author: CRAVEN, J.,

text:
    The Department of Public Works and Buildings of the State of Illinois, for and in Behalf of the People of of the State of Illinois, Petitioner-Appellee, v. Marie F. Seeber, Individually and as Trustee, Elizabeth Seeber Murphy, Individually and as Trustee, Kenneth Murphy, et al., and Interstate Research Park, Inc., Defendants, Interstate Research Park, Inc., Defendant-Appellant.
    Gen. No. 10,892.
    Fourth District.
    March 25, 1968.

      Busch, Harrington & Porter, of Champaign (Thomas E. Harrington, of counsel), for appellant.
    William G. Clark, Attorney General of State of Illinois, of Chicago (Harold G. Andrews and Richard E. Quinn, of counsel), and J. C. Williamson, Special Assistant Attorney General, of Champaign, for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

This appeal arises from denial of a post-trial motion for a new trial filed by Interstate Research Park, Inc., a defendant in a condemnation case. Judgment in the amount of $96,000 was entered on the verdict of the jury which allowed compensation of $56,000 for the taking of 16.6 acres and $40,000 for damage to the remainder of 183.4 acres of defendant’s land.

The errors assigned are based on the following:

1. Denial of defendant’s motion to sever the trial proceedings with respect to the parcel here involved from another parcel separately owned by other defendants.

2. During the course of trial, the court denied defendant’s motion to strike the testimony of one of plaintiff’s expert witnesses after cross-examination revealed the foundation upon which his opinion as to the value of defendant’s land was based.

3. Over defendant’s objections, the jury heard evidence of the sale price of an 80-acre tract (referred to by the parties as the Burwash-Bash sale) on the theory it was comparable to the defendant’s property.

4. The defendant also asserts that the damages awarded are inadequate as a matter of law.

There was no error committed in refusing to sever the trial involving defendant’s parcel from another parcel under the circumstances of this case. The authority for trying the cases involving separate parcels of property in the same proceeding is statutory. (Ill Rev Stats 1963, c 47, § 5.) The action of a trial court in denying severance of the trial of parcels situated in the same county and involved in the same project has always been held to be discretionary with the trial court. We find no abuse of that discretion.

The differences between the two tracts of land here involved were not shown to be such as likely to result in confusion in the minds of the jury. There were no facts stated in defendant’s motion which require a severance as a matter of law. It was within the discretion of the trial court, in this situation, to decide that the jury could hear both cases at the same time under the principles announced in Public Service Co. v. Leatherbee, 311 Ill 505, 143 NE 97 (1924); Chicago & N. W. Ry. v. Chicago Mechanics’ Institute, 239 Ill 197, 87 NE 933 (1909); and Waukegan Park Dist. v. First Nat. Bank, 22 Ill2d 238, 174 NE2d 824 (1961). The per-acre price of the jury verdict, as returned, for damage to land taken strongly suggests that the jury logically treated the separate tracts.

No error was committed in overruling the defendant’s motion to strike testimony of the witness Hetishee, a witness for the plaintiff, who testified as to his expert opinion as a real estate broker of the fair cash market value of the Interstate Research Park, Inc. acreage. This witness testified on direct examination that on January 31, 1964, the highest and best use of defendant’s property was light industrial and that the 16.6 acres being taken had a fair cash market value of $42,932; that the difference in the value of the remainder after the taking from its fair cash market value before the taking was $38,514. His opinions were reached after he was employed by the plaintiff to appraise the property in the spring of 1966, and in connection with his employment he was shown pictures of the condition of the property as of January 31, 1964, the date of the taking. He testified concerning natural gas and water lines being present in the park and he remembers seeing the property in January of 1964, as he had driven by on a couple of occasions. He did not know how many feet of streets had been built in the park on January 31,1964. In his cross-examination, he stated his opinion was based, in part, upon two sales referred to by the parties as the “Wornack to French” and the “French to Southwood” sales, which the trial court had previously admitted as evidence in the case involving the other tract but had excluded as inapplicable to the defendant’s tract. That exchange of questions and answers was as follows:

“Q Mr. Hetishee, you have testified that you considered certain comparable sales in arriving at your opinion, would you tell the jury what comparable sales that you considered and based your opinion on in valuing the Research Park tract?
“A Well, I considered all the sales that I had a knowledge of and the general market conditions and the ones that we mentioned on the Campbell tract earlier this morning and then some other sales that I had knowledge of along in the general vicinity.
“Q And did you base your opinion on these sales ?
“A That and the general market conditions, yes, the sales that I mentioned and other sales I had knowledge of.
“Q And in valuing the Research Park tract you based your opinion on the market study and the sales from Burwash to Bash and Wornack to French and French to Southwood, is that a fair statement?
“A That and others.
“Q Those things and other sales you based your opinion on?
“A That and the general market condition and the sales that I had knowledge of.”

From this exchange of questions and answers and in reliance upon our holding in Department of Public Works and Buildings ex rel. People v. Lankford, 65 Ill App2d 133, 212 NE2d 14 (4th Dist 1965), defendant argues that failure of the trial court to grant the defendant’s motion to strike Hetishee’s testimony was prejudicial error. Defendant’s reliance upon our holding in that case is misplaced. Hetishee’s statement that he based his opinion of the value of the defendant’s property on the two excluded sales, the included sale, other unnamed sales and general market conditions does not lead to the conclusion that he used improper elements of damage in arriving at his opinion as to the value of the land taken or the damage to the remainder of the defendant’s tract. The sales he described and the additional sales he did not identify may be a part of the basis of his opinion without being used by him as elements of damage to which he testified. There is no showing that the witness’ opinions as to value included improper elements of damage, nor is there any testimony indicating that he left out any proper elements of damage. The point raised by defendant begs the question, in that it gives too much attention to words chosen by the defendant. Basic common sense requires recognition that an expert witness brings to the courtroom, as a foundation for any opinion expressed in his field of expertise, his accumulated experience gathered in transactions dissimilar and unrelated to the question to be resolved in the proceedings about which he testified, as well as the experience in transactions which he has had which are similar to it. In a general sense, therefore, any expert’s opinion is subject to the criticism here made. The point is, that the testimony of this witness as to value was not shown to be based substantially or totally upon matters and transactions which were so dissimilar or foreign to the situation upon which he was called to express an opinion that his opinion had become irrelevant and of no evidentiary value, or of so little evidentiary value as to be prejudicial to the defendant. As was stated in the Lankford opinion:

“Comparable sales are a standard of comparison which afford a yardstick for an opinion as to value; however, they are not elements of damage. Separate sales must stand or fall as evidence on similarity or dissimilarity between themselves and the subject property. The rule regarding comparable sales is one of relevancy and not unlike the general evidentiary rule applied in all proceedings requiring similarity of conditions. This test is usually left to the discretion of the court in light of the circumstances of each case. City of Chicago v. Vaccarro, 408 Ill 587, 97 NE2d 766 (1951).” Department of Public Works and Buildings ex rel. People v. Lankford, 65 Ill App2d 133, 137, 212 NE2d 14, 16 (4th Dist 1965).

Likewise, there was no error in admitting the evidence of the Burwash-to-Bash sale. The Burwash property and the defendant’s property are shown to have many similar characteristics. Both properties were large acreages, the Burwash acreage being 80 acres and defendant’s acreage being 200 acres. The Burwash acreage was along a state highway route and the defendant’s acreage was on an improved and well-traveled blacktop road known as Fisher Road. Both the Burwash acreage and defendant’s acreage were contiguous to or had available both sewer and water. Both properties were contiguous or near areas already developed. The Burwash property was being used for agricultural purposes and the defendant’s property was being used for agricultural purposes with the exception of two acres. Although the Burwash property was zoned agricultural, which was a holding zoning in the perimeter area, or possibly zoned residential, R-1A, it was acceptable for development for residential, light industry, or commercial. 198 acres out of 200 acres of the defendant’s property were being used for agricultural purposes at the time of the filing of the petition, notwithstanding that its highest and best use was light industry.

As was said by the Supreme Court in the case of City of Evanston v. Piotrowicz, 20 Ill2d 512, 522, 170 NE2d 569, 575 (1960):

“As we have also stated in the past, no fixed or general rule has or could be laid down which governs the degree of similarity that must exist between the properties sold and that condemned to make evidence of the sale or sales admissible; rather, the admissibility of such evidence must in each instance be determined by the trial judge within the proper limits of his discretion. City of Chicago v. Vaccarro, 408 Ill 587, 97 NE2d 766 (1951); Forest Preserve Dist. v. Kercher, 394 Ill 11, 66 NE2d 873 (1946). This court, moreover, has recognized that ‘similar’ does not mean ‘identical,’ but means having a resemblance, and that property may be similar for purposes of fruitful comparison, though each possesses various points of difference. (City of Chicago v. Vaccarro, 408 Ill 587, 97 NE2d 766 (1951), and Forest Preserve Dist. v. Lehmann Estate, Inc., 388 Ill 416, 58 NE2d 538 (1946). Wherever there is a reasonable basis for comparison between the property sold and that being condemned, evidence of the sale is not incompetent, and the dissimilarities between the properties, which are declared to the jury, affect the weight and value of the testimony rather than its competency. Forest Preserve Dist. v. Folta, 377 Ill 158, 36 NE2d 264 (1941); City of Chicago v. Vaccarro, 408 Ill 587, 97 NE2d 766 (1951).”

