author: MR. PRESIDING JUSTICE DAVIS

text:
    In the Matter of the Estate of George B. Garrett, Deceased. Lucille Loftus, Public Administrator, Petitioner-Appellee, v. Sherman S. Garrett, Respondent-Appellant.
    Gen. No. 66-101.
    Second District.
    March 21, 1967.

      E. M. Sullivan, of Amboy, and Franklin, Flynn & Palmer, of Champaign, for appellant.
    Tobias G. Garry, of LaSalle, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is a citation proceeding which appears to have been filed under sections 183-186 of Article XV of the Probate Act (111 Rev Stats 1965, c 3, pars 183-186), by the administrator of the Estate of George B. Garrett. The petitioner prayed that Sherman S. Garrett, respondent, be cited to appear before the court to testify regarding certain personal property, books of record, papers, evidence of debt or title to lands in his hands or about which he may have information, which property, according to the petitioner’s belief, belonged to the decedent or his estate; that the respondent be compelled to answer the questions propounded to him; and that “the proper order of this Court be entered upon such examination if it be found that such described property is the property of George B. Garrett,” or his estate.

It appears that George B. Garrett, who had been in a nursing home for several years, died October 20, 1962, at the age of 87 years and left him surviving an adopted son, whose whereabouts is unknown. The decedent’s next closest relatives were his nephew the respondent, and his niece Louise Bauer, the respondent’s sister. The respondent and his sister appeared to have taken care of the business affairs of the decedent during the last years of his life.

In March of 1947, the decedent deeded an 80-acre tract of farmland to the respondent and respondent’s sister, reserving unto himself a life estate therein. On October 6, 1961, the decedent withdrew the sums of $7,392.93 and $10,082.60, respectively, from savings accounts in two banks, and an undisclosed amount from a third bank. These sums were then deposited in accounts in the name of the respondent and respondent’s sister.

On October 6, 1961, the decedent also deeded an additional 40-acre tract of land to respondent and respondent’s sister, again reserving unto himself a life estate therein; and on November 1, 1961, the decedent assigned and delivered to the respondent and his sister certain stock certificates having a value of approximately $59,-200. The respondent immediately commenced to liquidate these stocks. The monies, securities and real estate constituted substantially all of the assets owned by the decedent.

The respondent does not claim that these properties were turned over to him as his own property, but rather, that they were transferred under oral directions: first, that he care for the decedent by paying the expenses of his maintenance, last illness and burial; and then, that he distribute the remaining balance in a certain designated manner. The balance to be distributed totalled $77,000. The sum of $1,000 was to be distributed to non-family recipients; $10,000 to Louise Bauer; and $66,000 to twelve persons — all of whom were children and grandchildren of the respondent and his sister. The respondent testified that the amounts distributed to each of the twelve persons were designated by decedent. There was no written evidence pertaining to such directions.

It further appears that after the death of the decedent, the respondent did distribute all of the funds to his children and the children and grandchildren of Louise Bauer. The distributions were made by depositing the funds in savings accounts, all of which were in Indianapolis banks, with the exception of one account in a Chicago bank. The distributions were purportedly made in this manner because the recipients lived throughout the country, and the respondent wanted to put the money in a bank not convenient to them — to make it “a little difficult to run in and draw out a few dollars.” Aside from the real estate, it appears that there now remains in the possession of the respondent only $500 in currency from the assets which he received from the decedent.

The trial court found that no trust was created between the decedent and the respondent and the respondent’s sister, due to the lack of certainty relative to the various material terms essential to a valid trust; that no valid gift was made; and that the respondent was simply an agent for the decedent and held the funds not expended during decedent’s lifetime in a constructive trust for the decedent’s estate. It ordered that the respondent render an account to said court of the property owned by the decedent and transferred to the respondent during the decedent’s lifetime; and that the respondent pay over and deliver to the administrator of the decedent’s estate, all of the said monies, securities and property, or the proceeds of the sale thereof, and the income therefrom, including the real estate, not used for the care of the decedent or in payment of his obligations or funeral expenses.

The respondent contends that the trial court went too far in trying the title to the various items of property in question since there was an absence of necessary parties before the court — the persons to whom such property had been distributed. He further contends that the sole issue was whether he had in his possession any property belonging to the decedent; that the evidence indicated he had distributed such property in good faith; and that the statute was not intended to impose liability on one who has transferred such property in good faith and no longer is in possession thereof.

Section 183 of the Probate Act provides a means of relief for each of two disjunctive, and perhaps unrelated, situations. It provides that upon the filing of a verified petition, the court shall order a citation to issue for the appearance of any person whom the petitioner believes (1) to have concealed, converted, or embezzled or to have in his possession or control any personal property, books of account, etc., or evidences of debt or title to lands which belonged to a person whose estate is being administered therein, or to his estate or personal representative, or (2) to have information or knowledge withheld by the respondent from the personal representative and needed for the recovery of any personal property by suit or otherwise. Subdivision (1) of the section contemplates the actual recovery of personal property belonging to the estate, including the determination of questions of title and rights of possession, all as permitted under section 185 of the Probate Act. Subdivision (2) has as its purpose the discovery of information.

The statute thus contemplates two distinct types of proceedings, one merely in the nature of discovery and the other a truly adversary proceeding in which the right and title to personal property may be contested with optional jury trial on demand, and with power in the court to determine all questions of title, claims of adverse title and the right of property, and to enforce its judgments by execution or contempt proceedings. Keshner v. Keshner, 376 Ill 354, 359, 360, 33 NE2d 877 (1941); In re Estate of Curley, 43 Ill App2d 389, 391, 392, 193 NE2d 607 (1963); Kahn, What Every Lawyer Should Know About . . . Discovery and Recovery Citations in the Probate Court, Vol 44, Ill BJ 202, 203, 204 (1955).

We agree with the respondent that if the petition sought only information, the court could not then try the question of title to the various properties and order them turned over to the estate. The citation procedure permitted by Article XV affords a simple, comprehensive and summary method of invoking the aid of the court. While courts are liberal in the procedures they permit to be followed under these sections, an order must still be based upon an issue established in the pleadings. Such requirement is imperative so that the respondent may know the issues which he will be called upon to defend before the court. Broberg v. Mann, 66 Ill App2d 134, 137, 138, 213 NE2d 89 (1965); Moser v. Feciura, 324 Ill App 552, 556, 58 NE2d 920 (1945); In re Estate of Shanks, 282 Ill App 1, 13 (1935).

The petition recited that petitioner believes that the respondent “has in his possession or control” certain personal properties, including deeds to real estate, belonging to said decedent or his estate which the respondent wrongfully withholds; and that the respondent has knowledge or information regarding certain properties which may be essential to the recovery of said property. The prayer of the petition was not only that the respondent be compelled to appear and give whatever information he had, but also that the court enter a proper order if it be found that the property is that of the estate. This petition was sufficient to apprise respondent that more than mere information was sought in the proceeding, and that as to any personal property within respondent’s possession or control, petitioner also sought its recovery. We believe that the petition was sufficient to sustain the order of the trial court insofar as it directed the respondent to deliver to the administrator that personal property which was still in his possession or control, to-wit: the $500 in currency.

Beyond this, however, the order of the trial court went too far. According to the testimony of the respondent, all of the remaining assets derived from the decedent had been distributed to other persons. The order of the trial court found that these assets and the proceeds of the sale or transfer thereof, together with the income therefrom, as well as the income from the 120 acres of farmland in question, were the property of the decedent. It directed the respondent to account therefor, and to pay and deliver to the administrator of the decedent’s estate said items of property or the proceeds thereof, and the income therefrom, as well as the farm income, not expended for the care, support and funeral expenses of the decedent. Yet, the petitioner did not seek an accounting, and none of the recipients of such property, or the proceeds thereof, were made parties to the proceeding.

It is fundamental that one may not be deprived of his property, or have a judgment rendered against him —which is the effect of the court’s order — without having an opportunity to be heard. In re Estate of Rackliffe, 366 Ill 22, 26, 7 NE2d 754 (1937); In re Estate of Shanks, supra, 12. The procedural aspects of due process and equal protection of the laws require that a person be given notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case. Pettigrew v. National Accounts System, Inc., 67 Ill App2d 344, 350, 213 NE2d 778 (1956). Insofar as the court purported to direct the respondent to render an account with reference to said property, or the proceeds derived therefrom, or the income therefrom, and to pay over or deliver those items which were no longer in his possession or control, but purportedly had been distributed to others, the order was entered under proofs, without allegations in support thereof, and was erroneous. Stowell v. Satorius, 413 Ill 482, 490, 109 NE2d 734 (1953); Wilson v. Wilson, 56 Ill App2d 187, 194, 205 NE 2d 636 (1965); Larson v. City of Loves Park, 48 Ill App 2d 191, 193, 198 NE2d 525 (1964).

We do not mean to be understood by this to suggest that petitioner is without a remedy. These proceedings are designed to provide a comprehensive and summary remedy for the discovery and recovery of property of the decedent which is found to be in the possession of others. Where, as here, information is obtained, from a person cited to appear before the court, that the property in question is within the control of others, a supplemental petition, or petitions, may be filed to recover such property. (Ill Rev Stats 1965, c 110, par 39.) The persons who have possession or control of the property are necessary parties to such supplemental petition or petitions if the court is to determine questions of title, claims of adverse title and the attendant property rights. In addition, if the petitioner seeks an accounting or claims the real estate in question, allegations in support of such relief must be asserted. An accounting cannot be ordered without allegations in support of such action and title to real estate cannot be adjudicated on an allegation that the respondent has in his possession deeds to real estate which deeds belong to said decedent.

