text:
    Joe Y. Shibata et al., Plaintiffs-Appellants, v. City of Naperville, Defendant-Appellant.
    (No. 70-172;
    Second District
    September 17, 1971.

      Rathje, Woodward, Dyer & Burt, of Wheaton, for appellants.
    Peregrine, Stime & Henninger, of Wheaton, (Hartman E. Stime, of counsel,) for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Plaintiffs, as the owners and contract purchasers respectively, applied for a rezoning of the subject property from R-2 (Two Family Residential) to B-l (Retail Business). The city denied the application. Plaintiffs filed a declaratory judgment action and now appeal from the judgment of the trial court denying relief.

The court found that all uses lying west of the easterly line of the subject property, both north and south of Chicago Avenue in Naperville are residential in character, with the exception of a small neighborhood grocery store with living quarters, which is a nonconforming use. Other uses in the area include a parcel of land, zoned M-l, located on the south side of Chicago Avenue and east of the easterly line of the subject property in an unincorporated area outside of, although surrounded by, the city. A material yard, a boiler works, buildings for storage, and a Commonwealth Edison Substation are located on this M-l property. Immediately east of the subject property and on the north side of Chicago Avenue there is a vacant 60 acre tract known as the “Tecton” property.

The court, after hearing conflicting expert testimony of appraisers and land planners and other evidence, determined that the residential uses in the area characterized the property; it thus held that the presumption of validity of the city zoning ordinance had not been overcome.

The principal issue raised by the plaintiffs relates to the controverted character of the Tecton property and its bearing on the court’s ultimate decision. Plaintiffs in their complaint alleged that the Tecton property was “vacant farm land zoned C-l” (Retail Business), and the city did not deny this in its answer. There was, however, evidence adduced at the trial from which the court found that the Tecton parcel — previously zoned R-l — had been rezoned by the city in 1963 to C-l but subject to a Declaration of Restrictions (which was referred to in the ordinance and subsequently recorded). By this Declaration the owner was severely restricted in his use of the Tecton property and gave up any right to construct R-3 (Multiple Family) buildings on the property, which otherwise would have been a permitted use in the C-l zone. The Declaration of Restrictions also contained the following provision:

“9. That this Declaration of Restrictions or any part thereof may be abrogated by a Resolution adopted by the City Council of the City of Naperville, Illinois, and the City Council shall be the sole legal entity that may enforce said covenants.”

The court further found that upon a petition by the owners of the Tecton tract, the city council, prior to the judgment below but after the filing of this suit, had adopted a Resolution abrogating the uses set forth in the Declaration of Restrictions and substituting R-3 uses with an added limitation of 9.85 units per acre. The court, in a memorandum opinion, questioned whether the city’s procedure was proper, but, noting that the zoning change was not subject to collateral attack, was of the opinion that tire Tecton property for the purpose of this proceeding would be considered as zoned R-3.

In his memorandum the trial judge extensively reviewed the evidence under the traditional zoning standards. He considered the elements of differing values in R-2 and B-l uses, traffic conditions, the nonconforming use to the west of the subject property, and the character of the neighboring property, including the Tecton tract and the industrial area to the southeast, south of Chicago Avenue. Applying the principles set forth in the authorities (e.g., Elmhurst Nat. Bk. v. City of Chicago (1961), 22 Ill.2d 396, 401-406; LaSalle Nat. Bank v. City of Chicago (1955), 6 Ill.2d 22, 29; Seith v. City of Wheaton (1967), 89 Ill.App.2d 446, 450, 451; Herzog Corp. v. City of Des Elaines (1954), 3 Ill.2d 206, 209) and in the posture of the case and the pleadings before the judge at the time he issued his memorandum opinion we would see no basis for reversal.

However, we consider the further argument of plaintiffs that the court erred in striking the second amended complaint which was filed upon a motion made some time subsequent to the date of the court’s memorandum opinion. The amendment added a Count II which alleged the invalidity of the restrictions attached to the C-l zoning of the Tecton property as “contract zoning” and also alleged that the later Resolution purporting to classify the property as R-3 was void as having been adopted without a public hearing as required by law. In the amended complaint the plaintiffs prayed that the court consider the property as C-l, without restrictions, in its determination of this case.