The damages awarded by the jury are not inadequate as a matter of law. The defendant’s argument on this point is based upon the theory that the minimum verdict of damages to land not taken must be ascertained by totaling the defendant’s cost estimates of improving the land for its highest and best use after the construction of the improvement being condemned for is in place, where the costs of these improvements is raised by the physical presence of the public improvement and the absence of the land taken from the tract being developed. This question has been raised many times in many cases and the answer is that these costs are factors to be considered by the jury but the test of damage to land not taken is the fair market value of the property before the taking compared with the fair market value of the property afterward. Department of Public Works and Buildings v. Caldwell, 301 Ill 242, 133 NE 642 (1922); Department of Public Works and Buildings v. Bloomer, 28 Ill2d 267,191 NE2d 245 (1963).

The defendant’s evidence on this point was relevant as evidence of depreciation in value, but this evidence does not establish a floor for the amount of the jury verdict as stated in the Bloomer case.

“Upon this testimony as a base, the defendants’ argument assumes that each of these items of cost, expense, or inconvenience is directly and independently recoverable. The argument is not sound. As already stated, the measure of recovery for damage to land not taken is reduction in its value resulting from the improvement. Expenditures made and costs incurred in adapting the land to use after the improvement are relevant, if reasonable and economical, as evidence of the depreciation in value, but not as recoverable items in themselves. (Department of Public Works and Buildings v. Caldwell, 301 Ill 242, 247, 133 NE 642 (1922); City of Chicago v. Provus, 415 Ill 618, 114 NE2d 793 (1953); Central Illinois Public Service Co. v. Lee, 409 Ill 19, 98 NE 2d 746 (1951).) . . .” Department of Public Works and Buildings v. Bloomer, 28 Ill2d 267, 272-273, 191 NE2d 245, 249 (1963).

For the reasons expressed, the judgment of the circuit court of Champaign County is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: CREES, J.

license: Public Domain

text:
    Olin Mathieson Chemical Corporation, Plaintiff-Counter-Defendant-Appellee, v. Lyle B. Moushon, Defendant-Counter-Plaintiff-Appellant.
    Gen. No. 10,898.
    Fourth District.
    March 25, 1968.

      Robert Mehrhoff, of Carrollton, for appellant.
    Denby & Dobbs, of Carlinville (Stuart Dobbs, of counsel) , for appellee.
   CREES, J.

This action was brought by the plaintiff to recover the balance of an account for explosives sold to the defendant, which account was not contested and judgment was entered thereon against defendant in the amount of $800. Defendant counterclaimed for $10,000 damages alleging improper use or negligence on the part of plaintiff’s agents in the furnishing and use of the explosives.

Defendant operated a rock quarry. Plaintiff’s agents sold him explosives and prepared and set off a shot. The shot did not break up the rock to the desired extent and defendant was unable to handle most of the rock in his rock crusher. His counterclaim for damages was based on three theories of liability, express warranty, res ipsa negligence and implied warranty. At the trial by the court without a jury, the charges of express warranty and res ipsa negligence were dismissed on motion at the conclusion of counterclaimant’s evidence. The case proceeded on the charge of implied warranty and resulted in a finding against counterclaimant. On this appeal counterclaimant alleges error in both of these rulings.

The evidence showed that plaintiff’s agents told defendant that their explosive was of good quality, that good results would be obtained and he would be pleased with the breakage and the whole operation. The trial court held these to be statements of the seller’s opinion or sales talk rather than matters of express warranty. We agree with this finding. Ill Rev Stats 1959, c 121%, § 12 (now c 26, § 2.313).

It was in evidence that the shot holes were drilled for defendant by another quarry operator. Also, there was a toe, or ledge of rock, extending from the base of the formation. All agreed this toe needed to be and was shot first. The broken rock from the toe was not removed from the main shot and the effect of this rock in the quarry was in dispute. Since these matters were not within the control of counter-defendant res ipsa cannot apply. The quarry was near some high tension power lines and some homes. Because of the possibility of damage to this other property, the shot holes were filled to within five or six feet of the top. There was evidence that the normal procedure is to fill to within two feet of the top of the hole. Defendant testified that he had previously had good results in this quarry. After the shot, it wasn’t possible to examine the eighty shot holes, but there was no evidence that any of the explosive had failed to detonate.

On this evidence, we are left to speculate. It could be that the poor results were caused by the powder failing to measure up to an implied warranty of fitness for the purpose intended. It could also be that the poor results were caused by failing to remove the broken rock from the toe and the loading to within five feet of the top. There is even a possibility that the shot holes were improperly drilled or that a difference in the rock formation was the cause.

We have no evidence in this record that anything was wrong with the explosive except by reasoning backward, i. e., the result was poor; therefore, something must have been wrong with the explosive. In view of the other possibilities this is not enough. Finding no error, judgment is affirmed.

Affirmed.

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


author: CRAVEN, J., TRAPP, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Rose White, Defendant-Appellant.
    Gen. No. 10,918.
    Fourth District.
    March 25, 1968.

      TRAPP, J., dissenting.
    Glenn O. Fuller, Hurt & Fuller, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur, for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

The defendant, Rose White, was indicted for the offense of aggravated battery, entered a plea of guilty to the charge and was placed on probation for a term of four years. The order for probation was entered February 26, 1965. In June of 1965, she was sentenced to two weeks in the county jail for contempt of court upon a finding that she had violated the terms of her probation by committing the offense of disorderly conduct.

On August 1,1966, a “report of violation of probation” was filed by the probation officer of the circuit court of Macon County. This report recited the nature of the original offense, the fact that the defendant was admitted to probation upon the condition, “among others, that she not violate any of the criminal laws of the State of Illinois.” This report then alleged a violation of this stated condition in that:

“she did on July 30, 1966, at 3:40 P. M. at 844 North Mercer Street, Decatur, Illinois, commit the offense of Aggravated Battery in violation of Chapter 38, Section 12-4, Illinois Revised Statutes, 1965, in that she knowingly caused great bodily harm to Samari Spates by shooting him in the leg with a revolver.”

The alleged probation violation was set for hearing on September 8, 1966. The defendant denied a violation of the terms of her probation and denied that she was guilty of the offense of aggravated battery as set forth in the report of violation. At the conclusion of the hearing, the defendant was found to have violated the terms and conditions of her probation. Probation was revoked and the defendant was sentenced to a term of not less than four nor more than five years on the original offense. This appeal is to review the revocation of probation and the sentence imposed.

The defendant urges in this court that the State did not prove by a preponderance of the evidence that she had violated the terms of her probation in the manner set forth in the report of violation and that the trial court erred in placing upon the defendant the burden of showing that the shooting was justified. Further error is asserted to have intervened in this proceeding in that the trial court based the revocation of probation upon alleged violations not set forth in the report of violation. Finally, it is contended that the punishment imposed is excessive and should be reduced on appeal.

At the hearing on the violation report, Eddie Mann was called as a witness on behalf of the People. His testimony, together with that of Bessie Amos, indicates that on July 30, 1966, the defendant, Mann, Amos and the victim Spates were together in a home occupied by the defendant and Bessie Amos. A party had been in progress for some time. Spates became intoxicated and left the home, at the defendant’s insistence, at around 2:00 p. m. His conduct prior to his leaving was characterized as “cursing and raising sin” in front of the defendant’s children. Spates returned at around 3:30. Eddie Mann and Bessie Amos testified that they were in the kitchen and the defendant was in the living room at the time that Spates returned. Neither of the witnesses could see what occurred between the defendant and the victim nor could they testify as to the substance of the conversation between the two. All that the witnesses could establish was that they did hearing a banging at the door and loud voices, followed by a shot. When they left the kitchen and entered the living room, they found Spates lying on the front porch with a bullet wound in his leg and the defendant standing in the living room with a gun in her hand. Spates did not testify.

Rose White testified and related a story to the effect that when the victim returned to her home, he began kicking on the front door; that she went into the bedroom; that he continued kicking on the door, broke the lock and entered the living room. By her version, when he entered he had a knife in his hand and began cursing the defendant; that there followed a mutual exchange of cursing; that he struck at her with a knife twice, missing her on both occasions; that she jumped back, grabbed the pistol and shot him. Her contention was that she shot him because of her apprehension that he was going to cut her with the knife.

Bessie Amos, called as a witness by the defendant, testified that she found a knife on the living room floor after the shooting and had given it to the defendant. Her testimony was that she had not seen the knife prior to the shooting. A police officer testified in rebuttal concerning an interview with Rose White, relating that in his investigation on the night of the event he did not recall any conversation about an attack with a knife, but the officer specifically stated that he made no inquiry about a knife.

Spates, at the time of this hearing, was hospitalized. A motion by the State to take his testimony at the hospital was denied.

The order of the court in this case was that the defendant did commit the offense of aggravated battery in violation of chapter 38, section 12-4, Ill Rev Stats 1965, and probation was revoked.

“Aggravated battery,” as defined in the cited section of the statute, incorporates the definition of the offense of battery, which is defined as including “without legal justification.” The defendant here contends that there is a complete failure of proof of this element of the offense. In denying the motion to dismiss the charge at the close of the People’s case, the court stated:

“The issue of this hearing is whether or not this probationer has violated the terms and conditions of her probation. It is not whether she is guilty of another criminal offense as such, and the burden of proof is this — the nature of the hearing is this — in this court that this court at the conclusion of the hearing could not impose a sentence against the probationer for the commission of the alleged violation, he could only revoke probation and could invoke sentence on the conviction for the original offense. Therefore I think that the procedure is different enough in that the People are not bound to prove all the elements of the offense committed, alleged to have been a violation. They have made out, in my opinion, sufficient proof of a violation of this probation. . . .”