Under section 9 of the New Judicial Article (111 Const, § 9, art VI) the Circuit Court has unlimited original jurisdiction of all justiciable matters, and the heretofore limited jurisdiction of the Probate Court has now been superseded by the unlimited original jurisdiction of the Circuit Court. Consequently, the complete determination of Article XV proceedings now lie within the competence of the Probate Division of the Circuit Court, subject, to Court Rules. In re Estate of Breault, 63 Ill App2d 246, 270-272 inch, 211 NE2d 424 (1965). Plenary actions in the Equity Division of the Circuit Court for an accounting or for the adjudication of title to real estate are not now required. Such actions may proceed in the Probate Division of the Circuit Court.

Historically, under our Constitution of 1870, the Probate Court was a court of limited jurisdiction and had no jurisdiction over an accounting proceeding or an action to try title to real estate. Sims v. Powell, 390 Ill 610, 617, 62 NE2d 456 (1945). Such limitation was removed by section 9 of the New Judicial Article.

Without attempting to prejudge what may be presented to the trial court by way of a supplemental petition or petitions, or to suggest who should be named as respondents therein, or the theory or theories upon which the right to recover should be predicated, or to indicate the defenses thereto, we do feel obligated to chart a course of procedure upon the return of this case to the trial court. Upon remandment, the petitioner, in her discretion, may file a supplemental petition herein against the respondent or against the distributees of such property, or against all of such parties, on the theory of wrongful conversion of the decedent’s property, or on any other theory or theories which she deems appropriate. Dependent upon the facts adduced, such distributees may, or may not, be subject to the jurisdiction of the court under section 17 of our Civil Practice Act (111 Rev Stats 1965, c 110, par 17), and the respondent may, or may not, be guilty of converting the personal property irrespective of the fact that it is no longer in his possession or control. Ill Rev Stats 1965, c 3, pars 183, 185; Keshner v. Keshner, supra, 359; In re Estate of Porter, 43 Ill App2d 416, 424, 425, 193 NE2d 617 (1963); In re Estate of Shanks, supra, 10. Upon proper allegations in such petition, subject to asserted defenses and the proof adduced, the court has jurisdiction to adjudicate title to the real estate in question and order an accounting.

The present respondent herein, and any additional parties who are named as respondents in the supplemental petition, shall be given adequate opportunity to answer such petition and to interpose such affirmative defense or defenses as he or they may desire. Upon issue being drawn, the court should then conduct a full hearing on such issues and enter such judgment as may be proper in view of the issues drawn by the pleadings and the evidence adduced.

For the reasons we have indicated, that part of the order or judgment of the trial court directing the delivery by respondent to the administrator of the properties still within the possession of the respondent, to-wit: the sum of $500 is affirmed; the remainder thereof is reversed and the cause remanded for further proceedings consistent with the views expressed herein, subject to the ultimate factual situation as established by the evidence.

Affirmed in part and reversed in part, and remanded.

MORAN and BURT, JJ., concur.


source: Caselaw Access Project

author: ALLOY, J. STOUDER, P. J.

license: Public Domain

text:
    Dorothy Klinkenberg, Individually and as Administratrix of the Estate of Harold R. Klinkenberg, Jr., Deceased, Plaintiff-Appellee, v. Virginia M. Horton, Defendant-Appellant.
    Gen. No. 66-34.
    Third District.
    March 22, 1967.

      Isador I. Katz, of Rock Island, for appellant.
    Charles M. Ferguson, of Rock Island, for appellee.
   ALLOY, J.

This is an appeal from a judgment in favor of plaintiff Dorothy Klinkenberg in a wrongful death action as against Virginia M. Horton, defendant. There were two counts in the complaint, one of which sought recovery for funeral, medical and hospital bills by Dorothy Klinkenberg individually, and the other count by Dorothy Klinkenberg as administratrix sought recovery for pecuniary loss to Dorothy Klinkenberg and the three minor children of decedent. The jury returned a verdict in favor of Dorothy Klinkenberg individually for $20,200 and in favor of Dorothy Klinkenberg as administratrix of the estate of Harold Klinkenberg, deceased, for $1,890.-57. The jury was directed, thereafter, by the trial court, to amend its verdict so as to correct it, and in doing so awarded $1,890.57 to Dorothy Klinkenberg individually and $20,200 to Dorothy Klinkenberg as administratrix of the estate of decedent. Judgment was entered on the amended verdict.

The record in the case discloses that Harold Klinkenberg, the decedent, was riding on a motorcycle in a southerly direction on Route 67 which is a four-lane arterial highway running north and south in Milan, Illinois. Defendant Virginia Horton was driving an automobile at the intersection of Route 67 and 12th Avenue West. The collision occurred on the evening of May 11, 1964, between 8:30 p. m. and 9:00 p. m.

Route 67 has two lanes for northbound traffic and two lanes for southbound traffic, which dual lanes are separated by a center grassy median area or strip. 12th Avenue West is an access road. Traffic entering Route 67 from 12th Avenue West is required to stop. Stop signs were located at the intersection. Traffic crossing either the north or southbound lanes by way of the road across the grassy median strip were required to yield the right-of-way to vehicles on Route 67 by signs placed there which read “Yield Right-of-Way.”

The record shows that the night was dark and decedent Harold Klinkenberg had his lights on and had just passed through a State Police headlight check. He was traveling in the most westerly or righthand lane for southbound traffic on Route 67. He had stopped for a red light a few hundred feet from the scene of the collision. He then went up a long gradual incline from the place where he had stopped to the place of collision. There were no obstructions to the view of vehicles on the highway at the time. There was a conflict in the evidence as to the speed at which Harold Klinkenberg was traveling and the manner in which he was operating the motorcycle.

Defendant Virginia Horton was crossing Route 67 east to west by use of the road across the median strip between the north and southbound lanes at 12th Avenue West. The record indicates that she did not stop when she reached the southbound lane but proceeded at a slow rate of speed. The evidence was conflicting as to whether under the circumstances she failed to yield the right-of-way to decedent. The evidence was also conflicting as to where the impact of the collision actually occurred, whether it was on Route 67 or on 12th Avenue West.

On appeal in this Court, defendant contends that the evidence was not sufficient to support plaintiff’s verdict on the ground that there was no evidence tending to show exercise of due care by plaintiff’s intestate and that the verdict was against the manifest weight of the evidence in finding that defendant was negligent. Defendant contends that judgment should be entered notwithstanding the verdict or a new trial granted on this ground.

It is also contended that the trial court committed reversible error in the giving of certain instructions on behalf of plaintiff. It is further contended that the trial court committed error in rulings on the evidence during the trial, and in permitting plaintiff’s counsel to make prejudicial arguments to the jury, and also erred in refusing to allow defendant’s counsel to poll the jury and in directing the jury to amend its verdict.

On the issue of whether the verdict was contrary to the manifest weight of the evidence and whether there was sufficient evidence of due care on part of plaintiff, we have frequently stated that a reviewing court will not substitute its judgment for that of a jury in passing on the weight and credibility of conflicting testimony and that for a verdict to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent (De Legge v. Karlsen, 17 Ill App2d 69, at 75, 149 NE2d 491). The evidence in this case conflicted as to the facts and the question of whether or not the decedent was guilty of contributory negligence and whether or not defendant was guilty of negligence proximately causing the death of decedent were questions for the jury and such jury’s determination would not be disturbed by this Court on review in state of the record (Mueth v. Jaska, 302 Ill App 289, 294, 23 NE2d 805; Stowers v. Carp, 29 Ill App2d 52, 172 NE2d 370).

The problem of major concern on appeal in this Court arises from defendant’s contention that there was reversible error in the giving of plaintiff’s Instructions Nos. 16 and 17 over defendant’s objection. Plaintiff’s tendered Instruction No. 16 which was given by the court was submitted in the following language:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided:
“ ‘The driver of a vehicle in obedience to a yield right-of-way sign shall reduce the speed of his vehicle to not more than 20 miles per hour and shall yield the right-of-way to other vehicles which have entered the intersecting highway either from the right or left or which are approaching so closely on said intersecting highway as to constitute an immediate hazard; but said driver having so yielded may proceed at such time as a safe interval occurs.’
“ ‘If a driver is involved in a collision at an intersection or interferes with the movement of other vehicles after driving past a yield right-of-way sign, such collision or interference shall be deemed prima facie evidence of the driver’s failure to yield right-of-way.’
“If you decide that a party violated this 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 such party was negligent before and at the time of the occurrence.”

The record discloses that at the conference on instructions, counsel for defendant specifically objected to the second paragraph of the instruction in the portion of the statute quoted which stated that if the driver is involved in a collision at an intersection or interferes with the movement of other vehicles after driving past a yield right-of-way sign, such collision or interference “shall be deemed prima facie evidence of the driver’s failure to yield right-of-way.”

