author: JUSTICE SCOTT

text:
      In re ESTATE OF THOMAS E. MOONEY, Deceased—(Agnes I. Mooney, Petitioner-Appellee, v. John M. Mooney, Indiv. and as Ex’r of a purported Last Will and Testament of Thomas E. Mooney, Deceased, et al., Respondent-Appellants).
    Third District
    No. 82 — 816
    Opinion filed September 7, 1983.

      Timothy J. Rathbun and Max E. Zollner, both of McKeown, Fitzgerald, Zollner, Buck, Sangmeister & Hutchison, of Joliet, for appellants.
    Bruce L. Zumstein, of Codo, Bonds, Zumstein & Konzelman, of Joliet, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

Thomas E. Mooney died on October 26, 1980, leaving a will in which he left property to two charities, to his brother John, and to his sister Mary. The decedent’s sister Agnes Mooney was bequeathed a nominal sum of $100. Agnes Mooney filed a petition to contest the will in the circuit court of Will County, alleging that her brother John unduly influenced the decedent in the execution of the will, or in the alternative, that the decedent lacked testamentary capacity at the time the will was executed. The circuit court jury returned a general verdict finding for the contestant, Agnes Mooney. The executor appeals the jury verdict.

Thomas Mooney was 69 years old at the time of his death. The disputed will, which was filed for probate, provides that after payment of debts, funeral expenses, and costs of administration, bequests are to be made to Agnes Mooney in the sum of $100, to St. Jude Roman Catholic Church in the sum of $10,000, and to Christian Brothers of Lewis University in the sum of $2,500. The will further recites that the testator owns a 5/ieth interest in the Mooney family farm, and Thomas Mooney directed that Vieth of his farm interest be devised to his sister Mary Mooney, and 4/ieth to his brother John Mooney. The residuary estate was divided equally between John and Mary, and John was appointed as executor of the will.

The Mooney family farm was located in Joliet, Illinois, and had been owned by the decedent’s parents. Thomas Mooney, his sisters Agnes and Mary, his brother John, and his deceased sister Margaret, had been raised on the farm. In fact, John, Mary and the decedent had lived on the farm their entire lives. Agnes Mooney had left the farm as a young adult, and in the intervening years had become estranged from her brothers and sister. Thomas Mooney never married, he had no children, and had a limited elementary school education.

Since 1966, John Mooney had run the family farm. He collected all the farm income and paid the real estate taxes, living expenses, telephone bills, and electric bills. He made decisions as to what crops to plant, when to harvest them, and when to sell them. He managed the affairs of the decedent and Mary Mooney, providing them with funds for whatever in his opinion their needs were. Because the decedent was not licensed to drive an automobile, John Mooney provided transportation whenever that was necessary. In short, John Mooney held a dominant role with regard to his brother Thomas, and Thomas Mooney relied on his brother John in the conduct even of his day-today affairs.

In July 1979, Thomas Mooney fell and suffered a broken hip. From that time until his death, except for a brief period the following September, Thomas Mooney required hospitalization or nursing home care. In July of 1980, Thomas Mooney returned to the hospital from the nursing home because of a serious leg ailment. The following month, Thomas Mooney’s doctors recommended a partial amputation of his leg to control a gangrenous condition. Thomas Mooney steadfastly refused the advice of his doctors, and declined to consent to the recommended surgery. Thomas Mooney’s refusal to follow his physician’s advice led his brother John to consult the family attorney, Dominic Boetto. Mr. Boetto suggested that John Mooney petition the court to appoint a guardian for his brother Thomas, a guardian who would have the authority to consent to the recommended amputation. A petition to the court was executed on August 29, 1980, and a preliminary hearing on that petition was held on September 2. At that time John Mooney testified that his brother Thomas had been born with a slight mental defect, and that John had been taking care of his brother’s financial arrangements for many years. Following the hearing, the court appointed John temporary guardian of the estate and person of Thomas Mooney. In addition, a hearing was scheduled for September 11,1980, at the hospital room of Thomas Mooney.

The purpose of the September 11 hearing was to determine whether Thomas Mooney was competent to consent to the surgery which his doctors recommended. As the hearing concluded, it was unnecessary to determine whether John Mooney as court-appointed guardian should have the authority to consent to the recommended amputation, because at that time Thomas Mooney relented from his previous position and voluntarily authorized the surgeons to proceed. The amputation was performed the following day, but the decedent’s condition worsened and he subsequently died on October 26,1980.

Several weeks prior to the September 11 hearing John Mooney approached the family attorney, Dominic Boetto, and instructed the attorney to prepare a will for his brother Thomas. Mr. Boetto followed his instructions based upon information he received from John Mooney. Mr. Boetto never had a conversation with Thomas Mooney in Thomas’ lifetime about the preparation of a will, nor did Thomas Mooney ever ask Mr. Boetto to prepare a will for him. When Mr. Boetto had completed the assignment which John Mooney had given him, he took the will to Thomas Mooney’s hospital room along with two secretaries from his office. The will was there executed by Thomas Mooney, but subsequently lost.

Shortly afterwards, John Mooney called Mr. Boetto and advised him that the first will had been lost and again instructed Mr. Boetto to prepare a will for his brother. Mr. Boetto complied with this request and drafted a second will which was purportedly identical to the first. Again, Mr. Boetto brought the will he had drafted for Thomas Mooney to the latter’s hospital room. On this occasion, the occasion of the September 11 hearing on the guardianship, Mr. Boetto did not cause the will to be executed, but instead he gave the document to John Mooney. Later that day, John Mooney called Fran Hudak and asked Fran to bring his son, Michael Hudak, to the hospital to act as witnesses to the will. John Mooney, the two witnesses, and Thomas Mooney were the only persons present in the hospital room when the document was signed, the document that is now the subject of this contest.

Based on this sequence of events, the Will County jury concluded that the September 11 document was not the last will and testament of Thomas Mooney. The appellants, John M. Mooney and Mary L. Mooney, believe that the conclusion of the jury was against the manifest weight of the evidence.

The contestant, Agnes Mooney, urged two grounds in the court below as a basis for setting aside the will which was offered for probate. First, she asserted that John Mooney exercised undue influence on his brother Thomas in the execution of the will. Secondly, she asserted that at the time the will was executed, Thomas Mooney lacked testamentary capacity. The jury returned a general verdict, and we are obliged to sustain that verdict if there is sufficient evidence to support either of the grounds asserted below. (Butler v. O’Brien (1956), 8 Ill. 2d 203, 133 N.E.2d 274.) With regard to the first ground asserted by the contestant, we note that undue influence arises when the dispository provisions of a will are more the will of the influencer than the testator. In re Estate of Stuhlfauth (1980), 88 Ill. App. 3d 974, 410 N.E.2d 1063.

“The circumstances which raise a presumption that a will was executed as a result of undue influence on the testator, and if proved and unrebutted, are sufficient to void the will follow:

(1) a fiduciary relationship between testator and a person who receives a substantial benefit under the will (compared to other persons who have an equal claim to the testator’s bounty);

(2) a testator in a dependent situation in which the substantial beneficiaries are in dominant roles;

(3) a testator who reposed trust and confidence in such beneficiaries; and

(4) a will prepared or procured and executed in circumstances wherein such beneficiaries were instrumental or participated. Once proved, a prima facie case of undue influence has been established.” (Beyers v. Billingsley (1977), 54 Ill. App. 3d 427, 436-37, 369 N.E.2d 1320, 1327.)