At the conclusion of all the evidence, the court observed that the defendant, “in response to the burden of showing that the shooting was justified, comes forth with what I would term a come-lately defense of producing from somewhere a small knife. ...” As we view this record, the presence or absence of legal justification for the use of force was a question of fact for the trial court to determine as the trier of fact. The trial court could, and clearly did, choose to disbelieve the defendant. By so doing, he determined the absence of any justification for the use of force which was here shown to have been used. See People v. Nation, 73 Ill App2d 438, 219 NE2d 261 (4th Dist 1966).

The sentence is asserted to be excessive. It is clear that upon revocation of probation, sentence may be imposed for the original offense upon the conviction of which the defendant was granted probation. If the act alleged to be a violation of probation constitutes another crime and sentence is to be imposed for the subsequent act, the defendant should be tried for such crime and sentence imposed under the orderly criminal processes. This does not preclude sentence on the original offense and the distinction is drawn so as to obviate any question of double jeopardy. See People v. Morgan, 55 Ill App2d 157, 204 NE2d 314, and cases there cited.

The authority of this court to reduce a sentence must be used with caution and circumspection. People v. Taylor, 33 Ill2d 417, 211 NE2d 673 (1965). Where, as here, however, we find that in the sentencing process there was a commingling of matters relating to the original offense with the conduct allegedly constituting the violation of probation, as well as reference to nonrecord terms and conditions of probation, we feel compelled to scrutinize the sentence. In addition, this sentence offends against the legislative mandate that all sentences be indeterminate, and an indeterminate sentence necessarily presupposes an opportunity for release determination under the Sentence and Parole Act. A sentence of not less than four nor more than five years effectively mitigates against that philosophy. What should be the spread between a minimum and a maximum sentence cannot be determined with mathematical certainty, nor indeed should the spread be subject to a precise and rigid formula necessarily applicable to all cases.

That there should be a substantial spread is obvious. We find ourselves in agreement with the general philosophy as expressed in People v. Brown, 60 Ill App2d 447, 208 NE2d 629 (1st Dist 1965); People v. Jones, 92 Ill App2d 124, 235 NE2d 379 (1st Dist 1968). See also 1966 U Ill L Forum 523, et seq., and ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures 21 (Tent Draft 1967).

Accordingly, pursuant to former section 121-9 of the Code of Criminal Procedure of 1963, now Rule 615 of the Supreme Court Rules (Ill Rev Stats 1967, c 110A, § 615), the minimum sentence in this case is reduced from four years to two years. The maximum sentence imposed remains at five years. With the sentence thus modified, the judgment of the circuit court of Macon County is affirmed.

Sentence modified; judgment affirmed.

SMITH, P. J., concurs.

TRAPP, J., dissents.

TRAPP, J.,

dissenting:

As a dissenting view, the opinion of the court does not state valid reasons for reducing the minimum sentence imposed in this case.

If it be concluded that the record reflects that the trial court commingled the original and subsequent offenses, as well as nonrecord matters in fixing the sentence, it should be vacated and the cause remanded for sentence upon a record which can be properly reviewed.

The opinion states an hypothesis framed by penologists that a spread of years between the minimum and the maximum terms facilitates rehabilitation by extending the period of supervision after parole is authorized. The want of such “substantial spread” of years, standing alone and by itself, is not an adequate reason for reducing the minimum term of this sentence. In People v. Lillie, 79 Ill App2d 174, 223 NE2d 716, it is persuasively stated that adequacy of punishment should be the factor establishing the minimum sentence, while the maximum term is to be derived from the court’s estimate of the time required for successful rehabilitation. Upon this record, it would be difficult to argue that a sentence of 4 to 10 years was excessive under the established standards. The stated hypothesis is not a valid test here.

In People v. Jones, 92 Ill App2d 124, 235 NE2d 379, cited in the opinion, and in Lillie quoted at length in Jones, the court was concerned with minimum sentences considered excessive in the light of the facts of the offense, and the background and record of the defendant. It is strained to project these opinions as authority for proceeding via the stated hypothesis in this case.

Anent the citation of the tentative draft, Standards Relating to Sentencing Alternatives and Procedures, prepared by the American Bar Association Project, the views expressed therein are directed to a statutory structure of standards deemed desirable within which judicial discretion is to be exercised. While an informed view may recommend the suggested standards, our Legislature has not yet provided such statutory structure for the guidance of the trial courts. Further, it is proper to note that the “minimum term” referred to in the cited tentative draft differs in definition from the statutory definition in our Code, i. e., in the former it is used “. . . . to designate the earliest time when discretion can be exercised in favor of parole.”


author: SMITH, P. J.

text:
    Memorial Hospital of Mattoon, a Corporation, Plaintiff-Appellee, v. Dwane Wishard and Norma Wishard, Defendants-Appellants.
    Gen. No. 10,925.
    Fourth District.
    March 25, 1968.
    W. R. Stewart, of Champaign, for appellants.
    William Cherikos, of Charleston, for appellee.
   SMITH, P. J.

Notwithstanding the fact that this record distills itself into a purely academic exercise, the procedural questions presented warrant comment. After service of process on the defendants and appearance by way of a motion to dismiss, the plaintiff moved to dismiss its cause of action and the trial court granted its motion.

Sixty-six days later the defendants filed their motion asking (a) that the judgment of dismissal be amended to add the words “without prejudice” nunc pro tunc and (b) to summarily tax the plaintiff with the defendants’ attorney fees of $90 pursuant to the provisions of Ill Rev Stats 1965, c 110, § 41. This motion was argued by counsel on both sides, the motion was denied, and this appeal is from that denial.

In the record is a purported report of proceedings containing evidentiary matters before the court on the arguments of the defendants’ motion. It is an attempted compliance with Supreme Court Rule 323 (c), Ill Rev Stats 1967, c 110A, § 323, which delineates the procedure to follow if no verbatim transcript of the proceeding is available. This report is simply not properly before us. The record does not show that a verbatim report is not available. The record does not show that within 7 days after the time limitations contained in the Rule the required notice was given that the proposed report would be submitted to the trial court for settlement and approval. The record does not show that the report was ever presented to the trial court. The record does not show that the trial court was ever requested to “promptly settle, certify and ordered filed an accurate report of proceedings.” The purpose of requiring the magistrate to settle, certify and file the report is to lend authenticity, accuracy and truth to what it contains. The report here filed carries the bar sinister on its escutcheon and the procedure here used does not remotely resemble the requirements of the Rule whose terms would permit us to consider the contents of the report.

The order of dismissal was without descriptive adjectives. Was it a voluntary dismissal without prejudice or was it a voluntary dismissal with prejudice? The motion for dismissal was on a printed form apparently in general use in Coles County and is as follows:

“MOTION FOR DISMISSAL OF SUIT
“2. I, the undersigned, having received full payment and satisfaction in the cause of action contained in my complaint against the defendant do hereby move the Court to dismiss this suit.
“Dated this 15th day of May, A.D. 1967.
Memorial Hospital of Mattoon
L. C. Buck
Plaintiff
“ORDER OF COURT
“On this motion of the plaintiff this suit dismissed this 15th day of May, A.D. 1967.
Thomas M. Burke
Magistrate”

And then following on the same printed blank was this language:

“INSTRUCTION TO THE CLERK
“2. If a small claim is filed and the plaintiff receives satisfaction in full prior to the rendering of the judgment, Section 2 of this would be completed and presented to the Court for an order dismissing the suit.”

On this record, it would be pure sophistry to say that the trial court dismissed this suit without prejudice when the document which moved it to act said otherwise. The plaintiff stated in no uncertain language to the court that it no longer had a claim against the defendants; that the purpose of the litigation had been accomplished; and that the suit should be effectively terminated. The plaintiff is bound by these statements. The suit and the cause of action is effectively interred without hope of future resurrection.

At the time of the post-judgment motion, the order of dismissal was more than 30 days old. The judgment of dismissal was then final and, on this record, the defendants do not bring themselves within the remedial provisions of Ill Rev Stats 1965, c 110, § 72. They contend that they received no notice of the dismissal as required by the rules of the Coles County Circuit Court. How failure of the plaintiff to give notice of the dismissal prejudiced the defendants escapes us. Their own first motion requested just this result. They have it. The post-judgment motion of the defendants was properly denied. Having now reviewed the exhumed skeleton of a demised final judgment, we must, as the trial court properly did, leave it in restful repose and repine not.

Affirmed.

TRAPP and CRAVEN, JJ., concur.


text:
    Donald L. Vance, Administrator of the Estate of Larry K. Vance, Deceased, Plaintiff-Appellant, v. Clarke G. Picken, III, Defendant-Appellee.
    Gen. No. 10,926.
    Fourth District.
    March 25, 1968.

      Harold N. O’Hara, of Peoria, for appellant.
    Heyl, Royster, Voelker & Allen, of Peoria, for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

Plaintiff appeals from judgment entered upon a directed verdict in favor of the defendant at the close of the plaintiff’s evidence in the suit brought by plaintiff as administrator of the estate of Larry K. Vance, deceased, under the Wrongful Death Act (Ill Rev Stats 1965, c 70, §§ 1, 2). Plaintiff seeks reversal of said order and a new trial.

The plaintiff’s theory of recovery as stated in the complaint was that Larry K. Vance, while riding as a guest passenger in an automobile driven by the defendant, on October 5, 1965, received injuries in a one-car accident on a rural stretch of Illinois Route 10 about five miles north of Easton in Mason County, Illinois, and that the defendant was guilty of willful and wanton conduct in the operation of the automobile at the time of the occurrence. No eyewitness testimony was offered at the trial and the plaintiff met the prima facie burden of showing the absence of contributory willful and wanton conduct on the part of Larry K. Vance in connection with this occurrence through the testimony of Edward Proehl who testified that the decedent was a person of careful habits in connection with the operation of motor vehicles and farm implements. The trial court directed a verdict in favor of the defendant upon the theory that there was insufficient evidence of willful and wanton conduct on the part of the defendant to make a prima facie case.