As we have indicated previously, the question of where the collision actually occurred was controverted and was one for the jury to determine. In the state of the record the use of the instruction containing the expression “prima facie evidence” could be misleading and prejudicial (Johnson v. Pendergast, 308 Ill 255, 139 NE 407). If the facts in the record had disclosed an unquestioned or relatively unquestioned factual situation, the use of the full language of the statute in such instruction might not be misleading and might not be the basis for reversal. As has been indicated in a number of Illinois cases, statutory violation construed as prima facie evidence of negligence does not in itself establish a prima facie case of liability since the element of proximate cause must still be proved (Ney v. Yellow Cab Co., 2 Ill2d 74, 78-79, 117 NE2d 74), and other evidence may rebut such prima facie evidence by proof that, under all the circumstances of the case, the violation of the statute did not amount to negligence (Stivers v. Black & Co., 315 Ill App 38, 42, 42 NE2d 349; Miller v. Burch, 254 Ill App 387, 390-394).

In the Illinois Pattern Jury Instructions Volume of Civil Instructions which was prepared by the Illinois Supreme Court Committee, the draftsmen had occasion to consider the particular issues in sections 60.00 and 60.01. Section 60.01 contains comments of the draftsmen in which they point out that violation of a statute or ordinance is not negligence per se but only prima facie evidence of negligence (Burke v. Zwick, 299 Ill App 558, 20 NE2d 912), and that such prima facie evidence may be rebutted by a showing that, under all the facts and circumstances of the case, the violation did not constitute negligence (this is likewise treated in § 60.00). Accordingly, the authors point out that the violation of a statute or ordinance is but one fact to be taken into consideration by the jury along with all the other facts and circumstances in determining the issue of negligence. Use of the phrase “prima facie evidence” has been avoided specifically in the recommended instructions, primarily because it is not a phrase which is easily understood by a jury (Johnson v. Pendergast, 308 Ill 255, 139 NE 407; Harris v. Piggly Wiggly Stores, Inc., 236 Ill App 392).

The Appellate Court in Harris v. Piggly Wiggly Stores, Inc., 236 Ill App 392, was considering an instruction relating to speed where the statutory provision was to the effect that such speed would be “prima facie evidence that the person so operating such vehicle is running at a rate of speed greater than is reasonable and proper.” The Appellate Court in such case stated, at Page 399:

“In Stansfield v. Wood, 231 Ill App 586, opinion by Mr. Justice Heard, the giving of this instruction was held to be erroneous. It was also criticized in Johnson v. Pendergast, 308 Ill 255, on the ground that it was doubtful whether the ordinary juror would understand the legal meaning of the term ‘prima facie,’ and that the instruction was equivalent to advising the jury that if defendant violated the statute, negligence was proved. While the facts in these cases are different from those before us, they both hold that the rule as to what constitutes prima facie evidence as found in this statute is a rule of law for the guidance of the court, and not a rule in the law of evidence to be given to the jury. (Chamberlayne on Evidence, 994.) Ordinarily the giving of an instruction in the language of the statute is proper; but, following the above-cited cases, we hold that the giving of this instruction in this case was reversible error.”

It is noted that the court in such case emphasized that the rule as to what constitutes prima facie evidence of violation as specified in the statute, is a rule of law for guidance of the court and not a rule of law of evidence to be given to the jury. The same language is used in Johnson v. Pendergast, 308 Ill 255, at 263, 139 NE 407.

As indicated in the case of Harris v. Piggly Wiggly Stores, Inc., 236 Ill App 392, ordinarily instructing in the language of the statute would not constitute reversible error. The use of the term “prima facie,” however, on the basis of the evidence presented in the record before us, implies that the collision or interference would be deemed prima facie evidence of the driver’s failure to yield the right-of-way. Since there was a conflict of evidence as to the exact place where the collision occurred, such instruction could have been prejudicial and misleading to the jury. The first part of the instruction as tendered and the latter part were proper but the inclusion of the sentence which refers to the “prima facie evidence” was improper and requires reversal. Instruction No. 17 objected to, sought to define “prima facie” and obviously would not be given on a retrial of this cause.

In view of our conclusion as to the erroneous character of Instruction No. 16 referred to, we do not deem it necessary to discuss the other errors defendant contends are shown by the record involving rulings on evidence, asserted prejudicial arguments, polling of the jury and amendment of verdict. It is unlikely that such matters would recur in the retrial of this cause. We also find it unnecessary to consider the motions filed in this cause which were taken with the case for consideration.

This cause will, therefore, be reversed and remanded to the Circuit Court of Rock Island County for retrial.

Reversed and remanded.

CORYN, J., concurs.

Special Concurring Opinion

STOUDER, P. J.

I concur with the result reached in the majority opinion, namely that Plaintiff’s Instruction No. 16 is prejudicial and erroneous. However I do not agree with the reasoning employed by the majority opinion to reach this result.

No argument is made that the statute involved is one which the legislature was without power to enact. We are therefore, assuming the propriety of the statute, compelled to question under what circumstances the statute may be given the effect intended by the legislature. It is obvious that the legislature intended some consequence to flow from the fact of a collision at an intersection or the fact of interference with the movement of other vehicles after driving past a yield right-of-way sign. This consequence, the legislature states, shall be to establish prima facie evidence of a violation of the statute. What effect should be given this declaration of the legislature ?

To suggest, as does the majority opinion, that where the evidence is in conflict, the statute should not be given effect whereas if the evidence is not in conflict the statute should be given effect merely begs the question. If the relationship between two facts is such that the existence of fact one leads to a conclusion of the existence of fact two, this relationship does not change merely because there may be a dispute as to the existence of fact one. Civil liability for negligence may not be predicated solely on the violation of a statute since this would, as stated in the majority opinion, ignore the element of proximate cause. If an instruction in the language of the statute leads to this implication that instruction must be prejudicial and erroneous. However criminal responsibility may be predicated upon a statutory violation. Indeed in a criminal procedure this is the sole issue. If the statute is violated, criminal responsibility follows as an inevitable consequence.

Chapter 95%, 111 Rev Stats 1965, commonly known as the Motor Vehicle Code, is primarily concerned with the establishment of rules and conduct in the operation of motor vehicles and their enforcement by criminal procedures. Therefore, it appears to me that prior court decisions, the comments of the drafters of the Illinois Pattern Instructions and the legislative intent may all be given effect if the instruction complained of be limited to cases in which the violation of the statute is the single issue to be resolved.


author: JUSTICE MORAN.

text:
    Jane E. De Biase, et al., Minors, by Their Father and Next Friend, Donald T. De Biase, Plaintiffs-Appellees, v. Donald D. Moza, Defendant-Appellant.
    Gen. No. 66-79.
    Second District.
    March 17, 1967.
    Tom L. Yates, of Chicago, for appellant; Harold W. Wynkoop, of Chicago, for appellees.
   Opinion by

JUSTICE MORAN.

Not to be published in full.


author: MR. PRESIDING JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Capon Washington, Defendant-Appellant.
    Gen. No. 50,906.
    First District, Fourth Division.
    March 22, 1967.
    Rehearing denied April 24,1967.

      Sam Adam, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Crime Charged

Unlawful sale of a narcotic drug.

Defense at Trial Entrapment.

Judgment

After a bench trial, defendant was found guilty and sentenced to a term of ten years (the statutory minimum) to ten years and one day.

Contentions on Appeal

(1) Entrapment.

(2) The State failed to prove that the substance sold was a narcotic.

(3) The trial court committed reversible error in not requiring a State witness to exhibit her arm during cross-examination on the question of her freedom from addiction.

(4) The court erred in refusing to exclude from the courtroom, on defendant’s motion, the police officer in charge of the case, who testified on behalf of the State.

Evidence

Barbara Lumpkin, for the State.

At approximately 2:30 a. m. on September 23, 1964, she met police officer Pates at 47th and Evans Streets, Chicago. After agreeing to Pates’ request that she “make a buy,” she was taken to a lockup where she was searched, found to have no narcotics on her person, and given some marked and prerecorded money for which she signed a receipt. Pates then drove her to 43rd and Vincennes Streets where she contacted defendant at his cabstand. She asked defendant if she could “make a buy” and he acquiesced. There followed the exchange of money passing to defendant and a package passing to her. Upon her request, defendant then drove her to 45th and Wood-lawn where the two parted company. At that location she met Officer Pates and gave him the package which defendant had given to her. She then accompanied Pates as he followed defendant’s cab to the latter’s house at 43rd and Langley where the arrest was subsequently made.

She had formerly been a user of narcotics but had not taken a “shot” in six or seven months. She had known defendant for several years but had not talked to him for a day or more prior to the transaction in question.

Henry Pates, for the State.

He was a police officer assigned to the narcotics section of the Chicago Police Department. He met Barbara Lumpkin at 2:30 a. m. on September 23, 1964. As a result of the conversation they had at that time, Miss Lumpkin accompanied him to the Women’s Lockup where she was searched by the matron. He then gave her $50 in prerecorded and fluorescent-coated five-dollar bills, and drove her to defendant’s cabstand where she got out of the car. She had a conversation with defendant, and Pates then saw her hand something to defendant and he handed something to her. She got into defendant’s cab and he drove, followed by Pates, to 45th and Woodlawn. There, she was let out of defendant’s cab and returned to Pates’ car where she handed him five tinfoil packages of white powder. He made a field test of the powder which indicated the presence of heroin. Pates, with Miss Lump-kin, followed defendant to his house at 43rd and Langley where, after a wait of about ten minutes, Pates knocked on defendant’s door, announced his office, and made the arrest. Defendant’s hands showed traces of powder when Pates shone his fluorescent light upon them. A search of the room revealed thirty dollars of the prerecorded and marked money. Defendant told Pates at the time of the arrest that “he was selling narcotics because he was trying to buy a new cab.”

