPACHER, JJ., concur.


text:
    Johanna Becherer and Irvin Becherer, Plaintiffs-Appellees, v. Charles Best and Inge Smith, Defendants-Appellants.
    Gen. No. 65-82.
    Fifth District.
    August 10, 1966.

      Johnson, Dncey & Feder, Cornelius T. Ducey, of Belle-ville, for defendant-appellant, Charles Best, and Roberts, Gundlach, Lee Stubbs, of East St. Louis (Carl Lee, of counsel), for defendant-appellant, Inge Smith.
    Kenneth J. Juen, of Belleville, for defendant-appellee.
   MORAN, J.

This is an appeal from a verdict for the plaintiffs in an action for personal injuries and loss of consortium because of the alleged negligence of defendant, Charles Best, and the alleged wilful and wanton misconduct of defendant, Inge Smith, in the operation of their automobiles.

Charles Best testified that he was driving his vehicle at an estimated 55-60 miles per hour in a southerly direction on Route 159 about three and one-half miles south of Belleville. He had driven on the road many times before; and he knew that there were farmhouses and driveways on both sides of the road. Upon driving over the crest of a ridge, he first noticed the automobile which Inge Smith was driving in a southerly direction with Johanna Becherer as a passenger. He estimated the speed of the Smith vehicle at 35-45 miles per hour. When he was about 300-400 feet north of the Becherer driveway and 200-300 feet from the Smith vehicle, he pulled into the northbound lane with the intent to pass. He testified that he then sounded his horn. Both Inge Smith and Irvin Becherer, who was lying in the trailer located on his property, testified that they did not hear the sound of a horn. When Best was 50-75 feet from the Smith vehicle, although he did not see a left turn signal or brake lights, it began to angle left, toward the Becherer driveway, at a 45-degree angle. He immediately applied his brakes and left two skid marks, one of which was 130 feet and the other 53 feet. The right front of his vehicle struck the left rear of the Smith vehicle, causing it to drop down an embankment about 80 feet from the point of impact. Best’s vehicle came to a rest about 30 feet from the impact.

Mrs. Smith testified that she had turned on her directional signal when she was 500-600 feet from the driveway, although she admitted that she had stated in a deposition that she turned on the signal when she was 50-100 feet from the driveway. She also testified that she had slowed her vehicle to about 15 miles per hour in order to make the turn into the Becherer driveway. She also stated that at the time she turned on the blinker light, she did not observe headlights to her rear. When she slowed down to make the left turn, she saw the headlights from the rear. She had already started to turn when she saw the lights in the rearview mirror, but she did not observe the headlights moving from the southbound lane to the northbound lane. In fact, when she first saw the headlights, she didn’t know what lane of traffic they were in.

There was also testimony by the tow truck driver that he took the Smith vehicle to his garage on the night of the accident and locked it in the garage. The next morning he checked the turn signals, and the left turn signal was on. When he reconnected the battery, the bulb flashed for a left turn.

As a result of the collision, Mrs. Becherer suffered severe injuries. Dr. Nash, a neurosurgeon who first examined and treated her on the evening of the collision, testified that she had sustained brain damage of a generalized nature. He found deficits of intellectual powers, as well as behavior, which he believed to be permanent. He stated that the injuries sustained could probably be manifested in a showing of a lack of interest in housework, children, and husband. He also testified that, with proper care, she could live out her normal life expectancy, estimated to be 35.78 years. Mr. Becherer, Mrs. Smith, Maria Link, a friend of Mrs. Becherer, and Marcella Stauder, the sister of Irvin Becherer, testified that Mrs. Becherer had changed very much after the collision. Before the collision she was a very active person, who had great patience with her children, who did a lot of washing, ironing, cooking, canning, and cleaning, and who was always neat and clean. Now, after the collision, she limped and was very sluggish, she tired very easily, she had no patience with the children and often scolded and hollered at them, and she did not care how she looked, and would not take care of the house.

Dr. Bergmann, a psychiatrist, and consultant at Alton State Hospital, testified that he first examined Mrs. Becherer a year after the accident at the request of the resident physician. He stated that the injury is of a permanent nature and that she will probably require either custodial care or would need to remain in a very protected environment for the rest of her life. In his capacity he advised treatment. He relied partially upon a history obtained by the resident physician. He next examined her three years later at the request of her attorney. He admitted that his examination was for the purpose of possibly testifying; and he added that he had obtained background information from people other than Mrs. Becherer and that he had based part of his testimony on her subjective statements of pain and symptoms.

In their complaint, the plaintiffs alleged that defendant Best was guilty of negligence in that he operated his vehicle at an excessive speed under the prevailing conditions; he failed to keep a proper lookout; he followed a preceding car more closely than was reasonable and prudent; he failed to give a signal with his horn; he failed to stop his vehicle; and he drove his vehicle in such a fashion as to cause a collision. They also alleged that defendant Smith was guilty of wilful and wanton misconduct in that she turned her vehicle from a direct course upon the highway when such movement could not have been made with safety; she failed to give a signal of her intention to turn left; and she decreased the speed of her vehicle.

The jury returned a verdict in favor of Mrs. Becherer for $50,000 for her injuries and in favor of Mr. Becherer for $10,000 for loss of consortium, and they answered yes to a special interrogatory which asked whether the defendant Smith was guilty of wilful and wanton misconduct which proximately contributed to cause the occurrence in question. Both defendants filed post-trial motions for judgment notwithstanding the verdict or, in the alternative, for a new trial. From the denial of these motions, both defendants appealed.

Best first argues that the verdict of the jury was the result of passion and prejudice induced by the absence of Mrs. Becherer during most of the trial, by prejudicial argument to the jury, and by the conduct and testimony of witnesses while testifying. No objection whatever was made at any time during the trial to the absence of Mrs. Becherer. Hence this objection was waived. Marshall v. John Grosse Clothing Co., 184 Ill 421, 56 NE 807; Forest Preserve Dist. of Cook County v. Lehmann Estate, Inc., 388 Ill 416, 58 NE2d 538. Similarly, there were no allegations of error in the post-trial motion concerning prejudicial argument or the conduct of witnesses. Hence these objections were also waived. County Board of School Trustees of Macon County v. Batchelder, 7 Ill2d 178, 130 NE2d 175; Illinois Cent. R. Co. v. Johnson, 191 Ill 594, 61 NE 334; Perez v. Baltimore & Ohio R. Co., 24 Ill App2d 204, 164 NE2d 209.

Both defendants argue that the court erred in refusing to strike the testimony of Dr. Bergmann. It is argued that he was an examining physician only and therefore he could not testify concerning the subjective complaints made by Mrs. Becherer at the examination requested by her attorney.

In Quirk v. Schramm, 333 Ill App 293, 77 NE2d 417, the evidence showed that a physician had treated the plaintiff for four or five weeks commencing on the evening of the occurrence and that a year and seven months had elapsed from the last time he had treated her to the time when he examined her for the purpose of testifying. The court found him an attending physician.

In Powers v. Browning, 2 Ill App2d 479, 119 NE2d 795, the evidence showed that a physician had given the plaintiff a neurological examination in October, 1951, five months after an accident in which he was injured. He again saw the patient in November, 1951, and conducted another examination, resulting in the same findings as before. The physician again examined the plaintiff on November 14,1952, finding some improvement. The complaint in that case had been filed on February 16, 1952, and the trial began on November 20, 1952. The court found him a treating physician.

Since Dr. Bergmann had examined Mrs. Becherer for treatment, he was a treating physician and his testimony concerning her subjective symptoms was admissible. However, even if he were considered only an examining physician and his testimony inadmissible, the error would not have been reversible. The admission of incompetent testimony by a physician in a personal injury case does not justify a reversal where his' testimony is merely corroborative of matters already proven by other evidence. Greinke v. Chicago City Ry. Co., 234 Ill 564, 85 NE 327. In the case at bar, everything to which Dr. Bergmann testified was corroborative and cumulative of the testimony of Dr. Nash, Anne Faist, a nurse assigned to care for Mrs. Becherer, Mr. Becherer, Marcella Stauder, Maria Link, and Inge Smith. Therefore, if error had been committed, it would have been harmless.