The testimony concerning the occurrence came from two witnesses present at the scene after the event. The first was a photographer who identified three photographs of the vehicle at the scene of the accident, showing extensive damage to the right side, complete destruction of the front end and other severe damage to the fatal car. The other witness was the Illinois state trooper who investigated the accident. This officer testified that he was called to investigate the accident which took place approximately one-half mile south of Junction 136 and Route 10 when a black 1957 Ford collided with a cottonwood tree. Tire marks led a distance of 421 feet from the hard surface of the highway along the shoulder to the cottonwood tree which was 12 feet 7 inches to the right of the right edge of the highway upon which the defendant’s vehicle was traveling. A slight drainage ditch, approximately two feet deep, was present in the shoulder of the road between the surface of the highway and this tree. The shoulder was not muddy and was very heavily sodded with bluegrass. After striking the tree, the vehicle traveled at an angle a distance of 34 feet with the left front wheel just off the pavement on the opposite side of the road and the rear of the vehicle closest to the tree and across the center of the highway to within 5 feet 10 inches from the near edge of the pavement. The hub of the right wheel was displaced to a point halfway under the front of the windshield where the windshield joins the top of the car. The motor was pushed back into the driver’s side of the vehicle.

Examination of the tires by the officer disclosed that there was tread on the right front tire, the right rear tire had some tread, the left rear tire had none. The right front tire was blown out when the officer arrived at the scene. There was no evidence of skid marks at the scene and no evidence that brakes were applied. The officer had no opinion as to the speed at which the automobile was traveling.

Other testimony related to the medical cause of death, which was stipulated to be the injuries received in this collision, and testimony from the decedent’s mother who described the contributions of the decedent to the family.

Plaintiff argues that the testimony created a jury question on the culpability of the defendant under the Guest Statute. The test as defined in Pedrick v. Peoria & E. R. Co., 37 Ill2d 494, 229 NE2d 504 (1967), is whether all the evidence, viewed in its aspect most favorable to the plaintiff, so overwhelmingly favors the defendant that no contrary verdict based on that evidence could ever stand.

There is no controversy here about what the evidence was, and such as it was, it is insufficient to create an inference of conduct on the part of the defendant which would impose liability under the Guest Statute. The three charges in the complaint were that the defendant operated his automobile at an excessive rate of speed in a willful and wanton manner; that he failed to take action to prevent the accident after failing to discover the danger through recklessness and carelessness; and that he willfully and wantonly drove the automobile at a high, dangerous and excessive rate of speed. There are numerous possible causes of this accident, some of which are alleged in the plaintiff’s complaint. Others come to mind which are equally likely and for which the defendant would not be responsible, including unexpected mechanical failure, stray animals on the highway, oncoming traffic behaving irrationally, and the ordinary negligent acts of the defendant — all of insufficient gravity to impose liability under the Guest Statute which requires willful and wanton conduct on the part of the defendant.

There is no testimony or evidence which makes one hypothesis more acceptable as a reason for this unfortunate occurrence than any other and, evidence of speed sufficient to make a jury question of willful and wanton conduct, or evidence of conditions which would require the defendant to discover danger or be accused of willful and wanton conduct is totally absent. The circumstantial evidence adduced at the trial of this case does not meet the requirement that the conclusion which can be drawn from that evidence points toward a breach of duty on the part of the defendant of which he is charged. As stated in Celner v. Prather, 301 Ill App 224, 227, 22 NE2d 397:

“Proof of a mere possibility is not sufficient. A theory cannot be said to be established by circumstantial evidence, unless the facts are of such a nature and so related, as to make it the only conclusion that could reasonably be drawn. It cannot be said one fact can be inferred, when the existence of another inconsistent fact can be drawn with equal certainty.”

The plaintiff need not negate all other possible causes of a particular event in order to make a prima facie case, but the plaintiff should introduce testimony which more strongly supports his theory of recovery than it supports inferences to the contrary. The evidence adduced here does not meet this test. It was therefore not error for the trial court to direct the verdict.

For the foregoing reasons the judgment of the circuit court of Mason County is affirmed.

Judgment affirmed.

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


text:
    Chicago, Burlington & Quincy Railroad, an Illinois Corporation, Plaintiff-Appellant, v. Marvin Ommen, Defendant-Appellee.
    Gen. No. 10,911.
    Fourth District.
    March 25, 1968.
    Rehearing denied May 3, 1968.

      Graham and Graham, of Springfield, for appellant.
    Foreman, Rammelkamp, Bradney & Hall, of Jacksonville (Albert Hall and Marc Dahman, of counsel), for appellee.
   CREES, J.

This suit results from a train wreck. Defendant drove onto the track and stalled his auto. The engineer of the train applied the emergency air in an attempt to avoid the collision and the air application caused the derailment of five cars in the freight train. A jury trial resulted in a verdict for plaintiff in the amount of $1,833.49. Plaintiff then took this appeal seeking a new trial on damages only.

At the trial plaintiff offered evidence as to the cost of repairing three cars and the loss on two cars which were damaged to the extent that the cost of repair would be in excess of value. All of this evidence was based upon American Association of Railroads’ Rules for determining value and costs. These rules have been in use for many years and are followed by all major railroads. The formula for determining cost of repairs includes overhead costs. On the basis of Central Illinois Light Co. v. Stenzel, 44 Ill App2d 388, 195 NE2d 207, the trial court denied admission of this evidence and at the close of plaintiff’s case dismissed Count H of the complaint. Count II covered all claim for damages for four cars owned by other railroads. The jury verdict apparently did not allow any sum for the damages to the five derailed cars. The plaintiff had paid to the other railroads involved the damages in accordance with the AAR rules. While an agreement between the railroads cannot bind this defendant, and while we adhere to the rules expressed in Central Illinois Light Co. v. Stenzel, this evidence as to damages should have been admitted. In addition to this evidence, there was testimony by competent witnesses that the five cars had derailed and had been damaged. Also, photographs in evidence showed that the cars had been damaged. On this state of the record, it was error to take this part of the case from the Jury. There was no real dispute in the evidence as to liability and the defendant did not appeal from the finding of liability so a new trial will be ordered as to damages only.

Because of this holding it is unnecessary for this court to rule on the Motion taken with the case. Plaintiff has contended that the refusal of the trial court to admit their Exhibit 35 was error. This Exhibit was a summary of the labor charges in Exhibits 18 through 25, prepared for use in this trial. The supporting Exhibits were identified but were not offered in evidence. While a summary prepared for use in a trial might be admissible as an aid to the Jury in understanding the evidence, when it is based on matter already in evidence, it is not admissible in its own right as a business record. Plaintiff’s Exhibit 35 was not made in the usual course of business nor at the time of the transactions. The trial court properly refused to admit it in evidence.

In view of the necessity for a new trial there is no need to discuss other points raised in the briefs. Affirmed as to liability; judgment in the amount of $1,833.-49 reversed and cause remanded for a new trial as to damages.

Reversed and remanded.

SMITH, P. J. and CRAVEN, J., concur.


author: JUSTICE McNAMARA.

text:
    Henry Sasso, Plaintiff-Appellee, v. George Kita, Defendant-Appellant.
    Gen. No. 51,645.
    First District, Second Division.
    March 26, 1968.
    Sidney S. Altman, of Chicago, for appellant;
    David Brandwein, of Chicago, for appellee.
   Opinion by

JUSTICE McNAMARA.

Not to be published in full.


author: MR. JUSTICE LYONS

text:
    City of Chicago, a Municipal Corporation, Plaintiff-Appellee, v. Bethlehem Healing Temple Church, a Religious Corporation, Defendant-Appellant.
    Gen. No. 51,528.
    First District, Second Division.
    March 26, 1968.

      Frank E. and Arthur Gettleman, and Charles I. Calisoff, of Chicago, for appellant.

      Raymond F. Simon, Corporation Counsel of City of Chicago, of Chicago (Harry H. Pollack, Special Assistant Corporation Counsel, Marvin E. Aspen, Assistant Corporation Counsel, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

In a bench trial, the defendant, Bethlehem Healing Temple Church, a Religious Corporation, was found guilty of violating the Chicago Municipal Building Code as to the five enumerated counts in the City of Chicago’s complaint. The trial court entered judgment accordingly and imposed a total fine of $500 and costs, without allocation to the specified five counts. The defendant appeals only from the judgment order entered on count three which charges failure to install a standard and approved automatic sprinkler system throughout its entire premises pursuant to sections 48-4.3 and 64-1.2 (h) of the Chicago Municipal Building Code.

The record discloses these facts. The defendant owns and maintains a four-story building located at 12-14 South Oakley Avenue in Chicago, Illinois. The first floor contains a church and an auditorium; the second floor, a dining room; the third floor, two meeting rooms and an auditorium; the fourth floor, two meeting rooms. Religious instructions are given to the children of church members on the third and fourth floors of this building.

The classes are held on Wednesdays from 4:00 p. m. to 7:00 p. m. and on Saturdays from 12:00 noon to 5:00 p. m. The instructors are church members who serve without remuneration. They have other gainful, full-time employment. Courses in religious instruction and the study of the Bible are taught to children ranging in age from three to over twelve. Some high school students are in attendance. At any one time on Wednesdays and Saturdays, up to three hundred and fifty children occupy the meeting rooms on the third and fourth floors during their religious instructions. The minimum number of children at any one time is two hundred.