Miss Lumpkin was a narcotics addict and a paid police informer. Pates customarily gave her money from time to time, and had given her money for her service in regard to the offense charged here.

Capon Washington, defendant.

In the two-month period preceding the day of the offense, he had been seeing Miss Lumpkin socially three or four times a week. He met her at about 11:00 p. m. on September 22, 1964, in response to her call. She was in a sweat and “looked frantic.” She said she needed some dope. At first he refused to help, but upon recognizing how ill she was, he agreed to aid her. He went to 47th Street where a dope addict referred him to a man known as Billy Williams. Williams sold defendant a “package” for thirty dollars, and defendant returned to Miss Lumpkin and presented her with the package. He then drove to her requested destination and she got out of the cab. At that time she gave him thirty dollars. He went back to the cabstand until 3:30 or 4:00 o’clock, got tired and went to his home. He undressed and relaxed for about an hour when Officer Pates appeared at his door.

Defendant denied his guilt and further denied making a statement to Pates that he was selling narcotics to earn money for a new cab.

Opinion

(1) Defendant contends that the evidence established the defense of entrapment as a matter of law, relying principally upon Sherman v. United States, 356 US 369, and Sorrells v. United States, 287 US 435. Entrapment was clearly recognized as a defense in Sorrells, where the court stated that for entrapment to exist, the idea of the offense must have originated in the mind of a government agent without whose trickery, persuasion, or fraud the defendant would not have committed the offense. In Sherman, the opinion of the court reaffirmed the theory of Sorrells to the effect that the function of law enforcement “does not include the manufacturing of crime.” The court raised a caveat, however, when it said (at page 372) that, “[t]o determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.”

Four justices concurred in the Sherman result as expressed in the opinion of the court, but considered that the Sorrells theory was unsound. Speaking through Mr. Justice Frankfurter, they were of the opinion that the nub of entrapment was whether the facts of the particular case revealed that police conduct had achieved a level which fell below the standards deemed proper in the exercise of governmental power, and that it was irrelevant to ask in whose mind the intention to commit the offense had been conceived. Defendant in the instant case contends that under either view espoused in Sherman, he was entrapped as a matter of law, but suggests that the Frankfurter view is the more enlightened approach. We are not at liberty to consider this latter view, however, since in Illinois our legislature has declared the public policy in this regard, defining entrapment as follows:

A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated. Ill Rev Stats 1963, c 38, § 7-12.

This statute is but a codification of the majority principle found in Sherman, and in the Illinois cases which have expressed the same reasoning. People v. Hatch, 49 Ill App2d 177, 182-183, 199 NE2d 81.

Defendant relies heavily on the Sherman case, arguing that the fact situation there is analogous to the facts before us. In Sherman, a government informer and defendant first met at a doctor’s office where both apparently were being treated to cure narcotics addiction. The men exchanged common experiences with each other and, eventually, the informer asked defendant if he was aware of a good source of narcotics. Defendant expressed a reluctance to aid the informer in obtaining the drugs. Only after repeated requests made by the informer on a number of different occasions did defendant agree to share his narcotics source with the informer. Defendant was then arrested, after several small sales of narcotics to the informer. In finding that the defense of entrapment had been established, the court predicated its conclusion on the government informer’s reprehensible preying on a narcotics addict who was attempting to rehabilitate himself, and on the fact that numerous requests on separate occasions were necessary to overcome defendant’s reluctance to supply the narcotics.

In the case at bar there is a conflict in the evidence as to the lapse of time between the moment s Miss Lumpkin asked defendant for the narcotics and her receipt of the contraband. According to her testimony, defendant responded to her request without hesitation, and there followed an immediate exchange of a “package” for money. Defendant testified that “ [a]t least an hour and a half” elapsed between the time he was asked for the narcotics and the time he was able to procure them for Miss Lumpkin. Even if we were to accept defendant’s version of the facts as true, against the secretive background of the narcotics trade, a ninety-minute interval seems to us a sufficiently short period of time to demonstrate a ready willingness on defendant’s part and easy access to unlawful narcotics. People v. Toler, 26 Ill2d 100, 102, 185 NE2d 874, cert den 374 US 813; People v. Gonzales, 25 Ill2d 235, 239, 184 NE2d 833, cert den 372 US 923. Accepting, then, the rule of the Sherman case as the applicable law in Illinois, we find it and other federal cases cited by defendant to be factually distinguishable from the instant case. Morales v. United States, 260 F2d 939 (6th Cir, 1958); United States v. Landry, 257 F2d 425 (7th Cir, 1958). It is also suggested by defendant that Miss Lumpkin’s use of her friendship with him to accomplish a purchase of narcotics is conduct equally reprehensible to that which existed in Sherman. An appeal to friendship, however, does not in itself establish entrapment as a matter of law. People v. Lewis, 26 Ill2d 542, 546, 187 NE2d 700; People v. Hall, 25 Ill2d 297, 185 NE2d 143.

Turning to other Illinois cases dealing with the defense of entrapment, we note that People v. Strong, 21 Ill2d 320, 172 NE2d 765, is a case in which entrapment was explicitly shown, but defendant in the instant case admitted in the lower court that the facts in the Strong case are distinguishable. On the other hand, in People v. Hall, supra, the facts were in some respects quite comparable to those in the case at bar. There, a narcotics addict turned police informer was acquainted with defendant and deceived him by telling the fictitious story that he needed narcotics for himself and the sick wife of a friend. The defense of entrapment was not allowed, the court stating at page 301:

Except for defendant’s claim that he succumbed to a sympathetic appeal to aid two narcotics addicts who were sick, the case is no different from numerous others in which informers have been utilized and the defense of entrapment has been held not to lie. [Citing cases.] However, by defendant’s own testimony, it appears that no undue, prolonged or persistent pressures were exerted against him, such as was true in Sherman v. United States, ....

Defendant emphasizes the fact that his only prior criminal record was a conviction in 1943 for assault with a deadly weapon, and that there is no evidence that he was previously involved in narcotics. It is settled, however, that while a defendant’s past history may be a relevant consideration in determining whether there has been entrapment, it is not controlling. People v. Wells, 25 Ill2d 146, 149, 182 NE2d 689. Similarly, defendant’s initial or temporary reluctance to enter into a narcotics transaction has not been deemed determinative. In People v. McSmith, 23 Ill2d 87, 94, 178 NE2d 641, the evidence showed that defendant on two separate occasions disclaimed any knowledge of where narcotics could be obtained, but on the third meeting accepted cash from the informer and sold the narcotics. The court found “that by his [defendant’s] denials he sought no more than to exhibit the natural caution and hesitancy that could be expected from one engaged in the illegal narcotics trade.” The instant defendant has not, in our opinion, presented as strong a case as that in McSmith.

The narrow scope accorded the defense of entrapment in Illinois does not permit us to find that it was available to defendant in this case. People v. Hatch, 49 Ill App2d 177, 183-184, 199 NE2d 81.

(2) Defendant next contends that there is no evidence in the record that the package which defendant transferred to Barbara Lumpkin contained a narcotic drug, because of a gap in the stipulation concerning the testimony of a Crime Laboratory chemist as to heroin analysis. The State would concede this to be a valid point if proof of narcotic content were limited to the stipulation. People v. Judkins, 28 Ill2d 417, 420-421, 192 NE2d 848. But it is not. Defendant’s testimony at the trial produced several admissions on this subject. He stated that he told Billy Williams that he “needed some dope.” He then related that Williams gave him a package and that he gave the same package to Barbara Lumpkin. Defense counsel concluded his direct examination of defendant with the following questions:

Defense counsel: Have you ever been arrested or convicted of any narcotics violation before this time?
Defendant: No, never.
Defense counsel: Is this the only time you ever sold any dope at all ?
Defendant: I didn’t sell it. I bought it for this girl.
Defense counsel: Is this the only time you have ever been involved in dope at all ?
Defendant: Yes.
Defense counsel: No further questions.

On cross-examination, we find this revelation by defendant :

State’s Attorney: You state Barbara came in and told you she was sick and she was holding her stomach and you went out and you bought narcotics from Billie Williams and brought the narcotics back and gave them to Barbara and you got thirty dollars from Barbara, right? (Emphasis supplied.)
Defendant: Yes.

Further, as mentioned earlier in this opinion, there was the testimony of Officer Pates that at the time of defendant’s arrest he had admitted that he was “selling narcotics” to buy a new cab.

It is clear from the above that defendant was prepared to, and did in fact, rest his case solely on the issue of entrapment. As an experienced defense lawyer, counsel was doubtless aware of a line of decisions establishing the rule that the defense of entrapment is incompatible with a claim that the defendant did not commit the acts constituting the offense charged in the indictment. People v. Realmo, 28 Ill2d 510, 512, 192 NE2d 918; People v. Johnson, 24 Ill2d 195, 197-198, 181 NE2d 164; People v. Van Scoyk, 20 Ill2d 232, 235, 170 NE2d 151. The defense of entrapment, which was the only defense interposed at the trial of this case, loses all its meaning unless it is bottomed on admission of the acts charged. A defendant must be considered as having admitted commission of the acts involved in the offense charged when he invokes the defense of entrapment. United States v. Georgiou, 333 F2d 440 (7th Cir, 1964).