Once the presumption of undue influence is raised, the burden shifts to those who would defend the will to rebut the presumption of undue influence. In re Estate of Stuhlfauth.

We believe the evidence before the circuit court jury was sufficient to meet the four-part test set forth in Beyers v. Billingsley, and therefore to raise a presumption of undue influence in the execution of the disputed will. Clearly, John Mooney stood in a fiduciary relationship with his brother Thomas. He was a dominant party who Thomas trusted to handle his financial affairs as well as many of the affairs of his day-to-day existence. The dispositive provisions of the disputed will substantially benefitted John Mooney as compared to his sister Mary and his sister Agnes, both of whom shared the same relation of kinship to the decedent. Thomas Mooney depended on his brother John, who he trusted and confided in. Finally, it is clear that the will which was signed on September 11 was procured and executed under circumstances wherein John Mooney was an instrumental participant.

With the presumption raised, the burden of producing evidence to rebut the presumption shifted to the executor and those who sought to defend the will. It does not appear that the burden was met in the instant case. There is no evidence that Thomas Mooney received any independent advice in the preparation of the disputed will. There is no evidence that Thomas Mooney understood the contents of the will that he signed. Indeed, there is no evidence that the witnesses, Fran and Michael Hudak, witnessed the will at the request of Thomas Mooney. Instead, both men concede that it was John Mooney who asked them to come to the hospital and it was John Mooney who there asked them to sign the will executed by his brother. Mere proof of the due and legal execution of a will is not sufficient to rebut the presumption of undue influence once raised. (In re Putnam’s Will (1931), 257 N.Y. 140, 177 N.E. 399.) Similarly, proof of the existence of an affectionate relationship between the testator and a preferred beneficiary is not sufficient to rebut a presumption of undue influence. (Harmon v. Ketchum (Tex. Civ. App. 1927), 299 S.W. 682.)

“Where the evidence on the issues of mental competency and undue influence in a will contest is conflicting, that on either side being sufficient, alone, to sustain a verdict for that side, the jury and the trial judge are in a better position to determine the issues than is a reviewing court, and a judgment upholding the will will not be reversed on the evidence unless the verdict is contrary to the manifest weight thereof.” (Sterling v. Dubin (1955), 6 Ill. 2d 64, 74, 126 N.E.2d 718.)

The rule is no different where the judgment in the court below failed to uphold the will, and where, as here, the evidence in rebuttal of the presumption is at best meager, we cannot say that the verdict of the Will County jury is contrary to the manifest weight of the evidence. Since we find sufficient evidence to sustain the verdict of the jury on the ground of undue influence, it is unnecessary to further consider the testamentary capacity of Thomas Mooney on September 11,1980.

The appellants suggest that even if the verdict below was not contrary to the weight of the evidence, errors in the conduct of the trial require a reversal and rehearing. Specifically, it is urged that the circuit court’s refusal to give a tendered instruction resulted in prejudicial error. While this alleged error was brought to the attention of the trial court by way of a timely post-trial motion, the motion did not more than summarily assert the correctness of the tendered charge. The Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 68.1(2)) and the Supreme Court Rules (87 Ill. 2d R. 366(b)(2)(iii)) establish a standard of specificity which must be met in motions for post-trial relief. In interpreting the Cwil Practice Act and Supreme Court Rules, it has been determined that summarily listing jury instructions in the post-trial motion does not set forth with specificity sufficient to preserve the matter for review any alleged error in those instructions. (Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 415 N.E.2d 337; Pyse v. Byrd (1983), 115 Ill. App. 3d 1003, 450 N.E.2d 1374.) Accordingly, we determine that any alleged error in the failure to give the tendered instruction has been waived for appellate review.

It is also urged that the repeated attempts by the contestant to introduce irrelevant matters into the hearing below, as evidenced by more than 200 sustained objections interposed by the executor’s counsel, unduly prejudiced the case of the executor in the eyes of the jury by creating the impression that the executor was attempting to conceal evidence. Much of the matter sought to be introduced, which provoked the objections sustained by the circuit court, concerned occurrences remote in time from the execution of the will. It was the executor’s position that only evidence of incapacity or undue influence on or about the time of the execution of the will was relevant to this proceeding. That position is essentially correct. The rule as to proof of mental capacity or undue influence requires that such proof, to be competent, relate to a time at or near the time of the making of the will. (Shevlin v. Jackson (1955), 5 Ill. 2d 43, 124 N.E.2d 895; Knudson v. Knudson (1943), 382 Ill. 492, 46 N.E.2d 1011.) However, evidence of mental condition at other times, if it fairly tends to show the condition of the testator at the time the will was actually executed, may also be competent. (Shevlin v. Jackson; Knudson v. Knudson.) A review of the transcript of proceedings, and of the many objections that were sustained by the trial court, indicates that the contestant attempted through her witnesses to characterize the relationship between her brothers, John and Thomas, as one of long standing and uninterrupted dominance and dependency. Her theory of the case was that this relationship existed not only on September 11, 1980, but continuously for many years prior to that. We agree that remote and isolated occurrences which evidence lack of capacity or undue influence at times not reasonably contemporaneous with the execution of the will are generally irrelevant in a contest of that will. But, where the evidence of past occurrences is sufficiently connected to establish a pattern, continuous over time, it becomes relevant to the execution of the will. A condition is presumed to continue if it be of a continuous nature, or if it can be shown to be of a continuous nature. (Butler v. O’Brien (1956), 8 Ill. 2d 203, 133 N.E.2d 274.) Where, as here, the contestant urged that the relationship of dominance and dependence between John Mooney and Thomas Mooney continued over an extended period of time up to and including the execution of the will, and where evidence of the previous existence of that relationship forms an unbroken chronology up to and including the time of the execution of the will, then those matters may indeed be relevant to the issue before the court. Thus, we conclude it was the contestant’s case, and not the executor’s case, that was prejudiced when the executor’s efforts to exclude this evidence were repeatedly sustained.

Finally, the executor posits that his case was prejudiced by the violation of a motion in limine during the course of the trial and by improper closing argument. While it does appear that the circuit court’s order pursuant to the motion in limine, limiting the introduction of evidence, was violated on one occasion, we believe this breach was in the nature of harmless error as it would not have affected the presumption of undue influence raised by the evidence. Similarly, the improper argument by contestant’s attorney was disregarded by the jury upon the admonishment by the circuit judge, and in no way could have affected the jury’s deliberation on the issue of undue influence.

After carefully reviewing the transcript of proceedings, the briefs of counsel, and the authorities submitted therein, we conclude that the verdict of the Will County jury should be and is hereby affirmed.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE MILLS

license: Public Domain

text:
    EDWARD DWYER et al., Ex’rs of the Estate of John J. Dwyer, Deceased, Plaintiffs-Appellees, v. COOKSVILLE GRAIN COMPANY et al., Defendants—(McLean County Bank, Defendant-Appellant).—EDWARD DWYER et al., Ex’rs of the Estate of John J. Dwyer, Deceased, Plaintiffs-Appellees, v. COOKSVILLE GRAIN COMPANY, Defendant-Appellant-(McLean County Bank et al., Defendants).
    Fourth District
    Nos. 4 — 82—0848, 4 — 83—0008 cons.
    Opinion filed September 8, 1983.
    Thomas M. Barger III, of Livingston, Barger, Brandt & Schroeder, of Bloomington, for appellant McLean County Bank.
    George L. Chesley, of DePew, Grimes, Chesley & Wilson, of Bloomington, for appellant Cooksville Grain Company.
    Don C. Hammer, of Hayes, Schneider, Hammer & Miles, of Bloomington, for appellees.
   JUSTICE MILLS

delivered the opinion of the court:

Landlord’s crop lien versus bank’s security interest.