The trial court agreed with the City of Chicago’s contention that part of this building was being used for educational purposes from time to time and hence an automatic sprinkler system had to be installed throughout the defendant’s entire premises pursuant to the Chicago Municipal Code.

The municipal ordinances in issue are:

Section 48-4.3 of the Chicago Building Code: “Assembly units designed or used for educational or institutional purposes shall be classified as Class C-3, Schools. Every School shall be classified as follows:
“Type 1 Schools: Type 1 Schools shall include day nursery schools, kindergarten schools, elementary schools, high schools and other similar occupancies.
“Type 2 Schools: Type 2 Schools shall include colleges, schools for adult education, commercial and vocational schools and other similar occupancies.”
Section 64-1.2(h) of the Chicago Building Code: “Automatic sprinkler systems shall be provided in the following buildings and areas:
“On or before December 31, 1963, in every existing, preordinance building and buildings hereafter erected, two stories or more in height, used in whole or in part as Type 1 School, or used in whole as a Type 2 School. . . .”

In urging reversal of the trial court judgment, the defendant contends: (1) ambiguity is to operate against the party creating it; (2) it is operating a church and not a school on its premises; (3) the statute requiring the use of sprinklers in schools is a new statute, and as a new statute must be strictly construed; (4) penal or criminal statutes should be strictly construed in favor of the accused; (5) municipal ordinance enforcement proceedings are quasi-criminal in nature and the plaintiff failed to prove its case beyond a reasonable doubt.

In response, the plaintiff argues that the defendant is operating a school in its building and under the City’s ordinance, it is required to install an automatic sprinkler system throughout its entire premises.

A municipality has no inherent police power. Rather, its authority to enact and enforce regulatory ordinances in the area of public safety must be derived from a specific statutory grant emanating from the State. The City of Chicago has been delegated a portion of the State’s police power enabling it to enact and enforce regulatory ordinances in the area of building construction. See the Cities and Villages Act, Ill Rev Stats (1963) c 24, § 11-30-4 and § 1-2-1. See also Chicago v. Washingtonian Home, 289 Ill 206,124 NE 414 (1919), in which the municipality’s delegated regulatory police power exercised through an ordinance requiring the installation of an approved automatic sprinkler system in certain enumerated buildings was upheld.

The defendant’s first contention is that these municipal ordinances are ambiguous. It cites the court to treatises on contract law which are not persuasive in a case involving statutory interpretation or construction. The language used in the ordinances under consideration here is not ambiguous. Counsel for both sides agree that this ordinance is enacted and enforced in an effort to prevent a tragic fire such as the one at Queen of Angels Parochial School that claimed approximately one hundred lives of children attending school at the time. The words used by the City Council to effect this legislative purpose are clear and not susceptible to more than one meaning. The regulatory ordinance is applicable only to buildings two stories or more in height, which are used in whole or in part as Type 1 Schools or in whole as Type 2 Schools.

The main issue in this case is not the alleged ambiguity of an ordinance but the legal status of the defendant’s four-story building as either a Type 1 School, and hence within the ordinance, or a church, and hence outside the terms of the ordinance. This is a question of law. Neither party cites the court to any cases judicially defining the word “school” but the plaintiff does provide a definition from Webster’s New International Dictionary, Second Edition, 1944, wherein school is defined, inter alia, as “a building or room given over to instruction.” The defendant’s four meeting rooms on the third and fourth floors which are used for religious instruction twice weekly fall within this definition.

In Weisse v. Board of Education, 178 Misc 118, 32 NYS2d 258 (1941), a “school” was held to be an institution consisting of a teacher and pupils, irrespective of age, gathered together for instruction in any branch of learning, the arts or the sciences. See, to the same effect, State v. Superior Court, 55 Wash2d 177, 346 P2d 999, 1002 (1960). Applying the above definitions to this case, we hold that the defendant is operating a school on the third and fourth floors of its building. Adults acting as teachers are present, systematic instruction is given with each new lesson building on the prior instruction, different classes regularly meet on either Wednesday or Saturday of each week, and anywhere from two hundred to three hundred and fifty children are found at any one time on the top two floors of this building on Wednesdays and Saturdays.

The municipal police power ordinance, intended for public safety, particularly schoolchildren while attending their educational institution, is clearly applicable to the facts of this case. The defendant is operating a Type 1 School encompassed in the term “other similar occupancies” found in section 48-4.3 of the Chicago Building Code. Since its building is two stories or more in height and is used in part as a Type 1 School, the trial court was correct in its judgment that the defendant must install a standard and approved automatic sprinkler system throughout its entire premises.

Assuming, arguendo, that this ordinance is ambiguous and does require statutory construction, this court would reach the same conclusion. It should be noted that section 48-4.3 specifically enumerates examples of Type 1 Schools and then concludes with the phrase, “and other similar occupancies.” Under the rule of statutory construction known as ejusdem generis, the use of the clause or phrase “other” persons or things, immediately following an enumerated listing, means that the word “other” will generally be read as “other such like.” See People v. Capuzi, 20 Ill2d 486, 170 NE2d 625 (1960). The specifically enumerated examples of Type 1 Schools found in section 48-4.3 of the Chicago Building Code all have in common the caring and instructing of children from preschool to high school age (i. e., day nursery schools to high schools), and in all of them, we find an adult acting as a teacher and pupils gathered together for instruction in any branch of learning. Defendant’s educational efforts in the field of religion certainly fall within this ordinance under the concluding words, “other similar occupancies.”

The defendant contends that this is a new statute and also a penal statute since it provides for a monetary penalty. Consequently, it must be strictly construed in its favor. However, in People v. Kirkrand, 397 Ill 588, 74 NE2d 813 (1947), it was held that penal statutes are not to be construed so strictly as to defeat the obvious intention of the legislature. Furthermore, in the construction of a statute, it is proper for the court to look at the evils to be remedied and the objects and purposes to be obtained. A statute enacted to meet a need of the people should be liberally construed in order that the true intent and meaning of the legislative body may be carried out. See Prosk v. Allstate Ins. Co., 82 Ill App2d 457, 226 NE2d 498 (1967). The ordinances in this case are an example of the municipality’s delegated police power, and are intended for the public’s safety. In enacting these ordinances, it was the City Council’s purpose, admitted by respective counsel on oral argument to prevent a disaster such as occurred at the Queen of Angels Parochial School. Hence, the ordinance must be liberally and not strictly construed.

The defendant characterizes municipal ordinance enforcement proceedings as quasi-criminal in nature and contends that the plaintiff failed to prove its case beyond a reasonable doubt. In City of Highland Park v. Curtis, 83 Ill App2d 218, 226 NE2d 870 (1967), it was held that a prosecution for the violation of a municipal ordinance to recover a fine or penalty from a defendant, while quasi-criminal in nature, is civil in form and is tried and reviewed as a civil proceeding and not as a criminal prosecution. The City’s burden of proof in municipal ordinance enforcement cases at the trial level is that of a clear preponderance of the evidence. This rule of law cannot be applied to this case in which the facts are hot in dispute, but rather, the reviewing court is called upon to decide contested issues based upon statutory interpretation or statutory construction, questions of law and not of disputed fact. See Schoenbein v. Board of Trustees, 65 Ill App2d 379, 212 NE2d 380 (1965). The circumstance that the building department might have classified this building as a church (as pointed out by the defendant), whereas the fire department classified it as a school, would not preclude the courts from deciding according to the law pertaining to the facts. Its status is a question of law for the courts, applying rules of statutory interpretation and construction.

This court holds that the defendant is operating a Type 1 School in part of its four-story building within the plain meaning and legislative purpose of sections 48-4.3 and 64-1.2 (h) of the Chicago Municipal Code, and hence must comply with the ordinance. The holding in this case must be limited to the facts of this case. In so holding, it is hot the court’s intention to require sprinkler systems in every church, temple, and synagogue in Chicago holding religious instructions therein. The ordinance is applicable only to buildings of two stories or more used as Type 1 Schools, in whole or in part, or as Type 2 Schools in whole.

For the foregoing reasons the judgment is affirmed.

Judgment affirmed.

BURKE, P. J. and McNAMARA, J., concur.


author: MR. JUSTICE MCNAMARA

text:
    People of the State of Illinois, Appellee, v. George Weaver, Appellant.
    Gen. No. 51,768.
    First District, Second Division.
    March 26, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Edward J. Downs, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE MCNAMARA

delivered the opinion of the court.

In a bench trial, defendant was found guilty of the charges of rape, burglary with intent to commit rape and aggravated battery. He was sentenced to the Illinois State Penitentiary for a term of 2 to 6 years on each count, the sentences to run concurrently. Defendant on appeal contends that the evidence was insufficient to sustain a conviction for any of the crimes charged, and secondly, that the trial court erred in imposing separate sentences for offenses arising from the same conduct. A summary of the facts follows.

The complainant, unmarried and the mother of two children born out of wedlock, testified that on August 7, 1964, at about 10:00 p. m., she went to Henrietta’s Lounge where the defendant bought her a glass of beer. She left there alone and went to Colby’s Lounge where she had one more glass of beer. These were the only two alcoholic drinks she had during the evening. She returned home alone to her apartment at 1521 East 65th Place, in Chicago, about 3:00 a. m. on August 8th. She was awakened about 5:30 a. m. when she felt someone on her bed. She screamed loudly and struggled with her masked assailant who was choking her by holding a piece of cloth across her neck. The assailant kept asking her if she wanted to die and told her he had wanted her for a long time. The assailant’s mask came off during the struggle. When she screamed again, he bit her on the nose. Prosecutrix testified that she observed her assailant closely and recognized him as the defendant. The assailant partially removed her pajamas and forced her to have sexual intercourse with him. He then told her to face the wall threatening to shoot her if she turned around before he departed. She waited a few minutes and then put her pajamas back on. At that moment a neighbor living in the basement apartment, Willard Hamilton, came to her window to ask her for a match. When he saw blood on her face he expressed concern and she told him that George Weaver had raped her. She asked the lady upstairs to call the police. She told the lady upstairs and the police upon their arrival a few minutes later that George Weaver had raped her. She testified she had known the defendant for about two years and that they had lived in the same apartment building for one year. She further testified that he had run errands for her, had babysat for her a few times and had played cards with her. She also testified that before the police arrived she saw the screen lying on the floor of the back porch. She stated that she had checked the doors and windows before going to bed and that this screen was in place when she retired.