Defendants also argue that the testimony of Dr. Bergmann should not have been admitted because he based his conclusions and diagnosis upon information given to him by persons other than the plaintiff. During his first examination, he relied upon a history taken by the resident physician. In the second examination, he made use of information obtained from Mr. Becherer and from others.

A physician, especially a psychiatrist, must rely on information obtained both from the patient herself and from outside sources. The court in Smith v. Broscheid, 46 Ill App2d 117, 196 NE2d 380, recognized this fact when it quoted a pertinent passage from Alexander v. Covel Mfg. Co., 336 Mich 140, 57 NW2d 324, that “(n)o person is born with a knowledge of medicine and a doctor’s conclusions must of necessity in many instances be based upon information acquired from sources outside of himself.” In so quoting, the court refused to find that the testimony was hearsay. Wigmore, in his treatise on evidence, agrees with this position. Ill Wigmore on Evidence, § 688 (3rd ed 1940). In Welter v. Bowman Dairy Co., 318 Ill App 305, 47 NE2d 739, at 364, the court held that:

The statements made by the mother to the attending physicians relating to the symptoms and sufferings of the child are admissible. The physicians were also permitted to state what the mother told them about the preparation of the formula and giving the formula to the child. The infant could not tell the physicians what had happened and (they) had to rely on information from the mother in order to diagnose the case. The conclusions stated by the mother would be hearsay. We are of the opinion that the court did not err in permitting the physicians to testify as they did.

From an analysis of these cases, we conclude that it was not error for the court to admit the testimony of Dr. Bergmann, even though it was based in part upon information obtained from persons other than the plaintiff. However, for the same reasons stated earlier, even if the testimony were inadmissible and error had been committed, the error would have been harmless.

The defendant Best next argues that the court erred in giving plaintiff’s Instruction No. 13, which provided that:

There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
Every motor vehicle when operated on a highway shall be equipped with a horn in good working order and capable of emitting sound audible under normal conditions from a distance of not less than 200 feet. The driver of a motor vehicle shall when reasonably necessary to ensure safe operation give audible warning with his horn.
If you decide that a party violated the statute on the occasion in question, you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was negligent before and at the time of the occurrence.

He argues that the instruction was not pertinent to the issues because there was only negative testimony that his horn was not sounded and because no issue of fact was thereby created. Defendant Best had testified that he sounded his horn when he pulled into the northbound lane to pass. Defendant Smith testified that she heard no horn sound. Mr. Becherer testified that he was resting in the trailer on his property and that he heard no horn sound, but that he did hear brakes squealing.

Where an instruction is given in the language of a statute, and it is pertinent to the issues presented to the jury, it should be regarded as sufficient. Deming v. City of Chicago, 321 Ill 341, 151 NE 886. In Bolek v. West Shore Transp. Co., 55 Ill App2d 237, 204 NE2d 811, the court found that an issue of fact was presented concerning whether the driver had failed to sound a reasonable warning with a horn. “This was a proper question for the jury, because the witness, Emil Byke, testified he heard no horn, although he did hear the gears shift.” The court based its finding on negative testimony.

In Berg v. New York Cent. R. Co., 391 Ill 52, 62 NE2d 676, our Supreme Court held that “the statement in the Morgan case, insofar as it appears to hold that negative testimony may never, under any circumstances, raise a conflict with positive testimony, is not adhered to.” Id. at 61, 62. The court explained its position at 60, 61 when it stated that:

It is well settled that negative evidence is admissible where the attending circumstances are such as to show that it has some probative force. ... To give it probative force, it must appear that the witness was in such proximity that he could have heard the sound had it been given, and that his attitude of attention was such that if the bell or whistle had sounded it would have attracted his attention. . . . We conclude that the negative evidence of plaintiff’s witnessses as to the sounding of the bell or the blowing of the whistle raised an issue of fact with positive testimony of defendant’s witness on the same subject.

In that case, three witnesses other than the plaintiff testified that they were near enough to the tracks that they heard the rumble of the train, and they testified to facts indicating an alertness for the sound of the bell or whistle.

In the present case, Mr. Becherer testified that he had been waiting for his wife to return, that the children were in bed, that the television and radio were off, that the bed upon which he was resting was right under the window with the head end toward the window, that the trailer was 100 feet from the edge of the highway, that the windows in the trailer were open, and that the traffic was very light. From these facts and from his failure to hear a horn, in addition to the testimony of Mrs. Smith, an issue was raised concerning whether the defendant Best had sounded his horn. Hence, the instruction was pertinent and proper.

The defendant Smith next argues that the court erred in giving plaintiff’s Instruction No. 15, which provided that :

There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and then only after giving an appropriate signal of intention to turn right or left during not less than the last 100 feet traveled by the vehicle before turning.
No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.
Any stop or turn signal when required herein shall be given either by means of the hand and arm or by a signal lamp or lamps or mechanical signal device.
If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party failed to exercise that degree of care required of him before and at the time of the occurrence.

She argues that the instruction was not appropriate because there was no evidence of a sudden stop, because there was only negative evidence that no turn signal was used, and because the instruction did not set out the degree of care required.

Quite to the contrary, there was evidence from which a jury could find that defendant Smith did decrease her speed suddenly under the conditions then existing. Depending upon what the jury believed to be the distance at which the defendant Smith decreased the speed of her automobile, it could have determined that the decrease was sudden.

Even though there is only negative testimony concerning the failure of the defendant Smith to give a turn signal, according to the rules in the cases cited earlier, a factual question was presented concerning the giving of a turn signal. Defendant Best testified that he pulled into the passing lane and that he observed neither brake lights indicating a decrease in speed nor a signal indicating a left turn. His testimony implied that he was alert, since he estimated the speeds of his and defendant Smith’s vehicles, as well as the distance between them. But, even if his testimony were not sufficient to raise a question of fact concerning the turn signal, the instruction would still be proper because the instruction also refers to proper signals when a vehicle is stopped or slowed suddenly.

Both defendants next argue that the court erred in giving plaintiffs’ Instruction No. 29, which provided that:

There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
No person shall drive any vehicle upon any public highway of this State at a speed which is greater than is reasonable and proper with regards to the traffic conditions and the use of the highway, or endangers the safety of any person, or at a speed which is greater than 65 miles per hour, the applicable maximum speed limit. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when special hazard exists with respect to other traffic and speed would be decreased to avoid colliding with any vehicle on the highway in compliance with legal requirements and the duty of all persons to use due care.
If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party failed to exercise that degree of care required of him before and at the time of the occurrence.

However, defendant Smith failed to make any objection at the instruction conference and any error now alleged by her has been waived.

Defendant Best argues that the instruction was not appropriate because there was no evidence that any hazard existed and because it allowed the jury to speculate since there was no explanation of “in compliance with legal requirements.” Concerning his first argument, a jury could have determined that a hazard existed from the evidence that he was traveling at 55-60 miles per hour, that defendant Smith was traveling at 35-40 miles per hour, that he attempted to pass, and that the Smith vehicle slowed to 15 miles per hour.

This instruction has been approved recently. In Wrighthouse v. Brown, 52 Ill App2d 191, 201 NE2d 752, the court held that the failure to give the instruction would have been error. In Berg v. Collier, 60 Ill App2d 145, 208 NE2d 353, this court held that “(i)n view of the evidence of the speed of the vehicles, and evidence of the distances traveled by both vehicles immediately before the collision, in an area where the view was unobstructed, we fail to see how the speed of plaintiff’s vehicle could be immaterial.” The jury was not permitted to speculate concerning the legal requirements since there was evidence that the speed limit on the road was 65 miles per hour. The giving of the instruction was not error.

Defendant Smith next argues that the court erred in refusing to direct a verdict for her because the only evidence which would support a finding of wilful and wanton misconduct was the negative evidence that she did not give a turn signal; and such evidence was not sufficient to raise a question of fact for the jury. She fails to recognize, however, that even if the negative evidence were not sufficient there still remained the allegations that she turned her vehicle from a direct course upon the highway when such movement could not have been made with safety and that she decreased the speed of her vehicle. A jury could have found wilful and wanton misconduct from either of these allegations. This court cannot and will not hold as a matter of law that defendant Smith was not guilty of wilful and wanton misconduct. It was recognized in Fosdick v. Servis, 40 Ill App2d 363, 189 NE2d 538, at 367, that “each case depends upon its own peculiar facts, and the question whether a personal injury has been inflicted as a result of wilful and wanton misconduct is ordinarily a question of fact to be determined by the jury, if there is evidence in the record to support it.” The evidence in this case, taken with all intendments most favorable to the plaintiffs, is sufficient to support the finding of wilful and wanton misconduct.