Which comes first?

We will not presume to overrule 110 years of our supreme court’s settled law!

The crop lien takes precedence.

The Facts

In February of 1981, Edward Dwyer "leased 300 acres of farm property to Robert Morefield for $60,000. One week later, Morefield borrowed $24,000 from the McLean County Bank in order to purchase a new combine to farm the rented property. To secure the loan, Morefield entered into a security agreement with the bank, giving the bank a security interest in the crops grown on the property. In accordance with article 9 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 9 — 101 et seq.), the bank perfected its security interest in the crops by filing a financing statement with the recorder of McLean County.

In mid-June, Morefield began planting the crop on the Dwyer farm and in late fall he delivered the harvested crops to the Cooks-ville Grain Company. As payment for the crops, Cooksville delivered a check to Morefield in the amount of $72,155.16, payable jointly to Morefield and the bank. Morefield delivered the check to the bank, the bank deducted $29,655.16 to apply to Morefield’s obligation, and then credited Morefield’s checking account with the balance of $42,500.

After learning that the crops had been sold and realizing that the proceeds had not been used to pay the $60,000 in rent due, Dwyer filed a complaint against Morefield, the bank, and Cooksville. Count I of the complaint alleged that Cooksville had wrongfully converted the crops; count II alleged that the bank had wrongfully converted the proceeds from the sale of the crops; and count III alleged that More-field and the bank had conspired to deprive Dwyer of the rent and to convert the crops.

After a great deal of procedural maneuvering by all of the parties, the trial judge entered an order granting a motion by Dwyer for summary judgment on counts I and II and granting a motion by the bank for summary judgment on count III. Judge Knecht then awarded Dwyer a $60,000 judgment against Cooksville and a judgment for $29,655.16 against the bank. The bank filed a motion for clarification, noting that Dwyer was damaged in the amount of $60,000 and asking the court to apportion the ultimate responsibility for payment of the $60,000 judgment between Cooksville and the bank. Judge Knecht granted the bank’s motion for clarification and ruled that he would apportion the responsibility for the payment of the total $60,000 judgment at a later date. Before that apportionment took place, however, both the bank and Cooksville appealed Judge Knecht’s order granting Dwyer’s motion for summary judgment.

We affirm and remand the cause to the circuit court for apportionment of the liability for the total $60,000 judgment between Cooks-ville and the bank.

The central issue in this appeal is whether a landlord’s statutory crop lien for rent has priority over an article 9 security interest in proceeds from the sale of crops grown on the rented land. It does.

The Landlord’s Crop Lien

The landlord’s crop lien for rent arises from section 9 — 316 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 9— 316), which states:

“Every landlord shall have a lien upon the crops grown or growing upon the demised premises for the rent thereof, whether the same is payable wholly or in part in money or specific articles of property or products of the premises, or labor, and also for the faithful performance of the terms of the lease. Such lien shall continue for the period of six months after the expiration of the term for which the premises are demised, and may be enforced by distraint ***.”

The rule has long been established in Illinois that the landlord’s crop lien is paramount to all other liens. (Lillard v. Noble (1896), 159 Ill. 311, 42 N.E. 844; Wetsel v. Mayers (1879), 91 Ill. 497; Richey v. Ford (1899), 84 Ill. App. 121.) The lien can be lost only by waiver or by failing to enforce it within the proper time. Thompson v. Mead (1873), 67 Ill. 395.

The bank, however, argues that although the landlord’s crop lien may have been paramount before the adoption of the Uniform Commercial Code in Illinois, today the priority rules of the Code’s article 9 govern all priority disputes including those involving the crop lien. As the bank points out, its perfected security interest would have priority over Dwyer’s lien if the dispute is governed by article 9’s priority rules. Article 9, however, cannot be applied when one of the conflicting interests is a landlord’s crop lien. Article 9 expressly exempts both statutory and landlord’s liens from its coverage.

The Scope Provisions Of Article 9

Section 9 — 102(2) of article 9 (Ill. Rev. Stat. 1981, ch. 26, par. 9— 102(2)) states in part:

“This Article [9] does not apply to statutory liens except as provided in Section 9 — 310.” (Section 9 — 310 deals with liens for furnishing services or materials.)

And section 9 — 104 of article 9 (Ill. Rev. Stat. 1981, ch. 26, par. 9— 104) entitled “Transactions Excluded From Article [9]” states:

“This Article [9] does not apply * * *
(b) to a landlord’s lien ***.”

The drafters of article 9 could not have spoken more clearly. Article 9 does not apply to a landlord’s statutory lien. This exemption has been recognized by the vast majority of the courts across our nation. See Hartwell v. Hartwell Co. (1979), 167 N.J. Super. 91, 400 A.2d 529; Associates Financial Services of Texas, Inc. v. Solomon (Tex. Civ. App. 1975), 523 S.W.2d 722; National Investment Trust v. First National Bank (1975), 88 N.M. 514, 543 P.2d 482; Bates & Springer of Arizona, Inc. v. Friermood (1973), 109 Ariz. 203, 507 P.2d 668; Universal C.I.T. Credit Corp. v. Congressional Motors, Inc. (1967), 246 Md. 380, 228 A.2d 463.

We are aware of only one case which supports the bank’s position that the priority rules of article 9 should govern in a dispute involving a landlord’s statutory lien. That case, Peterson v. Ziegler (1976), 39 Ill. App. 3d 379, 350 N.E.2d 356, is from our Fifth District. In Peterson, the court, faced with a priority dispute between a holder of an article 9 security interest and a landlord with a statutory lien, applied the priority rules of article 9.

Although the court in Peterson noted that a literal interpretation of section 9 — 104(b) would preclude applying any rule of priority from article 9 to the landlord’s statutory lien, it went on to state, without citing any supporting authority:

“The purpose of section 9 — 104(b), however, is only to indicate that article 9 does not govern the creation of a landlord’s lien or the priorities between competing landlords’ liens. In order for article 9 to be the comprehensive statute that it was meant to be on the. subject of consensual security interests, article 9 must always supply a rule for determining the priorities between a consensual security interest and any other kind of lien.” (Emphasis added.) 39 Ill. App. 3d 379, 385, 350 N.E.2d 356, 362.

We emphatically disagree. There is no need for this court — or any court — to search for hidden purposes in the provisions of article 9 in order to determine its scope. The language of 9 — 104(b) and 9 — 102(2) is crystal clear — no part of article 9, including the priority rules, apply to a landlord’s statutory lien. We expressly disapprove that portion of the Peterson opinion, where the court found otherwise.

In conclusion, we find that the adoption of article 9 in Illinois has not diminished the paramount nature of the landlord’s crop lien. It still has superiority over all other interests, including those created under article 9.

Consequently, the trial court did not err when it granted Dwyer’s motion for summary judgment.

Affirmed and remanded with directions to the circuit court to apportion the liability for the total $60,000 judgment between the bank and Cooksville.

WEBBER, P.J., and TRAPP, J., concur.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BENNY JOE NEWSOME, Defendant-Appellee.
    Fourth District
    No. 4 — 82—0482
    Opinion filed September 6, 1983.

      Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and Michael W. Hogan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

This is an interlocutory appeal by the State from an order of the circuit court of Vermilion County suppressing statements of the defendant which were taken in alleged violation of his Miranda rights. The question presented for our decision is whether the defendant was in custody so as to require Miranda warnings precedent to on-the-scene questioning. We reverse.

At approximately 5 p.m. on April 8, 1982, two Danville police officers on routine patrol observed defendant walking in front of the Bank of Danville looking suspiciously in all directions. The officers decided to watch the defendant and pulled into a parking lot nearby. The officers next observed defendant walk into a small grocery store for a few seconds and then exit, empty handed. Defendant left the building and walked alongside the store in an alley until he reached the back of the building at which point the officers lost sight of defendant for approximately 45 seconds. When defendant reappeared he was carrying a carton of soda and walking away from the store. The officers were able to observe the checkout counter during the brief period that defendant was out of their view and noticed that he had not purchased the merchandise he was carrying. When defendant was approximately 25 yards north of the store the officers drove up the alley and stopped the squad car within five feet of him. Both officers exited the vehicle and one asked defendant for identification. The officers then asked defendant where he had gotten the soda and defendant responded that he had purchased it at the store. The conversation then ended, defendant was placed in the back of the squad car, and the officers returned to the front of the store to ask the cashier if the defendant had purchased the soda. The cashier recognized defendant as previously being in the store but denied that any purchases had been made. The statement of defendant which was suppressed by the trial court was his response that he had purchased the soda at the grocery store.

At the suppression hearing, arresting officer Forsythe testified that when defendant was questioned he was not free to go, and that at the time he was stopped both officers knew that the defendant had not purchased the soda at the store which they could observe. Officer Forsythe related that no matter what defendant’s explanation was, they were going to verify it before allowing him to leave. The other officer likewise acknowledged that they knew defendant had not purchased the soda from that store. Defendant’s pretrial suppression motion alleged that the defendant was subjected to custodial interrogation without the admonitions required by Miranda. The trial court agreed and granted defendant’s motion.

The rule of Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, requires the suppression of statements made by a defendant in response to custodial police interrogation unless preceded by a statement of basic constitutional rights and a waiver of those rights. One of the important limitations of Miranda is that the warnings designed to secure a defendant’s fifth amendment privilege against self-incrimination are not required unless the accused is subjected to custodial interrogation. As the opinion notes:

“General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.” 384 U.S. 436, 477-78,16 L. Ed. 2d 694, 725-26, 86 S. Ct. 1602, 1629-30.

The test laid down in Miranda to determine if a suspect must be advised of his rights is whether the person is in custody or otherwise deprived of his freedom of action in any significant way. (384 U.S. 436, 444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602, 1612.) In considering whether a suspect is in custody, several factors are relevant, including: (1) The place of the interrogation (Miranda); (2) statements or nonverbal conduct indicating an accused is not free to leave (People v. Kennedy (1978), 66 Ill. App 3d 267, 383 N.E.2d 713); and (3) the extent of the knowledge of the police officers and the focus of their investigation (People v. Meddows (1978), 67 Ill. App. 3d 995, 385 N.E.2d 765; but see Beckwith v. United States (1976), 425 U.S. 341, 48 L. Ed. 2d 1, 96 S. Ct. 1612). In People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870, our supreme court indicated that the inquiry-should focus on the objective circumstances surrounding the interrogation to determine what a reasonable man innocent of any crime would perceive.

This court has also indicated that the intentions of the officers are relevant factors in deciding if defendant is in custody. In People v. Szerletich (1980), 86 Ill. App. 3d 1121, 408 N.E.2d 1098, we held that it was reversible error to prevent defendant’s counsel from asking the interrogating police officer whether he would have let the defendant go at the time of the initial questioning. Our opinion there indicated that the beliefs of the police officer were important considerations although not determinative of the final outcome. In Szerletich, the circumstances surrounding the questioning so strongly indicated that the defendant was in custody that the absence of evidence on this factor may have persuaded the trial court to decide that the defendant was not in custody at the time of the questioning.

A case cited by both parties and supportive of the State’s position is People v. Dixon (1981), 102 Ill. App. 3d 426, 430 N.E.2d 547. There, a person was seen leaving the scene of a murder by the victim’s neighbor arid was pointed out to the police by the same neighbor a week later while standing in a city park. When the officer approached the defendant he began walking away. The officer then asked the defendant his name and where he lived. Defendant responded that he did not live in the area but that he had been visiting his girlfriend. He gave the officer the address of his girlfriend and upon subsequent investigation the victim’s furniture was located at the girlfriend’s apartment. On appeal, defendant argued that he was in custody when initially questioned and that the evidence obtained from the apartment should have been suppressed as the fruit of the illegal questioning. The appellate court rejected this argument and characterized the questioning as merely on-the-scene investigation which did not require Miranda warnings.

Defendant argues that Dixon is distinguishable because in that case the police did not have probable cause for arrest, as distinguished from a present claim of said probable cause. Dixon did not so decide, and in any event the test for determining if a suspect is in custody is not the presence or absence of probable cause. The prosecution suggests that the police had a reasonable suspicion of criminal activity and that the stop and question were proper under the authority of Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, and section 107 — 14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 107 — 14). Here, there was an articulable basis for suspecting criminal activity so that a stop and question were proper with less than probable cause to arrest, and it cannot be said that the act of the police officers was unreasonable.

Here, no theft had been reported and there were no known witnesses to the taking of the carton. Unless it can be established that a specific carton of soda pop can be identified as the merchandise of a particular store, the fact of unauthorized taking is hardly more than an unprovable suspicion. In the opinion in People v. Lippert (1982), 89 Ill. 2d 171, 179-80, 432 N.E.2d 605, 608, there is a substantial discussion of probable cause to arrest in the respective context of the known commission of a crime and the identity of the offender. The opinion quotes from 1 W. LaFave, Search and Seizure sec. 3.2, at 484-85 (1978),. including:

“ ‘Police will not continually be arresting upon a less than 50% probability of guilt, but only in limited situations where a person is found in an area where it is known a crime has recently occurred. By contrast, if the police may also arrest upon a less than 50% probability that a crime has even occurred, then this would open up the possibility that police would generally arrest persons engaged in activity which was only equivocal. The latter practice, it seems fair to assume, would result in many more intrusions into the freedom and privacy of innocent persons than would the former.’ ”

Here, the defendant was not placed under arrest until his response to the question introduced facts which could be verified. At the time of the question, defendant’s activity was not obviously illegal. The question was asked in open public view with no display of force administered and no overt restraint upon defendant.

More closely analogous to the instant situation is People v. Parks (1971), 48 Ill. 2d 232, 269 N.E.2d 484. In Parks, a pharmacist received a phone call from the defendant, posing as a doctor, ordering a prescription. The pharmacist notified the police and shortly thereafter defendant arrived to pick up the prescription. As defendant was leaving the store, an officer asked defendant if he had made a purchase at the drug store and for whom. The defendant told the officer that he was obtaining the drugs for his aunt. On appeal, the defendant argued that the statement he made at the pharmacy should have been suppressed as the fruit of an unlawful interrogation. The supreme court rejected this argument, holding that defendant was not in custody but was merely subjected to preliminary on-the-scene investigative inquiry. See also People v. Helm (1973), 10 Ill. App. 3d 643, 295 N.E.2d 78.