Officer Ronald Moore of the Chicago Police department testified that he saw the complainant at about 6:00 a. m. on August 8th. At that time she had marks on her nose and around her neck, blood on her face, and she was crying and shaking. She told him that defendant had raped her. He found the kitchen screen lying on the floor of the back porch and the kitchen window raised. He also stated that he took the complainant to Billings Hospital. It was stipulated that two vaginal smears were taken and that human spermatozoa was found on one smear.

Officer Richard O’Connell of the Chicago Police department stated that on October 25,1964, he received information that defendant was living on the 6700 South Merrill block in Chicago. He arrested the defendant in his apartment. Defendant told him that he knew the police were looking for him for this crime but he denied commission of the offense.

Defendant testified that on August 7, 1964 he went to Henrietta’s Lounge about 10:00 p. m. where he bought a drink for the complainant who was sitting with two men. He left the Lounge at about 4:30 a. m. and went with Charles Blackwell to the Zebra Lounge. After the Zebra closed at 5:30 a. m. the defendant played cards for a short time. He then went to his room, located across the street from complainant’s apartment, quickly changed his clothes and went to work. After finishing work on August 8th he went to the complainant’s apartment building where neighbors told him that the complainant said that he had raped her and that the police were looking for him. Defendant testified that he did not commit the crime and that he had never had sexual relations with the complainant.

Defendant first contends that the evidence was insufficient to sustain a conviction for any of the three crimes. As to the charge of rape, defendant maintains that the State did not prove that the act of intercourse was against the will of the prosecutrix. We do not agree. She testified that she was choked, bitten, threatened with death and overpowered by a masked invader of her home. Witnesses observed the marks and blood on her face and neck, and testified that she was shaking and crying. We cannot comprehend what greater struggle she could be expected to make by way of resistance. Further, the conduct of both parties after the crime clearly indicates that consent was not given. The prosecutrix made immediate complaint of rape against defendant to neighbors and to the police. Meanwhile, defendant fled the neighborhood and was not apprehended for nearly three months. There was sufficient evidence to prove the rape.

As to the charges of burglary, complainant testified that the screen of her kitchen window was in place at the time of her retirement. The police officer and she testified that the screen was lying on the floor of the back porch and the kitchen window was raised after the crime. She also testified that during the assault defendant stated that he had wanted her for a long time. There was ample evidence of unauthorized entry and also of the felonious intent on the part of defendant, and it was sufficient to sustain the conviction for burglary.

Because of our holding as to defendant’s second point, it is not necessary for us to consider the sufficiency of the evidence regarding aggravated battery.

Defendant next contends that the imposition of separate sentences was error since all of the offenses charged to the defendant arose from the same conduct. Section 1-7 (m) of the Criminal Code (Ill Rev Stats, c 38) provides that consecutive or concurrent sentences maybe imposed “when a person shall have been convicted of two or more offenses which did not result from the same conduct.” The Committee Comments to section 1-7 (m) state that if the offenses resulted from the same conduct the defendant may not be sentenced on both, either concurrently or consecutively.

Section 2-4 of the Criminal Code defines conduct as “an act or a series of acts, and the accompanying mental state.” The Committee Comment states that the word “conduct” is used in the sense of “the same transaction” as discussed in People v. Schlenger, 13 Ill2d 63, 147 NE2d 316 (1958).

It seems evident under the facts of the instant case that the aggravated battery and rape resulted from the same conduct. The imposition of separate sentences for these two crimes was improper, and the conviction for the lesser crime of aggravated battery must be reversed. People v. Schlenger, supra; People v. Duszkewycz, 27 Ill2d 257, 189 NE2d 299 (1963).

A more difficult question is presented as to whether the offenses of rape and burglary with intent to commit rape arose from the same conduct. In People v. Ritchie, 66 Ill App2d 302, 213 NE2d 651 (1966), the Appellate Court, Fourth District, under facts and sentencing quite similar to the instant case, affirmed the rape conviction but reversed the conviction for burglary with intent to commit rape, holding that if separate offenses arise from the same conduct defendant may not be sentenced on both, either concurrently or consecutively, citing People v. Golson, 32 Ill2d 398, 207 NE2d 68 (1965). Defendant unsuccessfully appealed the affirmance of his rape conviction to the Illinois Supreme Court. People v. Ritchie, 36 Ill2d 392, 222 NE2d 479 (1967). The State attempted to cross appeal from the Appellate Court decision reversing the burglary conviction. While holding that the State did not have the right to appeal from the Appellate Court decision, the Supreme Court stated:

“The State convincingly argues that the principle set forth in the cited cases is not applicable; that the crimes there charged arose out of a single act, for instance, rape and incest involving the same person, and armed robbery and grand larceny involving the same money, whereas here there are two separate and distinct acts giving rise to separate and distinct substantive offenses.”

We hold that the crimes of rape and burglary in the case at bar are separate and distinct offenses not arising from the same course of conduct, but from two separate and distinct acts. That this is the proper conclusion seems apparent in view of the Committee Comment that the word “conduct” is to be used in the sense of “same transaction” as discussed in the Schlenger case. The Schlenger case involved one act, the taking of money from one person. In order to find that the two crimes in the case at bar amounted to one transaction, it would be necessary to decide that any crime committed by defendant after entry into complainant’s apartment would be part of a single course of conduct. We do not believe that such a construction of section 1-7 (m) of the Code is proper.

The instant case is distinguishable from People ex rel. Starks v. Frye, 39 Ill2d 119, 233 NE2d 413 (1968) wherein our Supreme Court ruled that the trial court erred in imposing consecutive sentences for two charges of reckless homicide arising out of the same conduct. There, the two charges of reckless homicide arose out of the same act, defendant having driven his auto with criminal recklessness in colliding with another auto in which two occupants were killed.

While we agree with the principle that two punishments cannot be imposed for a single act, the State is not restricted to one punishment when the acts are separate and distinct. Accordingly, the convictions for rape and burglary are affirmed. The conviction for aggravated battery is reversed.

Judgment affirmed in part and reversed in part.

BURKE, P. J. and LYONS, J., concur.


text:
    Bernard Klein, et al., Plaintiffs-Appellees, v. Village of La Grange, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 52,088.
    First District, Second Division.
    March 26, 1968.
    Jacob Shamberg and William J. Linklater, of Chicago, for appellant.

      Sidley & Austin, of Chicago (Robert A. Downing and Donald J. Gralen, of counsel), for appellees.
   MR. JUSTICE LYONS

delivered the opinion of the court.

Plaintiffs, Bernard Klein, Orville Rusch and Elvira Rusch, instituted proceedings for a declaratory judgment in the Circuit Court against the defendant, Village of LaGrange, Illinois (hereinafter referred to as the Village) objecting to and requesting declaratory relief from what was alleged to have been the wrongful denial of their application for a special use permit by said Village’s Board of Trustees. The application had proposed the construction of a two-story, 25-suite medical-dental clinic with ample adjacent parking facilities upon the plaintiffs’ respectively owned contiguous and abutting parcels of land, the suggested use to utilize in area approximately 50,000 of the 56,000 square feet made available by their joint enterprise. The site was and continues to be classified within the “A” zoning classification of the Village ordinances (Single-Family Residence District), wherein “clinics” are a prohibited use absent the granting of a special permit by the proper authority.

Plaintiffs alleged by their complaint that the refusal by the Board of Trustees was an “unauthorized, invalid and unconstitutional exercise of power by the Village” for a use of the premises which plaintiffs had “a clear legal right” to establish and maintain under the provisions of the ordinance in question. The Village, by its answer, alleged inter alia, certain matters in special defense to the action, particularly objecting to the purported absence of jurisdiction in the court to compel the issuance of the special use permit. Issue joined, the cause was set down and proceeded to a bench trial.

On January 16, 1967, after hearing considerable testimony and argument, the court below entered its judgment which, among its other findings and conclusions, adjudged the Board of Trustees’ denial of plaintiffs’ special use application as arbitrary, capricious and devoid of substantial relation to the public health, safety and morals, further directing the forthwith issuance of the requested permit and perpetually enjoining the Village from interfering writh plaintiffs in their construction and utilization of the subject property for clinic purposes. It is from the entry of this judgment order that the Village brings its appeal.

Ostensibly, a factual question presents itself on review involving the propriety of the municipally sanctioned denial of the special use application and whether the evidence adduced below adequately demonstrated that the proposed use was one answering to and within the meaning of the term “clinics” as it appears and is made the subject of a specially permitted use in the ordinance’s “A” classification. The court must first consider the Village’s principal contention on appeal; to wit, that the Circuit Court was without jurisdiction to order the allowance of the use and direct the Board of Trustees to issue a special permit accordingly. It presents a somewhat novel question, which if resolved in the Village’s favor, would transcend the otherwise persuasive elements of plaintiffs’ arguments before us, the facts of the case then as they pertain to our disposition on this single issue to be limited accordingly.