Finally, both defendants argue that the jury’s finding of negligence and wilful and wanton misconduct is inconsistent and against the manifest weight of the evidence. In Hulke v. International Mfg. Co., 14 Ill App2d 5, 142 NE2d 717, the court held at 45 that “to be against the ‘manifest weight of the evidence’ requires that an opposite conclusion be clearly evident.” In this case there is ample evidence to support the jury’s verdict and, quite to the contrary, an opposite conclusion is not clearly evident.

For the foregoing reasons the judgment of the lower court is affirmed.

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


author: STOUDER, J.

text:
    In the Matter of the Estate of Bessie Bickford, Deceased, Petitioner-Appellee, v. Vern L. Bickford, Jr., Respondent-Appellant.
    Gen. No. 66-6.
    Third District.
    August 5, 1966.

      Stewart R. Winstein, of Rock Island, for appellant.
    Long, Gende & Schrager, of East Moline, for appellee.
   STOUDER, J.

Petitioner Appellee, Bessie A. Winger, Administratrix of the estate of Bessie Bickford, commenced this action as a part of the probate proceedings pending in the Circuit Court of Rock Island County, by filing her petition for citation against Vern L. Bickford, Jr., Respondent Appellant, to recover assets belonging to the estate of the deceased. This is an appeal from an order of the court finding that $2,507, a tractor and a space heater belonged to the decedent at the date of her decease and ordering Respondent to turn over the property to the Petitioner, Administratrix.

Bessie Bickford died intestate on August 14, 1964, a resident of Rock Island County, Illinois. Letters of Administration were duly issued by the Circuit Court of Rock Island County to Bessie A. Winger, a daughter, Petitioner herein. Decedent left as her heirs at law, several children including Petitioner and Respondent. Citation proceedings were instituted by Petitioner to recover a tractor, space heater and $2,507 in possession of Respondent, alleged to belong to decedent and hence considered part of the estate.

The evidence presented consisted primarily of the testimony of Petitioner, Respondent, other children of decedent and the former wife of Respondent. The evidence is undisputed that the decedent, Bessie Bickford, owned the house in which she lived and that Respondent had lived with her for most of his life, including the period of his marriage. The decedent operated a restaurant for twelve years prior to her death. Decedent had been in ill health for approximately three years being hospitalized for three months prior to her death. After her death $2,507 was discovered in the pocket of her dress located in a storeroom of her house. Decedent also kept her receipts and other business papers in the same storeroom in which the dress was kept. Respondent took possession of and counted the money in the presence of the other children after the decease of Bessie Bickford, the testimony being conflicting as to statements allegedly made by Respondent at the time. Although denied by Respondent, other witnesses testified that he stated the money was his mother’s. The evidence was also conflicting concerning the possible sources of the money. Respondent in his testimony claimed that he had received gifts from his father and grandfather some years earlier and that he had delivered the money to his mother for safekeeping. Respondent also testified that he had helped his mother in the restaurant and that the restaurant had been unprofitable for some time prior to his mother’s death. Other testimony indicated that Respondent had not been employed regularly for more than eight years and that he had no money which he could have given his mother. It also appears from the testimony that three days before her death the decedent had made a statement in the hospital in the presence of her children to the effect that the money in the dress was Respondent’s. So far as the tractor and space heater are concerned Respondent claimed that his mother had given them to him approximately four years prior to her death.

Respondent, in seeking a reversal of the order of the trial court, argues that the order is against the manifest weight of the evidence. The primary area of controversy appears to be whether Petitioner or Respondent has the burden of proof. Respondent argues that the burden of proof in a citation proceeding is on Petitioner. Petitioner does not dispute this but contends that where Respondent does not obtain possession of property until after the death of decedent, he has the burden of showing ownership in himself. We believe there is merit in both arguments but that such arguments are not inconsistent, finding support as they do in the same Illinois authorities. The burden of persuasion remains with Petitioner but when Petitioner has presented a prima facie case of ownership by the decedent the burden of establishing ownership in himself shifts to Respondent. Vercillo’s Estate v. Gagliardi, 27 Ill App2d 151, 169 NE2d 364. To the same effect are, In re Hill’s Estate, 42 Ill App2d 396, 192 NE2d 429, and Storr v. Storr, 329 Ill App 537, 69 NE2d 916, where the decedent had transferred possession of the disputed asset prior to his death and ownership of such asset was claimed by donee as an inter vivos gift. In the aforementioned cases the court concluded that the prima facie case of ownership had been presented by Petitioner thereby requiring Respondent donee to establish the inter vivos gift to him by clear and convincing evidence.

It is in the application of these rules and in their differing views of the evidence that the parties disagree. Respondent contends that possession of the money involved was not obtained after the death of his mother but was always with Respondent. Therefore Petitioner has failed to sustain her initial burden of proving ownership of the money by decedent. We cannot agree with Respondent’s analysis of the facts as shown by the evidence. The evidence shows clearly that the money involved was in the pocket of a dress owned by decedent and in her control until the time of her removal to the hospital. There is no evidence showing any change in control at that time or from that time to the date of death. In our opinion, this establishes the element of possession in decedent at the time of death rather than in Respondent and when considered with the other evidence amply presents a prima facie case of ownership of such money by decedent. This being the case, the burden was on Respondent to show by what right he claimed ownership. The facts which Respondent claims support his ownership of the money are disputed in practically every material respect. Even the statement of decedent shortly before her death that the money belonged to Respondent can be interpreted as a desire of the decedent that Respondent have such money after her death particularly when viewed in relation to other testimony suggesting that Respondent expected special treatment in the disposition of the decedent’s estate. The trial court’s determination of facts adverse to the claim of Respondent finds ample support in the conflicting evidence and such determination will not be disturbed on review.

As to the other items of personal property claimed to be gifts to Respondent by decedent, again, we have only Respondent’s assertion that they were gifts. The evidence discloses no change of possession or control, no delivery either actual or constructive nor any other altered circumstance from which a change of ownership can be inferred.

The authorities relied upon by Respondent all involve factual situations where actual possession of the property involved was clearly in Respondent at the time of death and have no application to the point at issue in the instant case. We are here dealing with the question of possession. Since we find possession to have been in decedent we must further find that Respondent did not meet his burden of proving ownership in himself and the decision of the lower court must be affirmed.

Judgment affirmed.

CORYN, P. J. and ALLOY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Defendant in Error, v. Elmer L. Smith, Defendant-Plaintiff in Error.
    Gen. No. 10,735. (Abstract of Decision.)
    Fourth District.
    August 11, 1966.
    Walter J. Simhauser, of Springfield, for plaintiff in error; Raymond L. Terrell, State’s Attorney, of Springfield (Richard A. Hollis and Bruce I. Gordon, of counsel), for defendant in error.
   Opinion by JUSTICE SMITH. Not to be published in full.


text:
    Ronald W. Sadewater, et al., Plaintiffs-Appellees, v. City of Champaign, Illinois, a Municipal Corporation, and L. E. Kirby, as Superintendent of Building Inspection of the City of Champaign, Illinois, and Frank K. Robeson, Defendants-Appellants.
    Gen. No. 10,769. (Abstract of Decision.)
    Fourth District.
    August 11, 1966.

      Busch, Harrington & Porter, of Champaign (Thomas E. Harrington, of counsel), and Albert Tuchorn and James W. Evans, of Champaign, for appellants; Webber, Balbach, Thies & Follmer, of Urbana (Richard L. Thies, of counsel), for appellees.
   Opinion by JUSTICE SMITH. Not to be published in full.


text:
    Charles O. Cavitt and Charles Cavitt, a Minor, by His Next Friend, Charles O. Cavitt, Plaintiffs-Appellants, v. Terrence F. Faulkner, Defendant-Appellee.
    Gen. No. 65-151. (Abstract of Decision.)
    Second District.
    August 22, 1966.
    Reese & Schuster, of Rockford, for appellants; Thomas and Kostantacos, of Rockford, for appellee.
   Opinion by JUSTICE ABRAHAMSON. Not to be published in full.


author: MR. JUSTICE ABRAHAMSON

text:
    The Petition of Harry P. Breger to Have Paul Freeman Seymour and Michael Todd Seymour Declared Dependent Children, Petitioner-Appellee, v. Paul Stanley Seymour, Father of Said Children, Respondent-Appellant.
    Gen. No. 66-13.
    Second District.
    August 22, 1966.