The questioning of the defendant here occurred in public view, the questions were asked when the officers first arrived and nothing indicates that defendant was aware that he was not free to leave. The fact that the officer testified that defendant was not free to go is not determinative since this was not communicated to the defendant. Under the objective test, an innocent, reasonable person in defendant’s position would not have felt restrained. (Wipfler.) All the defendant was doing when he was approached by the officers was carrying an eight-pack of soda down a public way at a reasonable hour. The situation at bar is much different than the custodial environment presented in Miranda where the defendant had been taken into an isolated interrogation room at police headquarters for questioning.

Although a trial court’s ruling on a motion to suppress should not be reversed unless the ruling is manifestly erroneous (People v. Brown (1980), 88 Ill. App. 3d 514, 410 N.E.2d 505), we conclude that such a standard has been met here. All the facts and circumstances indicate that defendant was not in custody with the exception of the statement by one of the officers that when defendant was stopped he was not free to leave the scene. This subjective view was never communicated to the defendant either explicitly or implicitly, and our decision in Szerletich did not hold that the subjective belief of a police officer is the controlling factor in deciding if a suspect is in custody.

For the foregoing reasons, the order of the circuit court of Vermilion County granting defendant’s motion to suppress his statement is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

GREEN and MILLER, JJ., concur.


author: JUSTICE HOPF

text:
    THE VILLAGE OF MUNDELEIN, Plaintiff-Appellee, v. WILLIAM HARTNETT, Defendant-Appellant.
    Second District
    No. 82 — 674
    Opinion filed September 1, 1983.
    Rehearing denied October 17, 1983.

      Thomas M. P. Hannigan, of Mundelein, for appellant.
    Charles W. Smith, of Rosing, Carlson & Magee, Ltd., of Waukegan, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

The question before us is whether a local ordinance violation for driving under the influence of alcohol is punishable by a jail sentence pursuant to section 11 — 501(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501(c), as amended), when the ordinance itself provides for only the imposition of a fine.

On February 19, 1982, the defendant, William Hartnett, was arrested for the offense of driving while under the influence of alcohol pursuant to Ordinance No. 81 — 12—35 of the village of Mundelein, a non-home-rule municipality. The ordinance was passed on December 21, 1981, and provides, in part, that “[e]very person convicted of violating this Section shall be fined not less than TWO HUNDRED AND 00/100 ($200.00) DOLLARS and not more than FIVE HUNDRED AND 00/100 ($500.00) DOLLARS.” No further penalty is set forth in the ordinance.

Defendant entered a plea of guilty to the charge. Over defendant’s objection, the court advised the defendant that under section 11 — 501(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501(c)), a violation of a local ordinance prohibiting driving while under the influence of alcohol was a Class A misdemeanor punishable by up to $1,000 fine and/or one year in jail. The court also advised that the village’s burden of proof was beyond a reasonable doubt. Defendant was subsequently sentenced to one year’s supervised probation conditioned upon 100 hours of public service, participation in Alcoholics Anonymous, and 30 days in jail. Defendant filed a timely notice of appeal, but the appeal was dismissed by the trial court on defendant’s motion. Defendant then moved to withdraw his guilty plea, alleging that the court lacked jurisdiction to incarcerate defendant, as the ordinance under which he was charged did not provide for such a penalty. We note that defendant did not challenge the constitutionality of the proceedings. Defendant’s motion was denied, and defendant appeals. No constitutional issue is raised on appeal.

We agree with defendant that the trial court improperly sentenced him to a jail term under the ordinance. In reaching this conclusion we rely upon section 1 — 2—4 of the Illinois Municipal Code, which requires all ordinances to be published before the municipality may impose a fine, penalty, imprisonment or forfeiture for its violation. (Ill. Rev. Stat. 1981, ch. 24, par. 1 — 2—4.) It is clear in the instant case that no provision for imprisonment was ever included in the ordinance here- or published as required by section 1 — 2—4. Thus, a sentence of imprisonment could not be imposed by the trial court under the ordinance in question. Defendant’s sentence must therefore be reversed.

We must also determine whether the ordinance in question violates the State’s public policy on drunken driving as expressed in the amendment to section 11 — 501 (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501, as amended by Pub. Act 82 — 311, effective January 1, 1982), for its failure to provide for a possible jail sentence of up to one year and a possible fine of up to $1,000. If the ordinance is found to violate the State statute it is invalid and defendant’s conviction thereunder must be reversed. Hester v. Kamykowski (1958), 13 Ill. 2d 481, 484-85, 150 N.E.2d 196.

The amendment to section 11 — 501 of the Illinois Vehicle Code prohibits driving while under the influence of alcohol or drugs and provides, in part, that “[e]very person convicted of violating this Section or a similar provision of a local ordinance, shall be guilty of a Class A misdemeanor.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501(c), as amended by Pub. Act 82 — 311, effective January 1, 1982.) Prior to the amendment, section 11 — 501 provided for Class A misdemeanor treatment only for those “convicted of a violation of this Section ***.” (Ill. Rev. Stat. 1981, ch. 95½, par. 11— 501(i).) Public Act 82 — 311 was passed and approved on June 18, 1981, prior to the effective date of the ordinance, and the village admits it was aware of the amendment when it drafted the ordinance. The court interpreted the amendment as mandating Class A misdemeanor treatment for ordinance violators, thereby giving it the authority to exercise its sentencing discretion under the Unified Code of Corrections. (See Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 4—1(b).) Under the Code, the possible penalties for a Class A misdemeanor include a fine of up to $1,000, and/or imprisonment for any term less than one year. (Ill. Rev. Stat. 1981, ch. 38, pars. 1005 — 5—3, 1005— 8 — 3, 1005 — 9—1(a)(2).) However, the village interpreted section 11— 501(c) as merely authorizing, but not mandating, Class A misdemeanor treatment for ordinance violators. Therefore, it chose not to incorporate into the ordinance the full range of penalties authorized. On appeal, the village points out that had it in fact provided for such penalties the ordinance would have been in derogation of sections 1— 2 — 1 and 1 — 2—1.1 of the Illinois Municipal Code, which restrict the municipality’s authority to punish ordinance violators. (Ill. Rev. Stat. 1981, ch. 24, pars. 1 — 2—1, 1 — 2—1.1.) Section 1 — 2—1 authorizes a municipality to exact a fine or penalty for the violation of an ordinance and states that “[n]o fine or penalty *** shall exceed $500 ***.” (Ill. Rev. Stat. 1981, ch. 24, par. 1 — 2—1.) We view this section as pertaining to civil sanctions and not criminal ones. Section 1 — 2— 1.1 sets forth the guidelines under which incarceration may be imposed and states that incarceration may not exceed six months. (Ill. Rev. Stat. 1981, ch. 24, par. 1 — 2—1.1.) However, the second paragraph of section 1 — 2—1.1 exempts ordinances enacted pursuant to section 11 — 208 of the Illinois Vehicle Code. (Ill. Rev. Stat. 1981, ch. 95V2, par. 11 — 208.) Municipalities derive their authority for enacting drunken driving legislation not from the Municipal Code, but from section 11 — 208(15) (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 208(15)), which states that municipalities may adopt “such other traffic regulations as are specifically authorized by this Chapter.” We therefore find no irreconcilable conflict between the Municipal Code and the Illinois Vehicle Code.