In our opinion, the court did not commit reversible error — if any error at all — in striking the amendment. The allegations contained in the second amended complaint do not affect the result even if the truth of the statements made therein is assumed. Plaintiffs have sought to attack only the restrictions on the C-l classification of the Tecton property and have thus sought to leave the C-l zoning classification in force and in effect. This is not a tenable position. It is conceded that the C-l classification of the Tecton property was conditioned upon the owner’s filing restrictive covenants as to uses permitted on the property, and it follows that if the restrictions are invalid, the zoning classification which was based and conditioned upon these restrictions is also invalid. Thus, assuming there was merit in plaintiffs’ attack upon the validity of both the R-3 and C-l (with Restrictions), this would result — for the purpose of this proceeding — in the Tecton property reverting to the R-l classification which preceded the C-l zoning. (Michigan-Lake Bldg. Corp. v. Hamilton (1930), 340 Ill. 284, 298). Even assuming that the trial court was in error in holding that the zoning classification of the Tecton property could not be collaterally attacked in this proceeding, its judgment would not be affected, for a court of review will not reverse a judgment which is the correct one even if it is based upon an incorrect reason. Rosehill Cem. Co. v. City of Chicago (1933), 352 Ill. 11, 33; Dvorson v. City of Chicago (1970), 119 Ill.App.2d 357, 365.

The plaintiffs also argue that the court committed reversible error when it refused to hold that defendant’s failure to expressly deny the allegation in the complaint that the Tecton property was zoned C-l constituted a binding judicial admission. We find from our examination of the record that the city consistently took the position throughout the trial that the Tecton tract, although zoned C-l, was subject to the Declaration of Restrictions and the subsequent resolution adopted by the city. Rosbottom v. Hensley (1965), 61 Ill.App.2d 198, is not helpful to plaintiffs under the circumstances of this case.

Considering the whole record, we are of the opinion that the plaintiffs did not sustain their burden of showing that the zoning classification of the subject property was unreasonable and unconstitutional. We, therefore, affirm the judgment of the trial court.

Judgment affirmed.

ABRAHAMSON and GUILD, JJ., concur.

       In addition, even if the granting of the C-l zoning conditioned on the Declaration of Restrictions constitutes contract zoning (and arguendo would thereby be void) and, further, even if the later Resolution zoning the Tecton property R-3 (in response to the Tecton property owner’s proposal to erect a multiple family unit development) were also to be held void because of the lack of the requisite public hearing and notice thereof, there are other serious questions present which are relevant to the merits of plaintiffs’ second amended complaint; first, a question is presented as to plaintiffs standing to attack the zoning of the Tecton property collaterally in this proceeding. In the cases cited by the plaintiffs (Whittingham v. Village of Woodridge (1969), 111 Ill.App.2d 147; Garner v. County of DuPage (1956), 8 Ill.2d 155 and Treadway v. City of Rockford (1962), 24 Ill.2d 488), it was the zoning of the adjoining property that was directly involved and not the zoning of petitioner’s property. Here the zoning of the adjoining property is only indirectly involved on the issue of the character of the surrounding property. Further, in Illinois, the legal status of so-caUed “contract zoning’’ appears not to have been decided although there is dicta in Treadway v. City of Rockford (1962), 24 Ill.2d 488 and Hedrich v. Village of Niles (1969), 112 Ill.App.2d 68 indicating disapproval of such ordinances. In the view we have taken of the case, we find it unnecessary to rule on any of these questions.


source: Caselaw Access Project

author: Mr. JUSTICE RECHENMACHER

license: Public Domain

text:
    Gilbert Redmon, Plaintiff-Appellee, v. Michael James Sooter, et al., Defendants-Appellants.
    (No. 70-194;
    Second District
    September 20, 1971.

      Rehearing denied November 3, 1971.

      Gates W. Clancy, of Geneva, for appellant.
    Maynard and Rrassfield, of Rockford, for appellee.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

This is an appeal from a judgment in favor of the plaintiff, Gilbert Redmon, and against the defendants, Michael James Sooter and Green Giant Company, a foreign corporation, in the amount of $70,000.00. The Jury answered a special interrogatory that Sooter was the agent of Green Giant and rendered a general verdict against both defendants jointly for $70,000.00. A post trial motion to vacate the judgment; to set aside the verdict; for judgment notwithstanding the verdict and for a new trial was denied.