The circumstances attendant the instant controversy for such purpose appear relatively undisputed. Plaintiffs are owners of adjoining parcels of land fronting upon the northeast corner of 51st Street and Willow Springs Road (commonly referred to as Gilbert Avenue) in the Village. The combined tract lies entirely within the previously described “A” zoning district. Immediately adjacent said property, to the east and south, is the LaGrange Community Memorial General Hospital, its temporary and permanent parking facilities resting in closest proximity to and offsetting the proposed site of the clinic. Save two additional nonconforming structures (a teen-age club and high school) within two to three blocks north of the subject tract on Willow Springs Road, the surrounding vicinity is predominated by either vacant property or buildings of the single-family residence variety.

“Hospitals and clinics” as the description appears in the Village zoning ordinances, is a prohibited use, accessible only by means of the special use device, in each and every of the various zoning districts as they are defined therein. As to the grant of authority for control in this regard, that ordinance provides:

“The President and Board of Trustees may, by special permit after public hearing by the Zoning Board of Appeals, authorize the location of any of the following uses in any district, subject to such restrictions or safeguards as may be necessary to protect adjacent property, preserve or promote good neighborhood character, and protect the public health, public safety, and general welfare.”
“3. Hospitals and clinics.
“Before issuing a special permit the President and Board of Trustees shall submit the application to the Village Plan Commission and request from said Commission a report upon the effect of the proposed building or use upon adjacent property, the character of the neighborhood, and traffic conditions, utility facilities, and other matters affecting the public health, public safety, and general welfare, and any required restrictions and safeguards. . . .” La Grange Municipal Code (1955) chapter 99, § 13.

In accordance therewith, plaintiffs, on May 4,1965, filed their application with the Board of Trustees, which referred the matter for hearing, findings and recommendations to the Village Zoning Board of Appeals acting as the local Plan Commission. After full public hearings were conducted, the Zoning Board, on June 29, 1965 (as subsequently amended on July 12, 1965, in certain unimportant respects), unanimously recommended that the Board of Trustees issue the permit to plaintiffs for their proposed use of the subject premises as a clinic.

Receipt of same by the Board of Trustees was acknowledged at its meeting on November 22,1965, and agreement being entered at that time to withhold action on plaintiffs’ application pending further study. Thereafter, on February 14, 1966, without further hearings in the matter, the Board of Trustees voted to deny plaintiffs’ special use application “at this time” offering by way of explanation: (1) their desire to inquire into the possible improvements the hospital might make upon its undeveloped property immediately adjacent to the subject site; and (2) the existence of commitments made to local residents involved in the annexation of this area that the properties would be retained in residential development. It was from such denial that plaintiffs successfully prosecuted their declaratory judgment action to the court below, predicated upon the aforesaid impropriety of action by the Village Board of Trustees.

The Village submits that the local Board of Trustees is a legislative body which acted in a legislative capacity in denying application. This it distinguishes from the administrative nature of the Zoning Board of Appeals. It is the thrust of its position on appeal that inasmuch as plaintiffs, by their complaint and proofs, have not sought to in any way impugn the constitutionality of the underlying zoning classification, rather limiting their attack to the arbitrary and capricious manner in which that Board made its rejection, the issuance of such permit having been shown to be one demanding of legislative judgment, the relief granted was by principles of separation of powers beyond the legitimate realm of judicial decree. Plaintiffs argue, on the other hand, that the Village’s authorities connote no such conclusion, but to the contrary manifest the availability of judicial review from the wrongful denial of special use applications without making the suggested distinction. It is important to note at this juncture, however, that plaintiffs neither deny the legislative nature of the board, nor contend that their complaint and proofs endeavored to contest the constitutionality of the “A” classification by the terms of which the attempted utilization of the subject property was prohibited other than to argue that it was erroneously applied by the board.

Concomitant with the undisputed legislative genesis of the body whose conduct is under inquiry, we feel it only fair to initially dismiss from consideration as inappropriate the cases of Columbus Park Congregation of Jehovah’s Witnesses, Inc. v. Board of Appeals of City of Chicago, 25 Ill2d 65, 182 NE2d 722 (1962); Rosenfeld v. Zoning Board of Appeals of Chicago, 19 Ill App2d 447, 154 NE2d 323 (1958) and Illinois Bell Tel. Co. v. Fox, 402 Ill 617, 85 NE2d 43 (1949), each, unlike the case at bar, having involved actions for administrative review or, as to the latter, in the nature of administrative review by certiorari, from adverse orders, in all instances, of the Chicago Zoning Board of Appeals, an administrative agency. The foregoing precedent is of no aid of our present determination, as neither the provisions of the ordinance in question vest in the Zoning Board of Appeals powers of finality (LaGrange Municipal Code (1955) chapter 99, § 13), nor has this matter come to be heard on administrative review.

We have carefully scrutinized the remaining authorities offered on the point and are impelled to conclude that, in absence of some claim to the unreasonableness of the zoning classification’s exclusion of plaintiffs’ proposed use, plaintiffs cannot properly invoke the jurisdiction of the court to assail the propriety of the legislative denial of their special use application. The rationale is lodged in the simple proposition that the Board of Trustees is, in fact, a legislative component vested with the final authority for such matters which, “may” in its discretion, after public hearings by the Plan Commission (or as here the Zoning Board of Appeals acting in its stead), reject or accept the particular use in question. It is a determination, by the guidelines of precedent, we have found which cannot singularly or by itself be made the subject of judicial inquiry.

A comment in the case of Village of Justice v. Jamieson, 7 Ill App2d 113, 129 NE2d 269 (1955) is particularly demonstrative of the distinction which the Village urges. There, prayer was made that the court invalidate an ordinance enacted by the County Board of Cook County which, by rezoning the property in dispute, countenanced its use as a trailer camp, upon the ground that certain fraudulent misrepresentations and conflict of interests to achieve that end had been involved. Distinguishing between the administrative role of the County Board of Appeals and the legislative role of the County Board, for which the former acts as a fact finding body, the court noted at page 119:

“. . . In such a case the action having legal significance is the County Board’s passage of the amending ordinance. This being legislative, the court cannot inquire inte whether the action of the County Board was- based on adequate knowledge nor into the motives of its members or employees, nor is there any principle or precedent on which a legislative act may be held invalid because some fact was misrepresented to the legislative body.” [Emphasis supplied.]

Cf. Anthony v. City of Kewanee, 79 Ill App2d 243, 223 NE2d 738 (1967).

While we recognize that Justice and Anthony, upon which we premise our views, concerned charges directed at affirmative rather than, as here, negative legislative action, we cannot envision, nor have plaintiffs drawn, what we could deem to be a valid distinction between the two. The significant factor remains that, by the reported decisions of this State, the only heretofore successful method of obtaining judicial review from an adverse legislative determination of this sort has been by the instance of an independent action on a new record directly attacking the constitutionality of the underlying zoning classification as applied. Recourse of this nature, we might add, has met with varying results depending upon the balance of equities peculiar to the merits of the respective case. Hartung v. Village of Skokie, 22 Ill2d 485, 177 NE2d 328 (1961); Ward v. Village of Skokie, 26 Ill2d 415, 186 NE2d 529 (1962); Camboni’s, Inc. v. DuPage County, 26 Ill2d 427, 187 NE2d 212 (1962); Lazarus v. Village of Northbrook, 31 Ill2d 146, 199 NE2d 797 (1964); LaSalle Nat. Bank v. County of Cook, 60 Ill App 2d 39, 208 NE2d 430 (1965).

Plaintiffs have not called to the court’s attention any precedent wherein an aggrieved property owner succeeded by pursuit of an action predicated, as here, exclusively upon proof of the improper conduct of a municipal legislative zoning authority. Kotrich v. County of DuPage, 19 Ill2d 181, 166 NE2d 601 (1960), moreover, was not such an instance. It was in Kotrich that our Supreme Court gave approval to the special permit technique of land regulation. There, objection was made to the absence of adequate standards in the county zoning ordinance whereby one was to judge the legitimate bounds of discretion the DuPage County Board of Supervisors enjoyed in weighing the merits of special use applications, an argument which is not advanced in the case at bar. In rejecting that theory, the court stated:

“. . . Since the board of supervisors is a legislative body, precise standards to govern its determination are not required.”

It thus becomes apparent from our reading of the foregoing authorities that there exists a deep-rooted disposition on the part of our courts to refrain from interfering with legislatively sanctioned zoning determinations made at the county and municipal levels. It is a conclusion which plaintiffs profess to refute by a strained construction of those decisions.

Following Kotrich, the Supreme Court in Hartung v. Village of Skokie, supra, in reaching a contrary determination, expanded upon its previous decision. Of particular insight in this regard however was the presence in Hartung of an attack upon the constitutionality of the governing zoning classification. There, the court in striking down the ordinance in the plaintiffs’ favor, delivered the following qualifying remarks:

“. . . But, as the opinion in that case (Kotrich) shows, our approval of the special use technique does not mean that a determination to permit or to deny a special use is beyond judicial review.
“Where, as here, the application for a special use has been rejected, plaintiffs have the right to challenge the constitutionality of the underlying zoning classification. . . .” [Insert supplied.]

Plaintiffs purport to case doubt upon the efficacy of the Hartung decision as applied to the instant case because of the absence of use of mandatory language therein. The subsequent case of Ward v. Village of Skokie, supra, we feel adequately forecloses upon any misapprehensions which may have arisen. There a municipal board of trustees was alleged to have acted unreasonably under the terms of an arbitrary and unconstitutional amendatory ordinance, which averments were sustained by the court. Plaintiffs, however, erroneously allude to the finding in Ward of the unreasonableness of the legislative action overlooking that such a determination was made only insofar as it related to the denial of a proposed use on the basis of an arbitrary and void ordinance, which ordinance had again been directly challenged.