Also of interest, in answer to defendant’s argument about a proof gap, are two cases in which the type of evidence was quite similar to that in the present case, and was held sufficient even without the point relating to inconsistency of the entrapment defense. We refer to People v. Harrison, 26 Ill2d 377, 379-380, 186 NE2d 657, cert den 373 US 928; and People v. Garcia, 52 Ill App2d 481, 488, 202 NE2d 269. We are satisfied that in the case before us there was sufficient evidence to prove the sale of a narcotic drug beyond a reasonable doubt.

(3) Defendant also contends that reversible error occurred when the trial court sustained an objection to defense counsel’s request that Barbara Lumpkin remove her coat and exhibit her arm. Prior to this request Miss Lumpkin had testified that she had not used narcotics in the previous six months. Generally, defense counsel should be given wide latitude on cross-examination to employ any proper method to attack the credibility of a State’s witness. People v. Lewis, 25 Ill2d 396, 185 NE2d 168; People v. Morris, 30 Ill2d 406, 409, 197 NE2d 433; People v. Soto, 64 Ill App2d 94, 99, 212 NE2d 353. In Lewis, one Dantzler, a police informer, made a controlled purchase of narcotics from defendant. Dantzler testified, on direct examination, that formerly he had been a narcotics addict, but that he had not used the drug for a month before the offense nor in the six-month period preceding the date of trial. On cross-examination defense counsel asked Dantzler to remove his coat so that his arm might be examined for indications of narcotic use. The prosecutor’s objection to this request was sustained, however. Such a restriction on cross-examination was held to be reversible error, the court stating at page 399:

Dantzler was the principal witness for the State and the judgment of conviction must stand or fall upon the credibility of his testimony. The defendant was therefore entitled to attack the credibility of Dantzler by any legitimate method, and in our opinion the refusal of the trial court to compel Dantzler to exhibit his arm foreclosed an attack upon his credibility on the ground that he was currently a narcotics addict. In our opinion this error is of sufficient magnitude to require a reversal of the judgment of conviction. (Emphasis supplied.)

Assuming that the court below erred in foreclosing defense counsel’s attempt to impeach Barbara Lumpkin by revealing her to be a current narcotics addict, it would not constitute ground for reversal unless, as pointed out in the quotation from the Lewis opinion, the State’s case would necessarily stand or fall on the testimony of this witness. The question then becomes whether or not the judgment of the trial court can be supported by other testimony in the record. People v. Westbrook, 56 Ill App2d 60, 69, 205 NE2d 511. We believe it can.

Barbara Lumpkin’s testimony may be viewed as affecting two issues in this case. We decided, under our analysis of the question of entrapment, that even if we were to accept defendant’s version of the facts, there would be no validity to the defense of entrapment. Consequently, the credibility of Barbara Lumpkin’s testimony bearing on that issue is not decisive. As to the question of whether defendant transacted a sale of a narcotic drug, we conclude that there is sufficient evidence in the record independent of Barbara Lumpkin’s testimony, to establish defendant’s guilt beyond a reasonable doubt. It is our decision, therefore, that any undue limitation there may have been on the cross-examination of this witness had no essential bearing on the outcome of the case and, thus, would not constitute reversible error.

(4) Finally, defendant urges reversal on the ground that the trial court permitted one police officer (Pates) to remain in the courtroom throughout the trial, in spite of defense counsel’s motion that all witnesses be excluded. It is now settled that the authority to exclude witnesses reposes in the sound discretion of the trial court. People v. Miller, 26 Ill2d 305, 307, 186 NE2d 317; People v. Mack, 25 Ill2d 416, 422, 185 NE2d 154; People v. Jackson, 58 Ill App2d 302, 208 NE2d 385. We consider the practice followed in this case to have been customary and proper, and it is only where there is a clear abuse of such discretion that a reviewing court will reverse on this ground. People v. Dixon, 23 Ill2d 136, 140, 177 NE2d 206. Defendant takes the unique position, however, that the recently enacted Code of Criminal Procedure has withdrawn this discretion from the trial court, and that it is now mandatory for the judge to comply with a defendant’s request to exclude all witnesses. Ill Rev Stats 1963, e 38, § 109-3 (c). Defendant has apparently failed to notice that this section of the statute is instructive only on the matter of preliminary examination and has no application to trials.

Decision

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and McCORMICK, JJ., concur.

       This appeal was first filed in the Supreme Court, but was transferred here on motion of the State. In allowing the motion, the Supreme Court stated that defendant’s contention of entrapment presents no substantial constitutional issue, citing United States v. Bailey, 331 F2d 218, and United States ex rel. Hall v. Illinois, 329 F2d 354.

       Henderson v. United States, 261 F2d 909 (5th Cir, 1958), cited by defendant, appears to reach an opposite conclusion, but, as indicated, this view runs counter to the Illinois decisions on this point.


author: MR. JUSTICE DEMPSEY

text:
    Theodore Kendrick, Plaintiff-Appellant, v. Standard Oil Company, etc., et al., Defendants, and United States of America, Intervenor-Appellee.
    Gen. No. M-50,912.
    First District, Third Division.
    March 23, 1967.

      McCoy, Ming & Black, of Chicago, for appellant.
    Edward V. Hanrahan, United States Attorney, of Chicago (John Peter Lulinski, Lawrence Jay Weiner and Arthur D. Rissman, Assistant United States Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

This is a consolidation of two appeals: Theodore Kendrick appeals from a summary judgment order which held that the United States of America was the rightful owner of a fund deposited with the Clerk of the Circuit Court, and the attorneys for Kendrick appeal from an order dismissing their petition for intervention and for the declaration of an attorney’s lien. Kendrick, a war veteran, was injured in an accident in November, 1959, and was confined in the Veterans’ Administration Hospital at Hines, Illinois, from November 20, 1959, to June 16, 1960. As an honorably discharged veteran he was admitted to the hospital because, at the time of his injuries, he was unable to pay the necessary expenses for medical services. The principal issue concerns the right of the United States (on behalf of the Administrator of Veterans’ Affairs) to recover the reasonable costs of the treatment rendered him during his hospitalization.

The day before his discharge from the hospital, Kendrick voluntarily signed a document entitled “Power of Attorney and Agreement” whereby he transferred to the administrator his claims against any third parties who, because of their tortious conduct, might be liable to him for the cost of his hospital care. On March 20, 1961, he filed a complaint against the Standard Oil Company and Charles and Teddy Tarr to recover for the personal injuries he sustained. Two days later the administrator notified him through his attorneys, and the Tarrs through their insurer, of a lien in the amount of $5,061.98, asserted pursuant to the Illinois Hospital Liens Act, against any proceeds of a suit or settlement arising out of Kendrick’s claim. On September 28, 1964, an agreed judgment of $38,000 was entered against the Tarrs, and by agreement Kendrick took nothing by his suit against Standard Oil.

The Tarrs, stating that they were disinterested parties to the controversy between Kendrick and the administrator, petitioned the court to accept their check of $5,061.98 payable to Kendrick and his attorneys out of the $38,000 judgment and to hold the check until presented with a valid release of the hospital lien or further order of the court. The petition was granted and the check was deposited with the clerk. Kendrick then filed a third-party complaint against the United States alleging that the administrator was not entitled to a hospital lien under the Illinois statute and that the agreed judgment was not intended by the Tarrs or himself to compensate him for the hospitalization costs. The United States moved to dismiss on the grounds of sovereign immunity. Its motion was granted and it then asked, and was given leave, to intervene. Its petition in intervention referred to the agreement entered into by Kendrick, the notice of lien given to the defendants, the entry of the judgment and the deposit of the check with the clerk of the court; and it asserted a lien right and claim to the deposited fund. Kendrick’s answer alleged that he was a veteran entitled under Federal law (38 USC § 610 (1958)) to hospital services without charge, that the assignment of a portion of his tort claim to the administrator was without consideration and was void since it sought to transfer a cause of action for personal injuries, and that the administrator was not entitled to assert a lien under the Illinois statute. The United States moved for summary judgment and its motion was granted.

Kendrick first urges several legal impediments to the administrator’s recovery of the fund: (1) no Federal statute or regulation authorized the administration to request his execution of the document entitled “Power of Attorney and Agreement,” (2) the agreement amounted to an assignment of a cause of action for personal injuries and as such was void under Illinois law and (3) no consideration was given in exchange for his signing the agreement.

Title 38 USC § 610, provides that:

“The Administrator, within the limits of Veterans’ Administration facilities, may furnish hospital care which he determines is needed to—
“(1) a veteran of any war . . . for any . . . disability if such veteran is unable to defray the expenses of necessary hospital care. . . .” (38 USC § 610(a) (1958).)

This section has been construed to require that an honorably discharged veteran who has signed an affidavit that he is unable to defray his hospitalization expenses must receive treatment without charge. United States v. Harleysville Mut. Cas. Co., 150 F Supp 326 (DC Md 1957). It has been held that the administrator lacks authority to devitalize this right in a veteran or to condition its enjoyment by regulation. United States v. St. Paul Mercury Indemnity Co., 133 F Supp 726 (DC Neb 1955).