      Burl F. Nader, of Libertyville, for appellant.
    Bruno W. Stanczak, State’s Attorney, of Waukegan (Jack Hoogasian and Robert J. Smart, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court of the Nineteenth Judicial Circuit, Lake County, Family Division, entered on September 21, 1965, that declared Paul Freeman Seymour and Michael Todd Seymour “dependent children within the meaning of the Statutes of the State of Illinois.” That order further found that the natural parents of the children were “unable to properly care” for them, and committed them to the custody of the Angel Guardian Orphanage until further order of court.

The natural father, Paul Stanley Seymour, urges that the trial court had no authority to deprive him of the custody of his children under the statute and that the decision was against the manifest weight of the evidence.

The record discloses that Paul Stanley Seymour and Donna Seymour (now Blake), the natural parents of the children, were divorced in Lake County in 1963. Custody of the children was granted, at that time, to the mother, and the father was ordered to pay to her the sum of $30 per week for their support. At the time of the hearing in September, 1965, Paul Freeman Seymour was 5% years old and Michael Todd Seymour was 4 years old.

Both parents remarried but the mother soon separated from her second husband and lived alone with the children in Lake County under circumstances of apparent hardship. The father and his second wife lived in Milwaukee and expected their second child in October, 1965.

On March 1, 1965, at the request of the mother, the children were taken by the father to Milwaukee and stayed with him until July 5, 1965. On that date, they were returned to their mother because, so she stated, the new Mrs. Seymour was unable to cope with them. The Seymours, however, maintain that the children were returned so that they would be able to take a two-week vacation. In any event, the natural mother shortly thereafter applied to the Department of Children’s and Family Services for help and readily admitted that she was presently unable, because of her financial problems and poor physical condition, to care for her children. Accordingly, the State’s Attorney of Lake County filed a petition under the so-called Family Act (Ill Rev Stats, c 23, §§ 2001-2036, 1965), since repealed, alleging that the parents were “either unfit or improper guardians or are unable or unwilling to care for, protect, train, educate, control or discipline” the children and requesting that they be declared dependent children under the meaning of the Act and placed under the guardianship of some suitable person or institution.

The father was properly served with summons in that proceeding and personally appeared and testified at the hearing before the court. He there stated his willingness and ability to care for the children and requested that their custody be granted to him. As we have seen, the trial court denied his request.

It is well established that parents have an inherent right to the society and custody of their own children. In re Johnson v. Johnson, 30 Ill App2d 439, 444, 174 NE2d 907. The State may only interfere with that inherent right where it has been forfeited by the parents, either through their misconduct, or their inability to provide proper financial or other care for their children. In re Ramelow, 3 Ill App2d 190, 198, 121 NE2d 41; In re Johnson v. Johnson, ibid., at 445.

The Family Court Act recognized the paramount rights of parents to the custody of their children. Section 2009 of the Act provided, however, in part, as follows:

“2009. Dependent and neglected children — Custody. § 7. If the court shall find any child under the age of 18 years to be dependent or neglected within the meaning of this Act, the court may allow such child to remain at its own home subject to the friendly visitation of a probation officer, and if the parent, parents, guardian or custodian consent thereto, or if the court shall further find that the parent, parents, guardian or custodian of such child are unfit or improper guardians or are unable or unwilling to care for, protect, train, educate or discipline such child, and that it is for the interest of such child and the people of this State that such child be taken from the custody of its parents, custodian or guardian, the court may make an order appointing as guardian of the person of such child, some reputable citizen of good moral character and order such guardian to place such child in some suitable family home which such guardian may provide for such child or the court may enter an order committing such child to some training school or industrial school, to some association embracing in its objects the purpose of caring for or obtaining homes for neglected or dependent children, which association shall have been accredited as hereinafter provided,

It is apparent that under the Act it is not necessary that the parent be “unfit” to be deprived of custody. This is in accord with the common law in this State that the fitness of the natural parent is only one factor, albeit an important one, in the determination of custody. Giacopelli v. Florence Crittenton Home, 16 Ill2d 556, 566, 158 NE2d 613. In itself, it is not conclusive but will be considered with other factors, such as financial ability, in the determination of the best welfare of the child.

We do not, therefore, agree with the contention of the father in this appeal that the trial court could not deprive him of the custody of his children unless it found him an “unfit” parent.

Under the circumstances as disclosed by testimony at the hearing, we also cannot agree with the father that the decision of the trial court was against the manifest weight of the evidence. Regardless of the willingness of the father to now care for his children, laudatory as that might be, there is considerable doubt as to his ability to furnish either the necessary financial support or environmental surroundings to properly care for them. He earns approximately $85 a week from two jobs; he pays $68 a month towards a $2,000 loan; he pays $60 a month for the rental of his two bedroom home where he resides with his second wife and two children of that marriage. He was unable, because of financial difficulties, to pay any but a small fraction of the child support provided for by the terms of the decree of divorce to the mother of the children. He paid her no more than $120 during the entire year of 1965. His earlier record was, apparently, no better.

The second wife of Paul Stanley Seymour, aged 20 years, admitted that she was often "nervous” with the children when they lived with her and that she had threatened to tape their mouths closed for excessive crying. The youngest child has a nervous disorder and had, at least on one occasion, hidden from her to avoid a “licking” and that he was found by the police. She further stated that her own daughter still made her “nervous.”

The trial court indicated that it would not consider an adoption of the children but would periodically review the condition of the natural parents with the view of the return of custody to them when, and if, their condition improved. This course appears to us to be a sound one.

The trial court was in the position to hear the testimony, observe the witnesses, and weigh the evidence. We will not substitute our judgment for the decision of the trial court where, as here, that decision does not appear to be clearly against the weight of the evidence. Giacopelli v. Florence Crittenton Home, ibid., at 566; People ex rel. Pace v. Wood, 50 Ill App2d 63, 68, 200 NE2d 125.

Therefore, the order of the trial court will be affirmed.

Judgment affirmed.

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


author: ALLOY, J.

text:
    City of Green Rock, Appellee, v. Peter Van Opdorp and Lina Van Opdorp, Appellants.
    Gen. Nos. 66-7, 66-8.
    Third District.
    August 23, 1966.
    Rehearing denied September 14,1966.

      Andrew Kopp, of Moline, for appellants.
    N. L. McGehee, of Silvis, for appellee.
   ALLOY, J.

These are appeals from judgments of the Circuit Court of Henry County, Illinois, overruling the objections of Appellants Peter Van Opdorp and Lina Van Opdorp and confirming special assessment rolls for the laying of water mains. Only questions of law are involved on appeal.

From the record it appears that the City of Green Rock had enacted an ordinance for installation of a water distribution system and had filed a petition to assess the cost of the system as against the public and the property benefited. After the filing of the assessment rolls, Appellants filed a number of legal objections. The court sustained the legal objections of Appellants in part and in so doing declared that the commissioner appointed to spread the assessment was not a competent person as prescribed by statute, and further, that there was not an equitable apportioning of the costs of the improvement between the public and the property benefited. The court then directed another person, determined to be competent, to make a true and impartial assessment of the costs of improvement. After the filing of the revised assessment rolls, Appellants filed new legal objections, not theretofore raised, alleging that there was not a water supply available for use in the proposed distribution system. The trial court overruled such legal objections to the revised assessment, without passing on the merits of such objections, and observed that such objections were not timely and should have been made at the earliest time so that the court could dispose of them when the sufficiency of the proceedings was first questioned. The court observed that to permit piecemeal objections to the sufficiency of the proceedings upon the filing of amended assessment rolls would permit a type of harassment in such proceedngs that would work only for delay, with no benefit to objector’s position. The trial court confirmed the revised assessment rolls.