The conclusion we draw from the majority opinion in Ward is consonant with and possibly best exemplified by the interpretation afforded that decision by the specially concurring opinions of Mr. Justices Klingbiel and House. The Justices therein, at length, vigorously advocated the repudiation of what they phrased the Kotrich and Hartung pronouncements of “immunity from review” as it was applied to the piecemeal and ad hoc determinations of legislative bodies, further categorizing the vice of that rule as the “attempt of a legislative body to assume a power, in its uncontrolled discretion, . . . .”

Plaintiffs, moreover, demonstrate their misinterpretation of the majority position in Ward by arguing that Ward effectively established that the Village Board of Trustees in rejecting the instant application was, in fact, acting in an administrative or quasi-judicial capacity, notwithstanding its otherwise legislative composition, and hence was properly subjected to review by the court below. In fact however, it was because of the exactly opposite conclusion of the majority on the question which caused the two justices to level the following criticism:

“. . . To place them [special use activities] in the hands of legislative bodies, whose acts as such are not judicially reviewable, is to open the door completely to arbitrary government. . . . The rule is familiar enough that courts may not inquire into the motives or reasons on which the legislative body acted. See Village of Justice v. Jamieson, 7 Ill App2d 113.” [Insert supplied.]

Notwithstanding the repeated dissents of Mr. Justices Klingbiel and House, the majority of our Supreme Court has continued in reaffirmance of its previously noted unwillingness to molest legislative judgments, absent direct attack upon the constitutionality of the particular zoning ordinance. Camboni’s, Inc. v. DuPage County, supra; Lazarus v. Village of Northbrook, supra. Suffice to say, it is that disposition by which we are bound, in absence of prohibition or alteration of the device of special uses by our General Assembly which, as noted in Lazarus v. Village of Northbrook, supra, has met with disapproval. HB 650, HB 651, 73rd General Assembly (1963). Cf. LaSalle Nat. Bank v. County of Cook, supra.

Finally, plaintiffs offer the anomalous situation that "clinics” being a prohibited use in all eight zoning districts of the Village, it would have been unavailing for them to challenge the validity of the existing “A” classification as applied since there was no classification to which the proposed use of the site could be changed. Fundamental principles dictate to the contrary. The issue is not one of the feasibility of change in classification, but rather whether the particular classification as applied to property within its bounds, by exclusion of certain uses, operates so as to amount to a deprivation of property without due process of law. Plaintiffs could have tested the reasonableness of the “A” classification but elected to pursue another avenue of relief. The specific reasons, purpose or motives prompting the act of refusal by the Board of Trustees itself having been shown to be unsusceptible to judicial review, a further dissertation on the merits of the cause before us is therefore not in order.

For the above reasons, the judgment is reversed and the cause remanded with directions to enter judgment for the defendant-Village.

Judgment reversed and remanded with directions.

BURKE, P. J., and McNAMARA, J., concur.


author: STOUDER, J.

text:
    Illinois National Insurance Company, a Corporation, Plaintiff-Appellant, v. John P. Rose and Gertrude M. Rose, Defendants-Appellees.
    Gen. No. 67-81.
    Third District.
    March 26, 1968.
    McConnell, Kennedy, McConnell & Morris, of Peoria, for appellant.
    William Makovic, of East Peoria, for appellees.
   STOUDER, J.

Plaintiff-Appellant, Illinois National Insurance Company, brought this action in the Circuit Court of Peoria County against Defendant-Appellee, John Rose, seeking a declaration of right with respect to an uninsured motorist provision in a policy issued by plaintiff to defendant. The trial court found that coverage was afforded by the uninsured motorist provision and it is from this determination that the plaintiff insurer appeals.

In September, 1964, defendant Rose was injured in a collision between an automobile which he was operating and one operated by Anna Jordan. At the time of the collision Anna Jordan was insured by Bell Mutual Casualty Company and defendant Rose was insured by plaintiff, Illinois National. In October, 1964, defendant Rose filed suit for damages against Anna Jordan. No appearance was immediately filed for Anna Jordan. Defendant Rose notified plaintiff, Illinois National, of the possibility that Anna Jordan was an uninsured motorist although thereafter an attorney did file an appearance on behalf of Anna Jordan. In September, 1965, Bell Mutual Casualty Company was found to be insolvent and its affairs were turned over to a receiver. Thereafter defendant Rose requested arbitration as required by the terms of the uninsured motorist provision but such request was declined by plaintiff, Illinois National. Plaintiff then brought this action for a declaration of rights with respect to the uninsured motorist provision and it is from a determination in defendant’s favor that this appeal follows.

At the time of the collision the only Statute in effect in Illinois regarding uninsured motorist protection was chapter 73, section 755A, Ill Rev Stats 1963. This provision describes the minimum limits of such coverage and the obligation to include such coverage in all liability policies issued in the State unless rejected in writing by the insured. The provision does not define uninsured motorist, but leaves such definition to policy provisions.

In the development of uninsured motorist protection, the earlier policies defined an uninsured motor vehicle as one with respect to which there was no applicable liability policy. In later policies, as in the instant case, the definition was extended to include as an uninsured motor vehicle, one with respect to which such a policy was applicable but coverage under such policy had been denied. Thus in the instant case an uninsured motor vehicle is defined in two aspects, the absence of applicable liability insurance and if insurance applicable where coverage has been denied.

Both parties agree the rule is now settled in Illinois that a policy of liability insurance is applicable as such term is used in an uninsured motorist provision notwithstanding the subsequent insolvency of the insurance company issuing such liability policy. Dreher v. Aetna Casualty & Surety Co., 83 Ill App2d 141, 226 NE2d 287. However since the policy in the instant case also includes the circumstance of denial of coverage under an applicable liability policy, the question remains whether subsequent insolvency is a denial of coverage. Both parties agree, and we concur, that there is no controlling Illinois case dealing directly with this question. Consequently resort to the law of other states is appropriate. Aageson v. Munson, 25 Ill App2d 336,166 NE2d 637.

Plaintiff contends that a denial of coverage means and is limited to those affirmative acts of the insurer based on the conduct of the insured, generally characterized as “policy defenses” and that the subsequent insolvency of the insurer is not such an affirmative act. Plaintiff urges the application of the reasoning and rule announced in Pattani v. Keystone Ins. Co., 209 Pa Super 15, 223 A2d 899 (1966), since the statutory provisions in Pennsylvania and the provisions of the policy involved in the case are similar to the Illinois Statute, chapter 73, section 755A, Ill Rev Stats, and the provisions of the policy involved in this case. It is true that the statutory and policy provisions are similar and that the Court in Pattani v. Keystone Ins. Co. supra, determined that subsequent insolvency of a liability carrier did not constitute a denial of coverage. However this decision was reversed by the highest court in Pennsylvania in Pattani v. Keystone Ins. Co., 426 Pa 332, 231 A2d 402 (1967), the court adopting the rule as announced in State Farm Mut. Automobile Ins. Co. v. Brower, 204 Va 887, 134 SE2d 277, and followed in North River Ins. Co. v. Gibson, 244 SC 393, 137 SE2d 264, and Katz v. American Motorist Ins. Co., 244 Cal App2d 886, 53 Cal Rptr 669, namely that subsequent insolvency does constitute a denial of coverage.

Plaintiff also urges the application of the New York rule as illustrated by McCarthy v. Motor Vehicle Acc. Indemnification Corp., 16 App2d 35, 224 NYS2d 909, which holds that subsequent insolvency is not a denial of coverage. New York has a different system of providing uninsured motorist protection, the terms and conditions being designated in the Statute under seven specified categories. Section 608, paragraph (e-2), in effect at the time of the McCarthy case, provides, “the insurer or insurers . . . have disclaimed liability or denied coverage because of some act or omission of the person or persons liable or alleged to be liable, . . .” In view of such statutory provision no analogous situation is presented with respect to the law of New York warranting the application of the rule to the case before us.

Thus in Virginia, South Carolina, California and Pennsylvania, the only states in which it appears that the question has been decided under circumstances similar to those in the instant case, it has been determined that the subsequent insolvency of the liability carrier is a denial of coverage as the term is used in an uninsured motorist provision. The reasoning employed is that the insured’s rights, with respect to the protection which the liability carrier has agreed to provide, are just as effectively denied whether the insurer’s conduct be voluntary or involuntary. With this reasoning we must agree. Accordingly, we believe the trial court correctly ruled that the subsequent insolvency did constitute a denial of coverage thereby affording coverage to defendant under the uninsured motorist provision of his policy with plaintiff.

The General Assembly of Illinois amended the Insurance Code in 1967 and included the insolvency of the liability carrier within the protection to be afforded by an uninsured motorist provision. Chapter 73, section 755A(2), Ill Rev Stats (1967). Such amendment is by its terms prospective only, but despite plaintiff’s assertion to the contrary, the meaning of the policy which we have adopted is not and does not depend upon a retroactive application of the amendment. From the foregoing it is clear that we have applied the generally established meaning of the policy provision even though it is true that the precise question would not have arisen had the amendment been in effect. The amendment relates generally to the insolvency of a liability carrier and does not purport by definition or otherwise to deal with the provisions of insurance policies theretofore in effect and cannot be said to declare or recognize that all or any existing policies do not or cannot afford coverage by appropriate provision therefor.

For the foregoing reasons the judgment of the Circuit Court of Peoria County is affirmed.

Judgment affirmed.

ALLOY, P. J. and SCHEINEMAN, J., concur.