Federal laws also provide that the administrator has authority to make rules and regulations necessary or appropriate to carry out the laws administered by the Veterans’ Administration (38 USC § 210(c) (1958)) and that he shall prescribe rules and procedures governing the furnishing of hospital care and limitations in connection with the furnishing of such care (38 USC § 621(1), (2) (1958)). Acting under this authority the administrator adopted the following regulation:

“Persons hospitalized . . . who it is believed may be entitled to hospital care or medical or surgical treatment or to reimbursement for all or part of the cost thereof, by reason of statutory, contractual or other relationships with third parties, including those liable for damages by reason of negligence or other legal wrong, will not be furnished hospital treatment without charge therefor to the extent of the amount for which such third parties are or will become liable, and such patients will be requested to execute appropriate assignment or other instrument which will entitle the Administrator of Veterans Affairs — on behalf of the United States — to receive and to collect, directly or as assignee, from third party or parties, to the extent of the amounts for which such third party is liable, the cost of such care and treatment as determined under the applicable rules and regulations. . . . Notice of assignment will be mailed promptly to the party or parties believed to be liable. When the amount of charges is ascertained the bill therefor will be mailed such party or parties, . . .” (16 FR 12093, Nov 30, 1951; 38 CFR, § 17.48(d) (1951).)

The regulation does not purport to authorize collection of the hospital costs from the veteran; it is intended to allow the administrator to recover from any third party liable to the veteran. As the court observed in United States v. St. Paul Mercury Indemnity Co., 238 F2d 594 (8th Cir 1956), the purpose of the regulation is evidenced by its provisions for the taking of an “assignment” by the administrator of any such rights as the veteran may have, for the billing of the third party by the administrator and for the right of the administrator to make collection from the third party. In the instant case the administrator did not demand that Kendrick sign the agreement as a condition to his admission to the hospital or coerce him to sign it before he was discharged. It is undisputed that on the last day of his hospitalization Kendrick was asked to sign and voluntarily did so. The regulation comports with the above cited statutes and so has the force of law. Jones v. United States, 189 F2d 601 (8th Cir 1951). The administrator acted within his authority when he obtained from Kendrick the transference of his claim against his tort-feasors for the amount of the hospital expenses.

Kendrick cites North Chicago St. R. Co. v. Ackley, 171 Ill 100, 49 NE 222 (1898) and Wilcox v. Bierd, 330 Ill 571, 162 NE 170 (1928) in support of his position that the agreement was an assignment of a cause of action for personal injuries and was violative of the public policy of Illinois and void. We believe that the agreement did not violate the public policy of Illinois or Federal policy. The Illinois Hospital Liens Act authorizes a nonprofit hospital which has treated an injured person to recover the amount of its reasonable charges from the third party liable to the injured person; the statute accomplishes this by granting the hospital a lien upon the claims and causes of action of the injured person. HI Rev Stats, (1965), c 82 § 97. A comparable Federal statute, enacted to supplement the existing means of recovery by the United States of the cost of hospitalization it is compelled to furnish, provides for collection from the third party by subrogating the United States to any right or claim which the injured person has against the third party. 42 USC, § 2651 (1963). (In his motion for summary judgment the administrator relied solely on the agreement; he did not utilize the Federal statute because it did not become effective until two and a half years after Kendrick was hospitalized, and he abandoned his claim of a lien pursuant to the Hlinois statute because Federal policy requires that the administrator's method of recovery be uniform throughout the nation. (United States v. Harleysville Hut. Cas. Co., supra.)) It is true that the agreement is drafted in terms of an assignment:

“For a valuable consideration I hereby assign to the Administrator ... to the extent hereinafter indicated, all claims, demands, entitlements, judgments, administrative awards, and the proceeds thereof, and all causes of action which I now have, and which I may have hereafter, by reason of any liability of third parties entitling me to hospital care, or medical or surgical treatment, or to reimbursement for all or part of the cost of any such; or recovery of damages for all or part thereof; including but not limited to claims, or causes of action,
“ (a) for damages by reason of negligence or other legal wrong. . . .
“The extent of this assignment is an amount equal to the total reasonable charges for hospital care. 99

However, the agreement, and the regulation under which it was drawn, in effect provided for subrogation: the administrator was compelled by law to furnish Kendrick with hospital treatment for the injuries for which third parties were liable; Kendrick’s claim was transferred not in full but only to the extent of the reasonable charges for his hospitalization; and this amount was recoverable by the administrator only in the event that Kendrick had a cause of action against the third parties. See Remsen v. Midway Liquors, Inc., 30 Ill App2d 132, 174 NE2d 7 (1961). Consequently, the policy reasons for prohibiting trafficking in causes of action for personal injuries do not apply here.

The next point raised is that no consideration was given in exchange for Kendrick’s execution of the agreement and that it therefore lacked mutuality. Because the administrator was under a legal duty to furnish hospitalization at his request, it is Kendrick’s position that the rendering of services to him was not consideration. But the lack of consideration is not material for the agreement is not a contract. The regulation pursuant to which the agreement was drafted does not empower the administrator to offer hospital treatment in exchange for the veteran’s claim; he is authorized simply to request the veteran to execute an instrument which will entitle him to collect from the third party. A similar procedure for obtaining a transfer of the injured party’s claim is set forth in title 42 USC § 2651(a), supra. In requesting Kendrick to sign the agreement the administrator was following the mandate of the regulation, not making a contract.

Finally, Kendrick argues that even if the administrator is authorized to recover from the tort-feasors, he cannot recover the check deposited with the clerk. It is his theory that the agreement entitled the administrator to recover from the judgment only to the extent that the judgment included compensation for the hospital costs, that otherwise “the recovery would be from him personally in violation of 38 USC § 610, supra. In his third-party complaint Kendrick alleged that among the considerations taken into account in settling his claim for $38,000 was “the lack of ‘specials,’ i. e., the fact that the plaintiff was not obligated by law to pay for medical services rendered because he was a veteran legally entitled to such services. . . .”

The defendants’ liability to Kendrick included general damages and as an item of special damage the cost of his hospital treatment. Chicago City Ry. Co. v. Henry, 218 Ill 92, 75 NE 758 (1905). The fact that the treatment was paid for by the Federal Government did not pro tanto discharge the defendants from liability. Cf. Pittsburgh, C. & St. L. R. Co. v. Thompson, 56 Ill 138 (1870) and Davidson v. Loomis, 282 Ill App 515 (1935). After the defendants’ liability was established, the provisions of the regulation and of the agreement subjected the total amount for which they were liable to the administrator’s claim, with recovery under his claim being limited to the cost of the treatment. The possibility that compensation for the hospital costs was not included in the $38,000 judgment does not mean that the administrator in claiming the deposited fund is obtaining reimbursement from Kendrick. If Kendrick decided to relinquish his right to have the costs compensated by the defendants, it was his decision and not the administrator’s exercise of his right to collect from the judgment which caused the amount of the judgment to be less than the total of Kendrick’s general and special damage claims, and that decision precludes his contention that the administrator is seeking to collect the costs from him.

Three weeks after the entry of summary judgment for the United States Kendrick’s attorneys sought a declaration of their rights to an attorney’s lien on the defendants’ check and petitioned to intervene. The United States answered that their petition was not timely and that the petitioners failed to qualify for intervention under section 26.1 of the Civil Practice Act. (Ill Rev Stats 1963, c 110, § 26.1.) The petition was denied and the attorneys appealed.

The right of intervention under section 26.1 is not unqualified; all of the provisions of that section, including that of making timely application, must be met. Feiertag v. Reichmann, 21 Ill App2d 215, 157 NE2d 818 (1959). The attorneys’ application was not timely. They were notified of the administrator’s claim over two years before trial of the case began. Nine months before the attorneys filed their application the defendants petitioned to have their check held by the court until the claim of the administrator was released. After the entry of the agreed judgment the attorneys presented Kendrick’s argument that the administrator had no right to the fund, and not until after the trial court decided that the administrator was entitled to it did they claim a lien. Their petition was properly denied.

The orders appealed from are affirmed.

Affirmed.

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


author: ALLOY, J.

text:
    Linda Sue Yelm, a Minor, by Joney K. Yelm, Her Father and Next Friend, Plaintiff-Appellee, v. Gurney Masters, Defendant-Appellant.
    Gen. No. 66-49.
    Third District.
    March 29, 1967.

      Claudon & Elson, of Canton, for appellant.
    F. B. Brian, of Toulon, and Black, Black & Borden, of Peoria, for appellee.
   ALLOY, J.

This is an appeal from a judgment of the Circuit Court of Fulton County in favor of plaintiff Linda Sue Yelm, a minor, by Joney K. Yelm, her father and next friend, as against defendant Gurney Masters in the sum of $40,000. The post-trial motion was denied and on appeal in this court, defendant contends the cause should be reversed because the verdict was contrary to the manifest weight of the evidence and reflects passion or sympathy and is excessive; that plaintiff did not sustain her burden of showing due care; that there was a limitation on defendant alone as to the giving of instructions and that an instruction was improperly given; that there was prejudicial evidence improperly showing insurance coverage of the defendant and also that a nonexpert familiar with the handwriting of a witness was erroneously prohibited from comparing a genuine signature with a questioned signature.

The record discloses that Linda Sue Yelm, then 8 years of age, suffered injuries to her person as a result of being struck by an automobile driven by defendant Gurney Masters. The evidence was conflicting as to whether or not plaintiff was in the crosswalk when she was struck by defendant’s car. The accident occurred in the city of Canton at the intersection of South Main Street and Walnut Street, where stop signs were located at all four corners. Linda Yelm had gotten off a school bus and gone across Walnut Street to mail a letter for her sister. She had come from home on a school bus which had unloaded on South Main Street east of the Junior High School. After she had mailed the letter, she intended to go back to school and started to cross the street where she was struck by the automobile driven by the defendant, Gurney Masters, age 24. The evidence indicated that defendant had driven north on Main Street about 8:30 a. m. and had then turned left onto Walnut Street before the impact occurred. The evidence was conflicting as to whether defendant came to a stop at the intersection.