On appeal from such orders Appellants assert that proceedings on the new assessment rolls were “de novo” and that any objections may be filed as against such rolls under the provisions of section 9-2-72 of chapter 24 of Illinois Revised Statutes (1965 Ill Rev Stats, c 24, §9-2-72).

Under the Illinois Municipal Code, the courts before which special assessment proceedings are pending, have the power to revise and correct the assessments levied and to change or modify the assessment rolls. Under the Code the court may refer such matters to a competent person for the purpose of revision to be submitted to the court for approval. In such case the court does not dismiss the petition because the apportionment of costs of improvement is incorrect, but has the duty to change or modify the distribution so as to produce an assessment which is just (1965 Ill Rev Stats, c 24, §§9-2-56, 9-2-61; Village of Bradley v. New York Cent. R. Co., 277 Ill 608, 115 NE 640). Under the Municipal Code, de novo proceedings are required only where the special assessment or a special tax is annulled by corporate authority or set aside by any court or is declared invalid or void for any reason (1965 Ill Rev Stats, c 24, § 9-2-72). In the case before us there was no confirmation of the first assessment roll filed. As a result, there never was a special assessment which could have been annulled or declared void. Under the Local Improvement Act, the trial court determines all questions relating to the sufficiency of the proceedings (1965 Ill Rev Stats, c 24, §9-2-57). The court in such instance may satisfy itself that changes, revisions, and modifications affected might be complete and final. It is contemplated by statute that there will be an orderly consideration of the merits of the proceeding. To direct that new assessment rolls should be prepared without first disposing of all legal objections would cause undue hardship and expense to the municipality. As indicated by the trial court, such piecemeal objections to the sufficiency of the proceedings would permit a type of harassment which would operate only to delay, without benefit to objectors’ position.

While it is not improper for a trial court to allow an amendment to objections which had been previously filed by allowing filing of additional objections, a trial court would not commit error in refusing to allow the filing of such new or amended objections. Allowance of the filing of such new or amended objections rested within the sound discretion of the trial court (Village of Des Plaines v. Winkelman, 270 Ill 149, 110 NE 417). In the Winkelman case last referred to, the objectors had filed many objections and the court sustained these objections in part and referred the rollback to the commissioner with directions to recast the assessment. After this was done and when the revised roll was filed, the appellant filed another objection and asked to argue this objection, stating that he should have argued it on the hearing of the original objections and that it was an oversight that he did not do so. The trial court refused to allow any objection except as to whether the assessment roll had been properly recast in accordance with the order of the court. The Supreme Court stated (at page 152) in the opinion:

“It was held that the objections not urged were waived. In this case, the counsel did not expressly state that he did not care to urge any objections except those argued but the effect of his action was the same. The allowance of amendments to objections filed in a special assessment proceeding and the granting of permission to file additional objections are matters within the sound discretion of the court, which will not be reviewed unless the discretion has been abused.”

We note that the court in the case before us considered all objections which were filed by Appellants originally on June 23, 1964, and sustained such objections in part. The revised assessment rolls were then returned to the court and Appellants sought then for the first time to raise the objection that upon the completion of the improvement contemplated there would not be an adequate supply of water. This objection could have been raised to the original rolls and had nothing to do with changes effected in recasting the assessment rolls. We must, therefore, conclude that the action of the trial court in refusing to allow Appellants to file such objections at that stage in the proceedings was not an abuse of the discretionary power of the court.

Objections which were not properly raised in the trial court cannot be considered for the first time on appeal (Village of Oak Park v. Swigart, 266 Ill 60, 61, 62, 107 NE 158). The Supreme Court in Village of Oak Park v. Swigart, supra, specifically stated that it is no hardship for defendants to be compelled to bring forward all of their objections at the same time. The refusal of the trial court in the case before us to grant leave to defendants to file new objections nine months after the hearing on all other legal objections had been concluded, properly rested within the discretion of the trial court.

On the basis of the record before us, the action of the Circuit Court of Henry County was proper and is, therefore, affirmed.

Affirmed.

CORYN, P. J. and STOUDER, J., concur.


author: PER CURIAM.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William E. Johnson, Defendant-Appellant.
    Gen. No. 66-57.
    Fifth District.
    August 26, 1966.
    William E. Johnson, per se, of Menard, appellant.
    John M. Earns, Jr., State’s Attorney, of Belleville, for appellee.
   PER CURIAM.

The defendant appeals from the judgment of the Circuit Court of St. Clair County entered upon his plea of guilty to the offense of Involuntary Manslaughter (c 38, § 9-3, Ill Rev Stats 1965). In an indictment returned on February 16, 1966, it is charged that defendant drove an automobile in a reckless manner, and as a result, one Hasty Lee was struck and killed. In his Notice of Appeal, defendant states that the trial court did not admonish him in accordance with “statutory provisions” and that the sentence imposed, confinement in the penitentiary for a term of not less than 2 nor more than 10 years, is excessive.

The transcript of proceedings in the trial court has been reviewed by this court. It appears therefrom that on February 24, 1966, the defendant appeared for arraignment. At that time he was furnished with a copy of the indictment charging him with the crime of involuntary manslaughter, a list of witnesses, and a copy of a written statement signed by the defendant. On that date the court appointed the Public Defender of St. Clair County to represent the defendant, and a plea of not guilty was entered.

On March 15, 1966, the defendant again appeared in court, represented by the Public Defender. The Public Defender stated to the court that after consultation with the defendant, and after advising him of his rights, and informing him of the penalty which might be imposed, the defendant desired to withdraw his plea of not guilty and enter a plea of guilty, and requested the court to set a date for the hearing of evidence in mitigation. The transcript reflects that the defendant stated that he desired to plead guilty, that his age was 30 years, and that the court properly, and in detail, admonished the defendant regarding his right to trial by jury, his right to counsel, to be confronted by witnesses, the effect of a plea of guilty, and the minimum and maximum sentence which could be imposed. Defendant’s counsel made an oral application for probation, and the matter was set down for April 1st.

On April 1,1966, the court heard evidence in mitigation. The record shows that the defendant has been convicted of several offenses on prior occasions, and has been incarcerated in both state and federal penal institutions.

This court has examined the record in detail, and under the circumstances here presented concludes that the appointment of counsel would constitute an imposition on the bar, and has therefore, elected to review the cause in this manner. The transcript of the proceedings shows that the defendant, fully cognizant of his rights, and of the penalty which might be imposed as the result of his plea of guilty, pleaded guilty and persisted in the plea. Examination of the evidence offered in aggravation and mitigation leads us to conclude that the sentence imposed is not unduly severe.

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

Judgment affirmed.


text:
    City of Nokomis, Plaintiff-Appellant, v. Richard K. Smith, Defendant-Appellee.
    Gen. No. 66-69.
    Fifth District.
    August 25, 1966.
    Kenneth E. Moss, of Nokomis, and Harold Broverman, Broverman & Broverman, of Taylorville, for appellant.
    Michael Frey, of Chicago, and Paul M. Hickman, of Hillsboro, for appellee.
   MORAN, J.

This action was prosecuted by the City of Nokomis against Richard K. Smith for the violation of City Ordinance No. 527, which provides in part that “it shall be unlawful for any person, firm or corporation to, at any time hereafter, sell, solicit, or distribute any goods, wares, or merchandise, including newspapers and magazines, from house to house or from door to door in the City of Nokomis,” unless certain information is submitted to the City Clerk.

Richard Smith was engaged in collecting premiums from existing policyholders and interviewing prospective customers for applications for health and accident coverage at the time of his arrest. The court granted the defendant’s motion to dismiss the complaint, stating that “the ordinance is vague as to what constitutes solicit,” that the defendant’s activities were not included within the purview of the ordinance, and that “there is no municipal power in Illinois to regulate or license solicitors” since no such power was granted by the legislature. On appeal, the City of Nokomis argues that it did have the power to enact Ordinance No. 527 and that the collection of premiums and the interviewing of prospective customers constitute the sale, solicitation, or distribution of goods, wares or merchandise within the purview of the ordinance.

It has long been recognized in Illinois that the “judicial power to determine the constitutionality of legislation is to be exercised only when it is essential to the disposition of a case.” Donoho v. O’Connell’s, Inc., 18 Ill2d 432, 164 NE2d 52; Osborn v. Village of River Forest, 21 Ill2d 246, 171 NE2d 579. If the activities of the defendant do not come within the purview of the ordinance, it will be unnecessary to consider the constitutional and statutory authority of the City to enact the ordinance.