The question remains as to what effect the amendment to the Illinois Vehicle Code has on the ordinance here. It is well established that a municipality derives its powers from the legislature, and may only exercise those powers which are expressly granted or those necessarily implied in or incident to express powers. (City of East Peoria v. Board of Trustees (1982), 105 Ill. App. 3d 712, 714, 434 N.E.2d 781.) Municipalities may exercise police power concurrently with the State, and police regulations may differ from those of the State on the same subject, if they are not inconsistent with the State statutes. (Village of Cherry Valley v. Schuelke (1977), 46 Ill. App. 3d 91, 94, 360 N.E.2d 158.) Municipalities cannot, however, adopt ordinances under a general grant of power which infringe upon the spirit of the State law or are repugnant to the general policy of the State. (Huszagh v. City of Oakbrook Terrace (1968), 41 Ill. 2d 387, 390, 243 N.E.2d 831.) The State statute is the strongest indicator of public policy, and where the legislature speaks on a subject upon which it has constitutional power to legislate, the public policy is what the statue passed indicates. (Marvin N. Benn & Associates, Ltd. v. Nelsen Steel & Wire, Inc. (1982), 107 Ill. App. 3d 442, 446, 437 N.E.2d 900.) Finally, where there is a conflict between a statute and an ordinance, the ordinance must give way. Hunt v. City of Peoria (1964), 30 Ill. 2d 230, 232, 195 N.E.2d 719.

The real inquiry in this case is whether the legislature intended to make section 11 — 501(c) mandatory or directory. (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501(c).) In the absence of a contrary expression, when a statute employs words having a well-known legal significance, courts will assume the legislature intended the words to have that meaning. (Jones v. Eagle II (1981), 99 Ill. App. 3d 64, 424 N.E.2d 1253.) The use of the word “shall” in a statute is generally regarded as mandatory; however, it does not have a fixed, indefinite meaning and can, in fact, be construed as meaning “may” depending on the legislative intent. (Kelso-Burnett Co. v. Zeus Development Corp. (1982), 107 Ill. App. 3d 34, 40, 437 N.E.2d 26.) Whether an enactment is directory or mandatory depends upon the legislative intention, to be ascertained from the nature and object of the act and the consequences which would result from any given construction. (Carr v. Board of Education (1958), 14 Ill. 2d 40, 44, 150 N.E.2d 583.) Generally, statutory regulations designed to secure order, system and dispatch in proceedings, and by a disregard of which the rights of interested parties cannot be injuriously affected, are not mandatory unless they are accompanied by negative words which import that the acts required shall not be done in any other manner or time than that designated. (People v. Jennings (1954), 3 Ill. 2d 125, 127, 119 N.E.2d 781.) On the other hand, where disregard of the provision would injuriously affect the public interest or a private right, the provision is to be regarded as mandatory. (In re Pryor (1982), 111 Ill. App. 3d 851, 854, 444 N.E.2d 763; People v. Jennings; Village of Park Forest v. Fagan (1976), 64 Ill. 2d 264, 268, 356 N.E.2d 59.) It has also been held, however, that if a statute is mandatory, in addition to requiring the doing of the things specified, it prescribes the-result that will follow if they are not done; if directory, their terms are limited to what is required to be done. (Walker v. Cronin (1982), 107 Ill. App. 3d 1053, 1059, 438 N.E.2d 582.) The failure to comply with a mandatory provision of a statute will render void the proceeding to which the provision .relates, but strict observance of a directory provision of a statute is not essential to the validity of the proceedings thereunder. Hester v. Kamykowski (1958), 13 Ill. 2d 481, 484-85, 150 N.E.2d 196.

We think the legislature’s recent amendment of section 11— 501 (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501) evinces an intent that ordinance convictions for driving under the influence be treated as severely as convictions under the State statute. That the legislature intended to stiffen the penalties for local ordinance violations is also evident from its further amendment of section 11 — 501, providing that “[t]he Secretary of State shall revoke the driving privileges of any person convicted under this Section or a similar provision of a local ordinance.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501, as amended by Pub. Act 82 — 311, effective January 1, 1982.) This view is also consistent with section 11 — 208.1 of the Illinois Vehicle Code, which provides that “[t]he provisions of this Chapter of this Act, as amended, *** shall be applicable and uniformly applied and enforced throughout this State, *** and in all units of local government.” (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 208.1.) In our view the effect of section 11 — 501(c) is to remove from municipalities the discretion of providing for Class A misdemeanor treatment in their local ordinances, and to mandate that the full range of penalties be incorporated into such ordinances. This would give the trial court greater leeway in fashioning an appropriate sentence for the offender, reflective of both his character and that of the offense itself. We believe that to view the amendment as other than mandatory would be to disregard the plain intent of the legislature, to deprecate the seriousness of this offense, and to deprive the public of its interest in obtaining appropriate sanctions against ordinance violators. We, therefore, find that the ordinance here is invalid for failing to comply with the mandate of section 11 — 501(c) (Ill. Rev. Stat. 1981, ch. 95½, par. 11— 501(c), as amended by Pub. Act 82 — 311), and that defendant’s conviction thereunder must be reversed.

In reaching this result, we are mindful of those previous cases which held that the penalty under an ordinance may be less restrictive than the State law without being in conflict with it. (See Village of Cherry Valley v. Schuelke (1977), 46 Ill. App. 3d 91, 94, 360 N.E.2d 158; Village of Mount Prospect v. Malouf (1968), 103 Ill. App. 2d 88, 92, 243 N.E.2d 434; City of Rockford v. Floyd (1968), 104 Ill. App. 2d 161, 170, 243 N.E.2d 837, cert. denied (1969), 396 U.S. 985, 24 L. Ed. 2d 450, 90 S. Ct. 480; Village of Winnetka v. Sinnett (1933), 272 Ill. App. 143, 148; City of Chicago v. Union Ice Cream Manufacturing Co. (1911), 252 Ill. 311, 315, 96 N.E. 872.) In each of these cases, however, the statute was silent as to how municipalities should punish violations of similar local ordinances. This clearly is not the situation here.

For the reasons stated, the judgment of the circuit court of Lake County is reversed.

Reversed.

UNVERZAGT and REINHARD, JJ., concur.

      A second amendment to section 11 — 501, Public Act 82 — 211, was passed on the same day as Public Act 82 — 311. No addition of the phrase “or a similar local ordinance” was contained in Public Act 82 — 211. While the parties suggest that the two amendments conflict with each other, we do not see a conflict. When two or more acts relating to the same subject matter are passed by the same General Assembly, the acts are to be construed together wherever possible to give full effect to each. (Ill. Rev. Stat. 1981, ch. 1, par. 1105.) We construe these two amendments together as providing for Class A misdemeanor treatment for a violation of either the statute or a similar local ordinance.


author: JUSTICE HARTMAN

text:
    DANNY R. JUSTUS et al., Plaintiffs, v. ABEX CORPORATION, DENISON DIVISION, Defendant and Third-Party Plaintiff-Appellant—(Du Page Die Casting Company et al., Third-Party Defendants-Appellees).
    First District (2nd Division)
    Nos. 82 — 1245 through 82 — 1247 cons.
    Opinion filed June 28, 1983.
    French, Rogers, Kezelis & Kominiarek, P.C., of Chicago (Algimantas Kezelis and James M. Hofert, of counsel), for appellant.
    Lord, Bissell & Brook, of Chicago (C. Roy Peterson, Hugh C. Griffin, and Edward J. Kowalski, of counsel), for appellees Du Page Die Casting Company and Universal Die Makers.
    Galliani & Kuzel, Ltd., of Chicago (Michael W. Rathsack, of counsel), for appellee PMS Consolidated.
   JUSTICE HARTMAN

delivered the opinion of the court:

This consolidated appeal by defendant, third-party plaintiff Abex Corporation, Denison Division (Abex), is from the circuit court’s dismissal of its third-party complaints seeking contribution from plaintiffs’ employers Du Page Die Casting and Fabrication Company (Du Page), Universal Die Makers (Universal) and PMS Consolidated (PMS) for injuries plaintiffs had allegedly sustained while operating punch presses which Abex had manufactured. The issues presented for review include whether: (1) comparative fault principles recognized in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, apply to third-party actions; (2) sections 1 through 5 of “An Act in relation to contribution among joint tortfeasors” (Act) (Ill. Rev. Stat. 1979, ch. 70, pars. 301 through 305) violate article IV, section 13 of the 1970 Illinois Constitution proscribing special legislation; and (3) section 1 of the Act (Ill. Rev. Stat. 1979, ch. 70, par. 301) applies to third-party actions accruing after March 1, 1978, or to the date upon which the underlying cause of action occurred.

In Ureostique v. Abex Corp., plaintiff alleged that he suffered serious injury to his right and left hands on November 12, 1975, when the punch press he was operating manufactured by Abex malfunctioned. Plaintiff alleged that the machine was defective when it left Abex’ possession. Abex later filed a third-party complaint against Du Page, plaintiff’s employer, in which it attributed any injury plaintiff may have suffered to Du Page’s failure to instruct and train plaintiff; its failure to provide plaintiff with certain safety devices; and general misuse of the press. Abex sought contribution in an amount proportionate to Du Page’s degree of fault. Du Page’s motion to dismiss Abex’ third-party complaint was granted.

In Justus v. Abex Corp., plaintiff alleged that he was seriously injured on January 14, 1978, while operating a punch press manufactured by Abex because of the machine’s defective design. Abex subsequently filed a third-party complaint against Universal, plaintiff’s employer, in which Abex asserted that even if its machine were defective, Universal was primarily responsible for plaintiff’s injuries because Universal did not equip it with an emergency stop mechanism and did not teach plaintiff how to operate the machine safely. Abex sought full indemnity or, in the alternative, contribution for that portion of plaintiff’s damages attributable to Universal. Universal’s motion to dismiss Abex’ third-party complaint was also granted.

In Moffit v. Abex Corp., plaintiff alleged that he was seriously injured on October 1, 1977, while operating a punch press manufactured by Abex, which he contended was defective in numerous respects. Abex filed a third-party complaint seeking contribution from PMS, plaintiff’s employer, in the event that a judgment was entered against it (Abex). The circuit court sustained PMS’ motion to dismiss Abex’ third-party complaint.

Abex contends that the supreme court clearly indicated in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, that liability should be apportioned on a comparative fault basis among all the parties responsible for plaintiff’s injury for all cases in which trial commences subsequent to June 8, 1981. Abex traces the development of the law in New York and California where the courts first recognized the principle of comparative negligence and then later adopted a theory of comparative indemnity. Such is the natural and foreseeable development of the law in this area, Abex contends, and it urges this court to follow that development and permit “equitable apportionment/indemnity” according to each individual defendant’s fault. A similar argument was raised in Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, in which defendant there argued that with the adoption of comparative negligence, “it is no longer rational to hold a defendant liable beyond his share of damages” (97 Ill. 2d 104, 120) and that “Alvis mandates that a tortfeasor should be liable only to the extent that his negligent acts or omissions produced the damages.” (97 Ill. 2d 104, 124.) The supreme court rejected this approach, retained the doctrine of joint and several liability, and approved language which would require wrongdoers to work out between themselves any apportionment of damages. (97 Ill. 2d 104, 123.) We believe that the foregoing language in Coney disposes of Abex’ proposed modification of the law in this regard. Such relief as Abex seeks would have been available to it under the contribution act, but for the occurrence dates of the underlying torts.

Abex next argues that in light of the present status of the common law, by virtue of Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, the Illinois contribution act clearly violates article IV, section 13 of the 1970 Illinois Constitution in that the Act bars defendants in causes of action arising before March 1, 1978, from seeking contribution from other individuals who may also have been at fault, but does not preclude plaintiffs who might also have been partially at fault from bringing a cause of action against them.

Article IV, section 13 only prohibits legislative classifications which are arbitrary or unreasonable. Those based upon “a rational difference of condition or situation existing in the persons or the objects upon which the classification rests” are sustainable. (Davis v. Commonwealth Edison Co. (1975), 61 Ill. 2d 494, 497, 336 N.E.2d 881; People ex rel. Vermilion County Conservation District v. Lenover (1969), 43 Ill. 2d 209, 218, 251 N.E.2d 175.) “Rational differences” do exist between a defendant seeking contribution and a plaintiff seeking compensation, in that plaintiff’s negligence relates only to his own failure to exercise reasonable care for his safety, whereas defendant’s negligence is based upon his failure to exercise reasonable care for the safety of others. See Verson Allsteel Press Co. v. Major Spring & Manufacturing Co. (1982), 105 Ill. App. 3d 419, 423-24, 434 N.E.2d 456, and American Motorcycle Association v. Superior Court (1978), 20 Cal. 3d 578, 589, 578 P.2d 899, 906, 146 Cal. Rptr. 182, 189, where this distinction was recognized.

In Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, the supreme court adopted a rule of general applicability which the court decided should be of prospective application only, in order to avert any hardship or injustice which might otherwise result if the new rule adopted therein were given retrospective application. The disparity of treatment upon which Abex dwells was the result of the supreme court’s decision in Skinner to apply that rule prospectively only. The issues before the court in Skinner and Alvis, though related, were distinct. (Johnson v. Hoover Water Well Service, Inc. (1982), 108 Ill. App. 3d 994, 1010-11, 439 N.E.2d 1284.) As the supreme court noted in Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 28, 163 N.E.2d 89, “It is within our inherent power as the highest court of this State to give a decision prospective or retrospective application without offending constitutional principles.” The United States Supreme Court so held in Great Northern Ry. Co. v. Sunburst Oil & Refining Co. (1932), 287 U.S. 358, 77 L. Ed. 360, 53 S. Ct. 145, as did the Fifth Circuit Court of Appeals in Prater v. Maggio (5th Cir. 1982), 686 F.2d 346. By merely codifying a change wrought in the common law by the court in Skinner, the legislature could hardly have offended these same constitutional principles. Courts have often given decisions overruling prior precedent prospective application only where hardship or injustice would otherwise result. Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 28, 163 N.E.2d 89; see also Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 359, 367 N.E.2d 1250; and Old Second National Bank v. Bynal Products, Inc. (1979), 79 Ill. App. 3d 432, 434-35, 398 N.E.2d 626.