On the issue of injuries to plaintiff, it was apparent that she was an 8-year-old child and in good health at the time of the accident. At the time of the trial she was 15 years of age and had been in the hospital at Peoria, Illinois, on three different occasions after first having been taken to a hospital in Canton, Illinois. The doctor who treated her found her in great pain and suffering with her right leg turned outward with a marked swelling which caused pain with any movement of the leg. He performed an open reduction operation and found that the head of the femur had been pulled from the hip socket and that it had also been separated from the shaft of the femur. The medical testimony was that only a very severe wrenching blow could produce such a result and that such type of injury was very unusual for a child of 8 years. The head of the femur was placed in the hip socket and pinned to the shaft of the femur. It was necessary to make a 10-inch long incision for the open reduction and the incision was sutured following the operation. A cast was applied to the pelvis and right leg. The medical testimony was to the effect that the dislocation of the head of the femur and the fracture from the shaft of the femur caused the growth center to be broken, fractured and separated at the upper end of the femur by cutting off the normal supply of blood. She was seen in the intervening periods between her visits to the Peoria hospital, by her doctor continuously and X rays revealed the loss of the blood supply to the head of the femur. Such loss of blood supply caused limitation of movement at the hip and a continual marked tightness and discomfort. She was subsequently admitted to the Peoria hospital and again an open reduction was made in the same place for the purpose of fusion of the hip. The purpose of the fusion was to limit complete motion in the hip and alleviate pain. A cast was then applied which she wore for four months. The result was a fusion so that the shaft of the femur was continuous with the pelvis. The result of the operation is that no motion of the hip joint, no bending or turning or swinging sideways or inward may be made and the child is only able to walk by swinging the whole pelvis so that the pelvis and femur are used as one bone.

The fracture had also damaged the growth center so that the upper end of the femur did not grow normally on the right thigh. Surgical procedure required removal of a one-inch plug of the bone in the left leg just below the knee and the reinsertion of the plug of bone after rotating it. The purpose was to make the overall length of the left leg conform to the overall length of the right leg. The operations have left a scar on the right femur 10 inches in length and scars on either side of the left leg just below the knee. There is a residual half inch difference in the circumference of the right calf as compared to the left calf of the legs and one inch smaller circumference in the right thigh as compared to the left thigh. There is a three-quarter inch shortening of the right leg as compared to the left leg. There is no movement at the hip because of the fusion referred to. There is also a tilt to the pelvis due to the leg length difference and some curvature of the spine to compensate for the pelvic tilt. The child is restricted in her activities because of the loss of motion of her right hip. The conditions described are permanent. It is also noted that the condition of curvature of the spine will be conducive to arthritis in the future due to the abnormal strain that is thrown on the lower part of the lumbar spine caused by walking with a fused hip joint.

The evidence amply sustained the amount the jury awarded for the permanent injuries referred to. The circumstance that special damages are only slightly in excess of $2,000 is not the determining factor. We note that the mother of the child acted as a nurse for the child for an extensive period thus avoiding expense of special nursing bills. We find no basis for concluding that the verdict resulted from passion or prejudice or that it was excessive and, therefore, find no basis for a reversal or a reduction of the verdict (Schrage v. Allied Paper Corp., 34 Ill App2d 9, 180 NE2d 221).

A special interrogatory was submitted to the jury: “Do you find from the evidence that at the time alleged the defendant Gurney Masters was guilty of negligence which was the proximate cause of the incident complained of?” The jury answered “yes.” There was ample evidence in the record to sustain the finding of the jury. There was also evidence to the effect that defendant did not stop before entering the intersection at Main and Walnut Streets or at the best that he made a fast rolling stop and that when he entered the intersection he was going 25 to 35 miles an hour at the time he struck the plaintiff. The evidence in the record clearly makes it a question of fact for the jury which the jury resolved in favor of plaintiff and as against defendant.

On the question of contributory negligence, such question is likewise preeminently a question of fact for the jury. The plaintiff at the time of the incident was a minor between the ages of 7 and 14. There is nothing in the record to indicate that she was guilty of contributory negligence as a matter of law and the conclusion of the jury that plaintiff was not guilty of contributory negligence will not be disturbed by this court on review (Ritter v. Hatteberg, 14 Ill App2d 548, 554, 145 NE2d 119). Defendant contends that the granting of a continuance at the time the case was called for trial was improper. It appears from the record that a major witness for plaintiff was in a hospital unable to come to the court for the purpose of trial. This continuance was granted on November 8, 1965. The actual trial of the case was not had until April 11, 1966. There is no showing that defendant was prejudiced in the trial by reason of the continuance. As a matter of fact, the record tends to show that defendant filed a supplemental answer to written interrogatories referring to the finding of two additional witnesses as late as January 4, 1966. We find no basis for the contention that the court abused its discretion in granting the continuance (Kehrer v. Kehrer, 28 Ill App2d 296, 171 NE2d 239).

Defendant contends that the trial court arbitrarily refused to consider more than 10 instructions to be tendered by defendant, while not similarly restricting plaintiff and that such conduct constitutes prejudicial error. The record in this cause shows that defendant had first tendered 18 instructions. The trial judge requested that counsel for defendant go through his instructions and reduce the number to 10. Defendant’s counsel reviewed such instructions and thereafter tendered 10 but withdrew 2 of the instructions during the conference on instructions. The plaintiff had tendered only seven instructions. In argument of the post-trial motion in discussing this question, the court reminded counsel, that counsel had tendered 10 instructions and when he went over them counsel had withdrawn two instructions, which counsel agreed was correct. The court then reminded counsel that the court gave him an opportunity to submit an additional instruction and that counsel had indicated to the court that he did not desire to submit any further instructions.

It was apparent that the court felt that 18 instructions under the circumstances of the case were unnecessary and that defendant could go over the instructions and reduce the number without in any manner prejudicing defendant’s position. It was unnecessary for the court to refer to plaintiff on the question of reducing the number of instructions, since the plaintiff had only tendered seven instructions. In Baker v. Thompson, 337 Ill App 327, at 334, 85 NE2d 924, the court indicated that where issues are simple and did not require the giving of 19 instructions, it was proper to limit the giving of an excessive number. Under chapter 110, § 67 (3) (1965 111 Rev Stats, c 110, § 67 (3)), it is specifically provided that “If the number or length of instructions tendered is unreasonable, the court after examining the instructions may require counsel to reduce the number or length thereof.” Since the Illinois Pattern Jury Instructions have been produced (Illinois Pattern Jury Instructions — Civil) the provision of the statute referred to, it appears to this court, can be more readily attained by reducing the number of instructions in appropriate cases. On the basis of the record before us, however, it is apparent that defendant had voluntarily withdrawn certain of the instructions and there was, finally, no rejection of any instructions which were in fact tendered by defendant. While a numerical limitation of instructions is not to be approved as a matter of principle, if the objective of having the jury adequately instructed on a particular theory of the case is attained when the number of instructions are reduced, no prejudice would thereby result. In the case before us, it was apparent that the jury was adequately instructed on defendant’s theory of the case and no prejudice arose from the action of the trial court.

Two instructions were given on the part of plaintiff to the effect that there was in force in the State of Illinois at the time of the occurrence, a certain statute which provided that whenever stop signs or flashing red signals are in place at an intersection or at a plainly marked crosswalk between intersections, pedestrians have the right-of-way over drivers of vehicles such as set forth in the statute (1965 Ill Rev Stats, c 95y%, § 167-§ 70(d)). Another instruction was given in the language of the Illinois Pattern Instruction No. 70.03. The first instruction given was Illinois Pattern Instruction No. 60.01. Each instruction instructed the jury in the language of Illinois Pattern Instruction recommendation and an instruction similar to 70.03 as tendered by plaintiff was actually tendered by defendant. We find no error in the giving of such instructions.

In the course of the trial, witness Weber was questioned as to his identity, the nature of his employment and by whom he was employed. The witness Weber, who apparently was an adjustor for the insurance carrier, was on the stand testifying as to a purported statement given by one of the witnesses for the purpose of impeachment of such witness. He admitted on cross-examination that the writing in the body of the statement was in his own handwriting and was not in the handwriting of the plaintiff’s witness although he stated that the signature was that witness’ handwriting. Defendant had placed the witness Weber on the stand and knew that the questioning might be carried into areas which might be embarrassing to defendant. The cross-examination by counsel sought to develop the interest of the witness in connection with the statement and he was asked for whom he had investigated the specific accident. He answered “for an affiliate of the IAA company.” A further question as to what kind of company the IAA company was, elicited an answer “Illinois Agricultural Association.” He was then asked under whose direction he had taken the statement and named an individual whom he identified as a supervisor for an affiliate of the IAA. He was then asked whether that organization was in operation today, and he stated that it was under another name. When requested to indicate what its present name was he answered “Country Companies.” No further questioning was had on this issue nor was any further pursuit made of the nature of the company or its business.