Webster’s Third New International Dictionary defines “goods” and “wares” as tangible, movable personal property having intrinsic value and “merchandise” as the wares of commerce or as goods which are bought and sold in commerce. In Davis v. Hincke, 264 Ill 46, 105 NE 708, the expression “goods and chattels” was interpreted to extend to “the visible and tangible articles of personal property of which actual possession may be had and delivered,” but not necessarily to “choses in action which are incapable of manual delivery, to promissory notes or other securities which are only evidences of indebtedness, or to money the loan of which passes the title to the particular pieces and only creates an indebtedness from the borrower to the lender.” The court went on to hold that the meaning must depend upon the subject matter and the context of the particular statute. In Banta v. City of Chicago, 172 Ill 204, 50 NE 233, the court held that “the phrase ‘goods, wares, and merchandise’ includes and comprehends shares in the capital stock of incorporated companies, and other securities which are the subject of barter and sale,” implying that marketability is essential.

On the other hand, insurance has been defined to be “an agreement by which the insurer, for a consideration, agrees to indemnify the insured against loss, damage, or prejudice to certain property described in the agreement, for a specified period, by reason of specified perils.” Barnes v. People ex rel. Moloney, 168 Ill 425, 48 NE 91; Patterson v. Durand Farmers Mut. Fire Ins. Co., 303 Ill App 128, 24 NE2d 740. Health and accident insurance is not something which has marketability and can be the subject of barter and sale in the commercial market. This type of insurance is nothing more than an indemnity against a future loss which may or may not occur. Hence the collection of premiums and the interviewing of prospective customers does not constitute the sale, solicitation, or distribution of goods, wares, or merchandise within the purview of the statute.

The same issues raised on this appeal were considered recently by the Supreme Court of South Dakota in City of Gregory v. Clausen, 78 SD 208, 99 NW2d 833, wherein the court held that, due to the ordinary meaning of the words “goods, wares, merchandise, and insurance,” “it is evident that the ordinance did not apply to the activity of defendant in making house to house solicitations of applications for insurance.” We agree.

For the foregoing reasons, the judgment of the Circuit Court of Montgomery County, Illinois is affirmed.

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


author: GOLDENHERSH, P. J.

text:
    John D. Hux and Olga M. Hux, Husband and Wife, Plaintiffs-Appellees, v. Denis Raben and Louella Raben, Husband and Wife, Defendants-Appellants.
    Gen. No. 65-106.
    Fifth District.
    August 31, 1966.

      Boswell & Boswell, of Harrisburg, for appellants.
    Frank Bonan, of McLeansboro, for appellees.
   GOLDENHERSH, P. J.

Defendants appeal from the decree of the Circuit Court of Hamilton County ordering the specific performance of a contract for the sale of real estate.

Plaintiff, John D. Hux, is the assignee of an option to purchase the real estate involved in this litigation. On April 17, 1964, defendants, husband and wife, signed a printed form headed “Option to Purchase Real Estate.” The instrument recites the receipt by defendants of the sum of $1,000, in consideration of which, R. L. Merrick, described as purchaser, his heirs and assigns, are given “the exclusive right to purchase, upon the terms and conditions hereinafter set out, on or before the 1st day of Jan. 1965,” property known as the Denis Raben farm, of 440 acres, more or less. The land is described as being in designated sections in Hamilton County, but no detailed description is set out. It is stated in the document that the price is $100,000, $4,000 to be paid June 30, 1964, “Balance to be paid Jan. 1, 1965.”

The following provisions, among others, are included in the option:

“Dennis Raben to retain all rent from farm for 1964 as part of purchase price.
“2. With (sic) ten days after exercise of this option the seller shall furnish to the Purchaser an abstract of title certified to date, showing merchantable title of record vested in Seller. The Purchaser shall have fifteen days thereafter to have the abstract examined and within said time shall notify the Seller, in writing, of any defects therein, and any defects in the abstract not so noted, except liens of record, shall be deemed waived. The Seller shall correct any such defects within a reasonable time, provided if the defects are not corrected within ninety days after notice thereof, the Buyer upon written notice may avoid this contract, and provided further, if the defects cannot be corrected this contract shall be void and the money paid to the Seller for this option shall be returned to the purchaser.
“7. The deed shall be delivered and the sale closed within thirty days after the exercise of the option, provided that if title is not acceptable at that time, the sale shall be closed within three days after title is accepted by the Purchaser.
“8. If this option is not exercised by notice in writing prior to midnight of the 1st day of January, 1965, the same shall expire and the consideration paid therefor shall be retained by the Seller.
“Dennis Raben agrees to carry 2nd Deed of Trust in the amount of $25,000.00 for 10 yrs., equal payments with 6% interest per annum.”

Plaintiffs’ complaint is in two counts; in Count I plaintiffs allege the execution of the option on April 17, 1964, and the payment of $1,000 on that date, the payment of $4,000 on June 30, 1964, and further allege that after the payment of the sums of money and the removal of the crops by defendants, defendants delivered possession of the land to plaintiffs and plaintiffs have planted 200 acres of wheat and have expended $12,989.40 for land clearing and improvements, of which defendants knew, and to which they consented. Plaintiffs further allege that they are assignees of the option, that they have performed all the conditions of the agreement by them to be performed, and that defendants have failed and refused to deliver a warranty deed to the premises.

In Count II, plaintiffs repeat the allegations of Count I, and pray for abatement of the purchase price in an amount to be fixed by the court, because of defendants’ inability to deliver fee simple title, in that certain mineral rights were reserved to, and are owned by, a pri- or owner.

The evidence shows that Reginald L. Merrick (named as R. L. Merrick in the option), on May 14, 1964, assigned to Harold Hahn, all of his right, title and interest under the option agreement. The assignment recites a consideration of $5,000, payable $500 on May 14, 1964, and $4,500 on August 1, 1964. The assignee agrees therein to pay the purchase price, perform the terms and conditions of the option, and idemnify Merrick and hold him harmless from any claim arising by reason of failure to so perform. The assignment also states, “This agreement is subject to the ability of the Second Party (the assignee) to obtain a loan from some insurance company in the sum of $150.00 per acre, with the usual provisions in the Promissory Note and Deed of Trust.”

On November 3, 1964, by written assignment, Harold Hahn and spouse assigned to plaintiff, John D. Hux, all of the right, title and interest of Merrick under the option agreement. This document recites a consideration of $1 and other valuable considerations. It contains no indemnity agreement or provision for financing.

Merrick, called as a witness for plaintiffs, testified that he is a real estate broker and buys and sells real estate in southern Illinois. He identified the option, and two checks evidencing the payments of April 17, and June 30, 1964. After he assigned the option to Hahn “he had nothing further to do with the property.” In October or November he asked defendant, Denis Raben, to bring the abstract up-to-date so he could get title insurance. Defendant, Denis Raben, brought the abstract to plaintiffs’ attorney, Frank Bonan, who is a lawyer and abstracter in Hamilton County. Mr. Bonan extended the abstract to date, and at the direction of Mr. Merrick, submitted it to Chicago Title & Trust Company on December 11, 1964. On December 28, 1964, Chicago Title & Trust Company sent Mr. Bonan a preliminary report of title enumerating various objections. There is no mention in the option of title insurance, nor of Chicago Title & Trust Company. The only provisions made for evidence of title are set forth in the above quoted paragraphs of the option.

On December 29, 1964, Merrick sent defendants a letter notifying them of his intention to exercise his option “as provided in said April 17, 1964, agreement.” The letter concludes with the following paragraph:

“If you will prepare the necessary documents and furnish us with an abstract of title certified to date as provided in said agreement, we shall, within 15 days after receipt thereof, be ready to close this transaction under the terms and conditions of said ■agreement.”

Merrick testified that he called defendant, Denis Raben, and told him there were some objections to the title. He further stated that defendants’ inability to convey the whole of the mineral rights reduced the value of the land. He stated that he wrote defendant, Denis Raben, advising him of defects in the title, but the letter is not in evidence.