Lastly, Abex contends that the Act permits defendants to file third-party complaints on or after March 1, 1978, where the third-party right of action arises after that date, notwithstanding the date upon which the underlying cause of action occurred. The supreme court in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, held that the new contribution rule should be applied prospectively only “to [those] causes of action arising out of occurrences on or after March 1, 1978.” (Emphasis added.) (70 Ill. 2d 1, 17.) The legislature subsequently adopted the Hlinois contribution act (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.) which this court and several other appellate courts have held essentially codified the Skinner decision. (Verson Allsteel Press Co. v. Major Spring & Manufacturing Co. (1982), 105 Ill. App. 3d 419, 434 N.E.2d 456; Johnson v. Hoover Water Well Service, Inc. (1982), 108 Ill. App. 3d 994, 439 N.E.2d 1284; Balmes v. Hiab-Foco, A.B. (1982), 105 Ill. App. 3d 572, 434 N.E.2d 482; and Harris Trust & Savings Bank v. Ali (1981), 100 Ill. App. 3d 1, 425 N.E.2d 1359.) Each of the occurrences here involved occurred before March 1, 1978. Abex’ argument in this regard is without merit.

For the foregoing reasons, the decision of the circuit court is affirmed.

Affirmed.

STAMOS and BERLIN, JJ., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HOWARD ROBERT McHERRON, Defendant-Appellant.
    First District (1st Division)
    No. 81 — 2746
    Opinion filed July 18, 1983.

      James J. Doherty, Public Defender, of Chicago (Timothy J. Chambers and Judith A. Stewart, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Thomas Wood Flynn, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Following a jury trial, defendant Howard Robert McHerron was convicted of aggravated kidnaping, home invasion, burglary, five counts of armed robbery and five counts of unlawful restraint. Prior to sentencing, the trial court vacated the burglary conviction and the convictions on the five counts of unlawful restraint. Defendant was sentenced to a term of 20 years on each armed robbery charge, 20 years for home invasion, and 15 years for aggravated kidnaping, the sentences to run concurrently.

On appeal, defendant contends that: (1) the State’s use of peremptory challenges to exclude all blacks from the jury violated his right to a fair trial; and (2) no evidence exists to support two of the five armed robbery convictions.

The relevant evidence adduced at trial reveals as follows. On July 18, 1980, at approximately 4 a.m., John Rodgers, Jr. (Rodgers), was forcibly stopped by defendant and two other assailants at 47th and Prairie in Chicago. Defendant and the two unknown assailants were armed with guns and, after taking Rodgers’ money, wallet, watch and a ring, forced Rodgers to take them to his family’s apartment. Rodgers, defendant and the two other men entered the apartment and found Rodgers’ mother, his two sisters Lorraine and Robin, and their boyfriends Clifford Wilks and Jerome McClendon inside. Once inside the apartment, defendant and his two accomplices, still armed with guns, proceeded to search the apartment and all of the occupants. They took numerous items of property, including $1,400 in cash, a .32-caliber revolver, a television, a stereo, jewelry and clothes.

I

Defendant first contends on appeal that through the use of peremptory challenges to exclude blacks from the jury, the State denied him his constitutional right to an impartial jury drawn from a representative cross-section of the community. Defendant argues that of the 12 prospective black jurors, two were challenged for cause, one served as an alternate but did not participate in the deliberations, and the other nine were peremptorily challenged by the State. Defendant asserts that the nine prospective black jurors were eliminated solely because of their race and that his conviction must therefore be reversed under the holding in People v. Payne (1982), 106 Ill. App. 3d 1034, 436 N.E.2d 1046. Payne, decided by the third division of the First District Appellate Court, held that the use of peremptory challenges by the State to exclude blacks from a jury during voir dire because they are black is a violation of a defendant’s right to a jury drawn from a fair cross-section of the community. 106 Ill. App. 3d 1034, 1037, 436 N.E.2d l046.

Defendant’s argument must fail, however, in light of the recent supreme court decision in People v. Williams (1983), 97 Ill. 2d 252. In Williams, the court rejected the same constitutional argument raised by defendant in this case and specifically declined to follow the Payne decision. Instead, the Williams court held that proof of a systematic and purposeful exclusion of blacks from juries in case after case because of race is required before a prosecutor’s use of peremptory challenges could be found to violate a defendant’s right to a fair and impartial jury. In reaching its decision, the supreme court stated:

“In People v. Davis (1983), 95 Ill. 2d 1, we rejected a contention by the defendant that the State’s exercise of peremptory challenges which resulted in an all-white jury deprived the defendant of a fair and impartial jury. We noted that the contention was contrary to Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, in which the Supreme Court held that an exercise of peremptory challenges which resulted in the selection of a jury composed of white jurors did not of itself show a constitutional violation. Under Swain, a constitutional issue of equal protection could not arise unless there was a systematic and purposeful exclusion of blacks because of race from juries in case after case. 380 U.S. 202, 223, 13 L. Ed. 2d 759, 774, 85 S. Ct. 824, 837.” 97 Ill. 2d 252, 274.

In the case at bar, defendant has failed to show a systematic and purposeful exclusion of blacks from the jury, as required under Williams. In the absence of such a showing, defendant’s contention that he was deprived of his constitutional right to a fair trial is without merit.

II

Defendant next contends that two of his five armed robbery convictions should be reversed because there was no proof that anything was taken from Lorraine Rodgers or Jerome McClendon. We agree.

Armed robbery is the taking of property from the person or presence of another by the use of force while armed with a dangerous weapon. (People v. Ditto (1981), 98 Ill. App. 3d 36, 38, 424 N.E.2d 3; Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2.) Whether there was a taking from the person or presence of another is a question of fact to be decided by the jury; the jury’s determination will not be disturbed on review unless the evidence presented is so unsatisfactory or improbable as to raise a reasonable doubt of defendant’s guilt. People v. Smith (1979), 69 Ill. App. 3d 704, 711-12, 388 N.E.2d 184.

Here, we find insufficient evidence for the jury to conclude that a taking had occurred with regard to Lorraine Rodgers and Jerome McClendon. The record reveals that Lorraine was in the living room when defendant and the others entered. She was told to lie on the floor and was searched. At trial, when asked if anything was taken from her during the search, Lorraine responded, “No, not right then.” Moreover, Rodgers testified that nothing was taken from his sister Lorraine, and Clifford Wilks stated that he did not know if anything was taken from Lorraine.

Similarly, although Jerome McClendon did not testify at trial, the record discloses that he also was told to lie on the living room floor and was searched, that Rodgers testified nothing was taken from him, and that Lorraine testified “nothing happened to Jerome.”

Upon this sole evidence, the State clearly failed to establish that a taking from Lorraine Rodgers or Jerome McClendon occurred, one of the critical elements of the offense of armed robbery. (See People v. Robinson (1981), 92 Ill. App. 3d 397, 416 N.E.2d 65.) Accordingly, we believe the evidence was so unsatisfactory as to create a reasonable doubt of defendant’s guilt and, therefore, his armed robbery convictions relating to these two individuals are reversed. See People v. Smith (1979), 69 Ill. App. 3d 704, 711-12, 388 N.E.2d 184.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part, and reversed in part.

Affirmed in part; reversed in part.

McGLOON and GOLDBERG, JJ., concur.

      The Williams court recognized that the third division of the First District Appellate Court followed Payne in the subsequent cases of People v. Gilliard (1983), 112 Ill. App. 3d 799, 445 N.E.2d 1293, and People v. Gosberry (1982), 109 Ill. App. 3d 674, 440 N.E.2d 954. It noted, however, that Payne had been considered and rejected by two other divisions of the court in People v. Newsome (1st Dist., 2d Div., 1982), 110 Ill. App. 3d 1043, 443 N.E.2d 634, and People v. Teague (1st Dist., 1st Div., 1982), 108 Ill. App. 3d 891, 439 N.E.2d 1066. People v. Williams (1983), 97 Ill. 2d 252, 275.