As indicated in Williams v. Matlin, 328 Ill App 645, at 647, 66 NE2d 719, where there is an attempt to take advantage of an impeaching statement or similar statement taken by a representative of an insurance company, the fact that defendant presents such statement prepared and obtained by an insurer makes material the identity of the person preparing the statement and the nature of his employment for the purpose of showing his interest, if any, in the litigation. In that case the court indicated that the trial court properly denied a motion for a new trial and had in fact erroneously directed the jury to disregard the testimony of the witness as to the identity of the investigator.

It is noted that in the examination of witness Weber, the word “insurance” was never mentioned and that the only objection made to the interrogation of witness Weber was that it was irrelevant. There was no motion made at the close of the testimony nor during any part of the testimony for a mistrial. It was only after the tender of the statement in evidence and after the witness had been excused that there was a motion made for a mistrial. While the motion would have come too late if it had been proper, we feel that there is no basis for reversal in this cause even had the motion been made at the time of the questioning of witness Weber.

Defendant had tendered a local banker who was familiar with the signature of one of the witnesses who testified on behalf of plaintiff for the purpose of proving the signature to the statement taken by Weber. The banker brought with him a savings signature card purportedly containing the signature of the plaintiff’s witness. The banker was then asked to compare this signature on such exhibit with the signature on the statement which was tendered in evidence, and upon objection by plaintiff’s counsel, the trial court refused to permit such testimony. While it is true that a lay witness who is qualified by testifying that he is acquainted with the handwriting of a particular person could compare the disputed handwriting with an “exemplar” in his own mind’s eye and testify whether in his opinion a disputed writing was the writing of the person it claimed to be, such lay witness could not compare a specimen handwriting with a disputed handwriting. Nonexpert witnesses cannot testify as to their opinion as to the genuineness of handwriting based upon a comparison of writing because, as has been pointed out, the jury or the judges are as capable as the witnesses in making tests in that way (20 Am Jur, Evidence, § 841). While the record in fact shows no direct testimony by the banker that the signature on the savings card was the signature of plaintiff’s witness, the ruling of the trial court that such lay person had no better qualification than the jury to make such comparision was proper even if the savings card signature had been so identified.

Since we find no reversible error in the record, the judgment of the Circuit Court of Fulton County will be affirmed.

Affirmed.

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


author: MR. JUSTICE MORAN

text:
    Stephen Norwick, et al., Plaintiffs-Appellees, v. Village of Winfield, a Municipal Corporation, Robert Coombs, President, Claire (Sued Herein as Clara) Jedlovec, Clerk, Rowland (Sued Herein as Roland) G. Morken, Robert Stuart (Sued Herein as Stewart), James Jordan, et al., Defendants-Appellants.
    Gen. No. 66-86.
    Second District.
    March 29, 1967.

      Shehee & Berent, of Wheaton, for appellants.
    Redman and Shearer, of St. Charles, for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court.

Six property owners in the Village of Winfield in Du Page County brought this action seeking a declaratory judgment that a certain ordinance of that Village was void for lack of statutory authority.

The Village in question has a combined waterworks and sewerage system as authorized under section 11-139-1 et seq. of chapter 24 of the Illinois Revised Statutes for 1965. The Village charges a fee of $125 for making connection to its sewer mains. By the ordinance here in question the Village charges an additional fee called a “sewer property charge” of $250 and a “treatment plant charge” of $50 for those applicants who have made written agreements and deposits of $50 with the Village, and a “sewer property charge” of $300 and a “treatment plant charge” of $50 for those applicants who have not made the written agreement and furnished the deposit. The ordinance then provides that the “sewer property-charges” shall be paid into the Waterworks and Sewerage System Construction Fund account to be used and held íor the purpose of constructing improvements and extensions to the sanitary sewer system of the Village.

Counsel for the Village concedes in this court that the so-called “sewer property charges” have no relation to the cost of making connection to the sewers but are held and used for the purpose of constructing future improvements and extensions to the system.

The Village supplied the trial court with a so-called “Feasibility Report” indicating streets in the Village where sewers could be extended at some time in the future, the time being unspecified.

The trial court found that the ultimate issue was the validity of that section of the ordinance which provides for the sewer property charge and the treatment plant charge. The trial court found further that there was no statutory authority for either charge and that the Village did not have a specific plan for the expansion of the system. The trial court concluded that the fund so created was “isolated” for undefined expansion at an undetermined time. Whereupon the trial court declared the section of the ordinance establishing the sewer property charge and treatment plant charge to be void. This appeal followed.

This appears to be a case of first impression in Illinois and we must therefore look to the statute to determine the right of the municipality to make the charges in question. It is horn-book law that Illinois municipalities are creatures of the legislature and therefore have only delegated powers.

Section 11-139-2 (111 Rev Stats 1965, c 24, § 11-139-2) provides in part:

“A municipality owning, acquiring, or constructing and providing for the operation of a combined waterworks and sewerage system may improve and extend that system, and may impose and collect charges or rates for the use of that system as provided in this Division 139.”

Section 11-139-8 (111 Rev Stats 1965, c 24, § 11-139-8) provides in part as follows:

“The corporate authorities of any municipality availing itself of this Division 139 may (1) make, enact, and enforce all needful rules and regulations for the acquisition, construction, extension, improvement, management, and maintenance of the combined waterworks and sewerage system of the municipality and for the use thereof, (2) make, enact, and enforce all needful rules, regulations, and ordinances for the care and protection of such a system, which may be conducive to the preservation of the public health, comfort, and convenience and to rendering the water supply of the municipality pure and the sewerage harmless insofar as it is reasonably possible to do so, and (3) charge the inhabitants thereof a reasonable compensation for the use and service of the combined waterworks and sewerage system and to establish rates for that purpose. Separate rates may be fixed for the water and sewer services respectively or single rates may be fixed for the combined water and sewer services. These rates, whether separate or combined, shall be sufficient at all times to (1) pay the cost of operation and maintenance of the combined waterworks and sewerage system, (2) provide an adequate depreciation fund, and (3) pay the principal of and interest upon all revenue bonds issued under this Division.”

It appears from the legislative scheme that municipalities may extend their sewer systems and may provide for and collect charges for the use of those systems. The charges imposed must be sufficient to pay for the cost of the operation and maintenance of the system, to provide a depreciation fund and to pay principal and interest upon revenue bonds issued for that purpose. It is apparent that the legislature envisioned a pay-as-you-go scheme whereby an individual property owner would pay for his actual use of the system. Charges for the actual use of a system have been sustained and a municipality is not limited to financing local improvements by special assessment or special taxation. Spalding v. City of Granite City, 415 Ill 274, 113 NE2d 567 (1953).

In the case of Spalding v. City of Granite City, ibid., the Supreme Court held valid a sewer connection charge in the City of Granite City even though different rates were fixed for persons in different circumstances. The court held that it was proper to charge connection charges for the actual use of the extension to a sewer system. The name given the charge is of no consequence, the key being whether or not the charge is for actual use or for some undetermined use.

In the case at bar the charge in question is not for actual use of the sewer or for even a proposed use. It is rather a charge for the construction of a sewer system at some future time to serve someone else. If that time ever comes the Village has every right to establish a charge against those persons who will use the sewers constructed at that time, and thereby pay for the cost of such construction. However, the Village has no right, nor is there any authority for a municipality to charge persons for the construction or extension of a sewer which is not even contemplated at the time the charge is made.

Quite to the contrary we have been able to find cases, which by analogy, are in direct conflict with the Village’s theory. In the case of The People v. Bell, 309 Ill 387, 141 NE 187 (1923), our Supreme Court in speaking of a similar situation whereby the school board attempted to accumulate a fund for a future school building, stated at page 389:

“A building tax cannot be lawfully levied when no part of it is needed for the ensuing year and where the levy is made for the purpose of raising a fund for possible future uses. As we understand this record, no part of the building tax was needed for the ensuing year nor was the expenditure of any of it for that purpose contemplated, except for possible future needs.”

In Mathews v. City of Chicago, 342 Ill 120, 174 NE 35 (1930), the court, in discussing the propriety of a levy under the Working Cash Fund Statute, had this to say at page 138:

“It is true that taxes should not be levied for the purpose of accumulating funds for the remote future or for contingencies which may never occur. Taxes are levied because they are necessary to defray the expenses of the government and not for the purpose of enriching the public treasury. The unnecessary accumulation of money in the public treasury is unjust to the people because it deprives them of the use of the money taken from them for a considerable period, and is impolitic, as it may tempt those having the custody of the funds to use them improperly.”

See also, People ex rel. Brenza v. Fleetwood, 413 Ill 530, 551, 109 NE2d 741 (1953), and People ex rel. Brenza v. Morrison Hotel Corp., 4 Ill2d 542, 547, 123 NE2d 488 (1955).

The Village directs our attention to foreign cases. These are of no assistance because of the differences in the statutory provisions of those states. This is particularly true in states with so-called “home rule” municipalities. The Village also urges us to accept the so-called “Feasibility Report” as a plan for the future development of the Village sewer system. This Report merely states that the suggestions are feasible. We assume other sewers in other locations would also be feasible. The Report is not a binding plan in any sense.

We conclude that the Village is simply trying to set up a fund to build sewers at an undetermined place at some undetermined time in the future. The fund is thereby “isolated” as the trial judge very aptly noted. We therefore hold that connection charges may be established and collected for the actual use of an existing sewer or sewer system. Charges not relating to the actual use, such as, charges to provide a fund to build sewers at an undetermined future time and place are unauthorized and therefore invalid.

Judgment affirmed.

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