On January 18, 1965, Merrick delivered to Bonan a sight draft in the amount of $70,000, payable to defendants’ order. He stated that “the objections were cured sufficiently to be accepted by Kansas City Life Insurance Company.”

Harold Hahn, called by plaintiffs, testified that after he acquired the assignment of the option, he did some clearing during August and September, and in November he furnished the seed for the tenant, McPeak, who sowed 200 acres of wheat. Hahn asked defendants for possession of the farm by January 1, 1965, and they moved prior to that date. After his assignment to Hux “he had nothing further to do with the transaction.” He stated that he had tried to arrange a loan from Kansas City Life Insurance Company, but did not complete the transaction.

There is no testimony that arrangements for a loan from Kansas City Life Insurance Company were completed, neither Merrick nor Hahn testified as to any amount which was to be borrowed, and there is no note or mortgage in evidence.

McPeak, the tenant, testified that defendant, Denis Raben, told him “it looked like I was going to have a new landlord,” and that defendants moved from the farm in December, 1964.

Mr. Bonan testified that defendant, Denis Raben, brought him the abstract, he brought it down to date, submitted it to Chicago Title & Trust Company and upon receipt of the preliminary report of title discussed the objections with plaintiff, John D. Hux.

On January 14, 1965, attorneys for defendants wrote Merrick advising him that defendants considered the option “to have expired for your failure to pay the balance due under said option when due.” The letter states that not only a written notice of intent to exercise the option, but also payment was to have been received on or before January 1,1965.

On January 19, 1965, Mr. Bonan wrote defendant, Denis Raben, as follows:

“A draft in the amount of $70,000.00 has been delivered to me. It is to be presented with Deed and Title Policy. I am writing to Mr. Hux about this. In the meantime, will you advise (1) the bank you do business with and, (2) whether you have a deed prepared and if so send a copy to me of Mr. Hux for approval.”

On January 29th, 1965, Mr. Bonan again wrote Denis Raben, as follows:

“You are advised that I have in my possession an executed note for $25,000.00 and second mortgage to secure the note. As soon as we can remove the objections of the Chicago Title we will be ready to close the deal. Upon such event it will be necessary for you and Mrs. Raben to deliver a Warranty Deed to me covering the 760 acres. I am in a process of clearing the title and I believe that I have gotten the principal objection under way so that I can probably get it worked out within a short time.
“Will you advise as to the preparation of the deed. If you are going to have the deed prepared, will you be kind enough to submit me a copy for inspection and submission to Mr. Hux for his approval before we close.”

Plaintiff, John D. Hux, testified that he is the owner of the option, that although defendants could not convey the whole of the mineral rights, he was willing to accept conveyance of the land, that he had sufficient funds on deposit to cover the draft.

No evidence was offered by defendants. The trial court found for plaintiffs, decreed specific performance and directed the performance of the following acts:

That defendants forthwith:

(a) Deliver a good and sufficient statutory Warranty Deed executed in favor of the plaintiffs within thirty (30) days from August 15,1965.
(b) Give receipts to the Clerk of this Court for the sums of money ordered to be paid by this Court and for Second Deed of Trust ordered to be deposited.

That plaintiffs, forthwith:

(a) Deposit with the clerk of the circuit court the sum of $70,000 together with interest at 5% per annum from February 20, 1965, the date of the filing of the complaint.
(b) Deliver to the clerk of the circuit court a Second Deed of Trust, executed in favor of defendants in the amount of $25,000 payable in 10 equal payments of principal, plus interest at 6% per annum, payable on August 15, 1966 and annually thereafter.

The decree further provides:

Said second deed of trust is a Second Mortgage and shall be filed and placed of record by the Clerk of this Court after the filing for record of the first mortgage of plaintiffs executed in favor of the Kansas City Life Insurance Company.

The record shows that on the date on which the decree was filed, the Clerk of the Circuit Court of Hamilton County issued to plaintiffs a receipt for the following items:

(1) a check in the amount of $71,720 payable to defendants.

(2) a promissory note executed by plaintiffs, to the order of defendants.

(3) a second mortgage, also described as a second deed of trust.

As described in the receipt, the note and mortgage appear to conform to the provision of the decree, but neither the note nor mortgage were offered in evidence.

The parties have briefed and argued a number of issues, but the sole question presented in the record before us is whether plaintiffs pleaded and proved a contract sufficiently definite and certain in its terms to be specifically enforced.

In Cefalu v. Breznik, 15 Ill2d 168, at page 170, 154 NE2d 237, the Supreme Court said: “To entitle a party to specific performance the contract must be so certain and unambiguous in its terms and in all its parts that a court can require the specific thing contracted for to be done. (Morey v. Hoffman, 12 Ill2d 125.) The manner or method of payment is an essential part of an agreement for the purchase of real estate, and the contract must specify not only the price but the terms and conditions of the sale. (Morey v. Hoffman, 12 Ill2d 125; Zakrzewski v. Fisher, 278 Ill 557.) Where there is ambiguity, doubt, or uncertainty with respect to its terms, equitable enforcement by specific performance will be denied.”

The provision in the option for a deed of trust does not state by whom the deed of trust is to be executed, the amount of the first mortgage to which it is to be junior, nor by whom the first mortgage is held. It does not fix the date of the deed of trust, and the provision for equal payments does not state whether these are to be made monthly or annually.

(4) In Cefalu v. Breznik (supra) the Supreme Court said: “Thus we have repeatedly held that where the contract contemplates the giving of a mortgage for part of the purchase price but is uncertain with reference to the due dates or other terms thereof, the purchaser will not be entitled to specific performance.”

In our opinion the agreement does not meet the requirement that it be certain and unambiguous. Where no restriction is imposed as to the amount of a first mortgage, the identity of the makers of a junior lien and the collectibility of a deficiency judgment might become matters of prime importance. In view of the failure to provide with specificity who was to make the mortgage, the date of its execution, and the precise manner of payment, the contract is not sufficiently definite and certain in its terms to entitle plaintiffs to specific performance. Olson v. Forsberg, 332 Ill 266, 163 NE 697.

The effect of the decree was to make a contract for the parties, supplying dates and times for payment not set out in the option. There is no evidence to support a finding that a first mortgage was to be executed in favor of Kansas City Life Insurance Company or any other mortgagee, nor as above stated, is there any evidence as to the amount of the first lien. As said by the Supreme Court in Rampke v. Beuhler, 203 Ill 384, at page 387, 67 NE 796, “In specific performance of a contract the province of the court is to enforce the contract which the parties have made, and not to make a contract for them and then enforce it.”

For the reasons herein set forth, the decree of the Circuit Court of Hamilton County is reversed and the cause remanded with directions to dismiss the complaint for want of equity.

Judgment reversed and cause remanded with directions.

MORAN and EBERSPACHER, JJ., concur.


text:
    Myrtle Timmerman, Plaintiff-Appellant, v. Ivan Wilson, Defendant-Appellee, and Marvin D. Wilson and Carl Pankey, Defendants.
    Gen. No. 65-100. (Abstract of Decision.)
    Fifth District.
    August 31, 1966.
    Listeman, Bandy & Hamilton, of East St. Louis, and N. Murry Edwards, of St. Louis, Missouri, for appellant; Loy & Cochran, of Fair-field, for appellee.
   Opinion by JUSTICE MORAN. Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Edward Henry, Defendant-Appellant.
    Gen. No. 10,717. (Abstract of Decision.)
    Fourth District.
    August 25, 1966.
    Jeffrey C. Taylor, of Decatur, for appellant; Basil G. Greanias, State’s Attorney, of Decatur, for appellee.
   Opinion by JUSTICE SMITH. Not to be published in full.


author: CRAVEN, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Edwards, Jr., and Robert Charles Webb, Defendants, John Edwards, Jr., Defendant-Appellant.
    Gen. No. 10,729.
    Fourth District.
    August 25, 1966.

      Summers, Watson & Kimpel, of Champaign, for appellant.
    Ralph Glenn, State’s Attorney, of Charleston (L. Stanton Dotson, of counsel), for appellee.
   CRAVEN, J.

After a jury trial, the defendant was found guilty of conspiracy to escape and aiding escape. An indeterminate sentence of 1-4 years was imposed on the conspiracy charge and a definite sentence of one year “to the Illinois State Penitentiary” on the aiding to escape charge, both sentences to run concurrently. The defendant, by this appeal, urges errors in the circuit court and contends, as a matter of law, that conspiracy is the inchoate offense of aiding escape and that he could not have been convicted both of the inchoate and principal offense. Error is also assigned with reference to the Instructions given and refused and the failure of the court to declare a mistrial when, during the trial, certain exhibits that had been received into evidence disappeared. It is also contended that there was a failure to prove the defendant guilty beyond a reasonable doubt.

The undisputed facts in this case show that one Robert Webb, a codefendant in this proceeding below, was found to have eight hacksaw blades in his possession while in the Coles County jail. These blades were found the day after Webb had appeared at his arraignment on a felony charge for which he was then being held. Webb’s mother and her sister, Bertha Jackson, were present at the arraignment, together with the defendant Edwards. There is dispute as to the rest of the evidence.

The defendant testified that he brought Webb’s mother and aunt to the arraignment at their request. He stated that, after the arraignment, Webb sat down with the group but that there was no conversation other than that relating to the “bad chow” at the jail. The defendant testified that he did not give anything to Webb and did not see anyone else give anything to Webb.

Mrs. Lois Webb testified that she gave her son several candy bars and further stated that she saw the defendant Edwards hand her son two or three cellophane envelopes on the way back to the jail. This testimony was corroborated by Bertha Jackson. Mrs. Webb was impeached by a sworn statement relating that the defendant had not given her son anything.

Webb testified that nothing was said between the defendant and himself about the hacksaw blades or escape. He did testify, however, that the defendant handed him eight hacksaw blades while Webb was returning to jail. He stated that he denied the defendant gave him the blades until he was called to trial on the original charge for which he was being held. Thereafter the witness Webb acknowledged writing a letter to the State’s Attorney stating that his earlier statement was false. One William Webb, a cellmate of Robert’s in the Coles County jail, testified that he saw Robert remove the hacksaw blades and the candy bars from his pockets and saw Robert hide the blades under the mattress of his bed. Chapter 38, § 8-5, Ill Rev Stats 1965, provides that no person shall be convicted of both the inchoate and principal offense. The principal offense of conspiracy to escape is escape. The defendant could not be convicted of escape because he was not in custody and that offense is so defined (c 38, § 31-6, Ill Rev Stats 1965). Here the defendant was not charged with the principal offense of escape but with conspiracy to escape and aiding in escape. These are distinct and separate offenses as defined by statute. One not in custody, and thus incapable of the offense of escape, may, nevertheless, be convicted of conspiracy to escape. The fact that one is legally incapable of committing the substantive offense does not exclude his conspiracy conviction if one conspirator has capacity to commit, the offense. 16 Am Jur2d, Conspiracy, § 17, at p 136.

Turning now to the defendant’s assertion that the proof is insufficient to support either charge, we cannot agree. The testimony, as related, was the subject of impeachment and inconsistency. From that testimony, however, the jury was warranted in concluding that the defendant did pass the hacksaw blades to Webb and thus conveyed something for use in escaping, as that phrase is used in defining the offense of aiding in escape.

As to the proof of the conspiracy, it is well-settled that the gist of the offense is the unlawful combination or agreement. People v. Nathanson, 389 Ill 311, 59 NE2d 677(1945); People v. Walter, 23 Ill App2d 129, 161 NE2d 707 (1959). The acts subsequent to the alleged conspiracy may inferentially establish the agreement. People v. Brinn, 32 Ill2d 232, 204 NE2d 724 (1965). It has been held that no precise written or spoken words establishing the agreement need be proven to establish the conspiracy. People v. Fedele, 366 Ill 618, 10 NE2d 346 (1937); People v. Walczak, 315 Ill 49,145 NE 660 (1924).

In this case, the evidence is undisputed that the defendant did not speak to Webb about the hacksaw blades or about any plan of escape. Failure of proof of a verbal or written communication is not fatal, however, if an understanding or concert in will can be established indicating a common design on the part of the accused and others to act in pursuance of a common criminal purpose. People v. Brinn, 32 Ill2d 232, 204 NE2d 724 (1965), and cases there cited. The evidence of the concealed passing of the hacksaw blades by the defendant, together with the acknowledged acceptance and concealment by Webb, is sufficient to inferentially establish the unlawful concert in mind between Webb and the defendant. Here the conspiracy is established admittedly by inference, but conclusively, and the jury was warranted in finding guilt.

The defendant argues that a mistrial should have been declared because of the disappearance of the hacksaw blades from the custody of the court after they had been marked and admitted into evidence. The cases in support of the defendant’s contention relate to reversals in civil cases where a litigant was denied the right to submit certain exhibits to the jury. The court notes that these exhibits were introduced by the State over the defendant’s objection; therefore, the defendant is not in a position to claim prejudice because of the disappearance of exhibits he considered damaging to his case. There being no showing of prejudice, we must conclude that the trial court was correct in denying the defendant’s motion for a mistrial.

The defendant raises the court’s failure to give defendant’s Instructions 2, 3, 4 and 6 as a basis for a new trial. Instructions 2 and 3, tendered by the defendant, relate to reasonable doubt and presumption of innocence. While these instructions are not inaccurate or improper statements of the law, they state only the defendant’s side of these rules. We find these rules of law to be fairly and adequately presented in the People’s Instructions 9, 19 and 20. The defendant is not entitled to repetitious instructions which lend undue emphasis to a particular element of the case. People v. White, 308 Ill 210,139 NE 58 (1923).

Defendant’s Instruction 4 relates to the testimony of the defendant and states that:

“The Court instructs the Jury that you have no right to disregard the testimony of the defendant through mere caprice or because he is the defendant. The law makes him a competent witness.”

This was adequately covered in defendant’s Instruction 5, which, in part, stated:

“You should judge the testimony of the defendant in the same manner as you judge the testimony of any other witness.”

While this may be a good instruction under certain circumstances, it is not one which the defendant is entitled to as a matter of right where the subject is covered in a companion instruction.

The court refused Instruction 6 which stated that the jury must acquit the defendant where “there arises from the evidence two theories equally consistent, one pointing to the guilt of the Defendant and the other to the theory that he is not guilty . ...” A similar instruction was considered by the Supreme Court in the case of People v. Johnson, 317 Ill 430, 437, 438, 148 NE 255 (1925), wherein the court made the following observation with respect to this type of instruction:

“These instructions are argumentative and obscure and were properly refused for that reason. Instruction No. 2 assumes that this case is one of a class of cases in which there are two or more theories consistent with the evidence, — one on which the defendant could be found guilty and one on which he could be found not guilty, — and instructs the jury that it therefore becomes their duty to find the defendant not guilty because of the presumption of innocence. If the evidence is capable of a reasonable explanation consistent with the innocence of the defendant there can be no theory on which a verdict of guilty can be based, because if the evidence is consistent with innocence it cannot be said that guilt is proved beyond a reasonable doubt. In order to justify a conviction the evidence must not only be consistent with the guilt of the defendant but it must also be inconsistent with his innocence. If the evidence is equally consistent with guilt and innocence the defendant is entitled to the presumption of innocence and the verdict must be not guilty, but there cannot be two theories of the evidence, one of which would justify a verdict of guilty, the other a verdict of not guilty. The proposition on which this instruction is based, — that there may be two theories of the evidence, one justifying an acquittal and the other a conviction, — is without foundation and the instruction was properly refused.” . . . See also People v. Long, 407 Ill 210, 95 NE2d 461 (1950).

The above instruction was properly refused.

The sentence of one year to the Illinois State Penitentiary for the aiding escape charge is error in that the statutory penalty for this offense specifically provides imprisonment in a penal institution other than the penitentiary not to exceed one year. In addition to that defect, however, one course of conduct is the basis for both sentences. For the reasons stated by this court in People v. Ritchie, 66 Ill App2d 302, 213 NE2d 651 (1966), the sentence for the lesser offense should not have been imposed and must be reversed.

The judgment and sentence of the circuit court as to Count I of the indictment, charging conspiracy, is affirmed. The judgment and sentence of the court on that count of the indictment relating to the charge of aiding in escape is reversed.

Affirmed in part and reversed in part.

TRAPP, P. J. and SMITH, J., concur.