A two-count complaint was filed by plaintiff on October 28, 1969. In Count 1 of the complaint, it was alleged that as a direct and proximate result of the negligent operation of a 1960 Ford track by defendant, Michael James Sooter, there was a collision between that truck and a 1965 Dodge truck owned and driven by plaintiff.

Count II was against Green Giant Company. The allegations of Count 1 were repeated therein and in addition, it was alleged that at the time of the collision Michael James Sooter was an employee of the defendant, Green Giant Company.

Defendants filed a motion to dismiss on the ground that plaintiff had previously elected his remedy under the Workmen’s Compensation Act by filing a verified application with the Industrial Commission setting forth that the injuries alleged were received while plaintiff was an employee of Green Giant Company within the definition of the Statute. The motion was denied, and the defendants then filed their affirmative defense based on the same grounds. Plaintiff’s reply denied the material allegations of the affirmative defense and denied that the allegations therein constituted a defense.

The record indicates that the plaintiff, Gilbert Redmon, was the owner of, and was driving his Dodge truck, loaded with sweet corn, in an easterly direction on Route 20. He testified that he had hauled corn, oats and beans for the Paw Paw Cooperative Grain Co. until about June 1, 1969, when he applied to Green Giant Co. to haul peas and corn for them. He did this until August 31, 1969, the date of the collision.

The defendant, Michael Sooter, was driving a truck northbound on Winnebago Road, carrying a gross weight of 25,000 lbs. The truck was owned by Gerald Marrs and leased to the Green Giant Company.

The collision occurred in the intersection of Route 20, and Winnebago Road. Plaintiff testified that he was hired to haul for the Green Giant Co.; that he furnished the truck and the driver (himself); that he paid his own expenses (i.e. gas, oil, maintenance, insurance, etc.); and that he was paid by Green Giant Go. with two checks — one for his track and one for himself.

Defendant testified that he was hired as a seasonal employee by Green Giant Co., that he attended a class in May, 1969, for those who did not have a chauffeur’s license. This was at the request of Green Giant Go., and in May, 1969, he was assigned to drive the Marrs vehicle. He had no ownership interest whatsoever in the Marrs truck, did not pay for any maintenance, and received his pay check from Green Giant Co. Mr. Sooter further testified that a couple of days prior to the accident he told the plaintiff he had noticed his brakes were “different.” Between that time and the accident, the brakes operated properly. As he approached the intersection, northbound on Winnebago Road, he applied his brakes 300 to 400 feet south of the intersection but passed completely through the stop sign at the intersection onto Route 20 without stopping. He first noticed the Redmon truck when it was to his left — “to the west” about 100 to 200 feet away. The impact took place right in the intersection, and the front end of Redmon s vehicle struck the truck driven by Sooter just behind the cab. Skid marks were left by the Redmon truck, but none by the Sooter driven vehicle. He testified that Mr. Redmon could not get out of his truck; Mr. Sooter was not injured and continued to work.

The plaintiff further testified that he never told anyone he was an employee of Green Giant Co. during the summer of 1969. Defendant attempted to introduce defendant’s exhibit No. 3, which was a certified copy of plaintiff’s application for adjustment of claim before the Industrial Commission, signed by both, the plaintiff, Mr. Redmon, and his attorney. The application states that Mr. Redmon, the plaintiff in this case, was injured while driving a truck for Green Giant Co. in the cotuse of his employment by Green Giant. The court refused to admit the said application into evidence.

Dr. Fancsali, the treating physician, testified as to plaintiff’s injuries and stated that plaintiff suffered a heart contusion for which he was treated by Dr. Keith Wrage; that in addition he suffered a cerebral concussion, abrasions and contusions about the face; a puncture wound of the right knee; a fracture of the right tibia, compound and comminuted, and a fracture of the right fibula. Dr. Fancsali also testified that plaintiff’s fracture extended into the knee joint, that such a fracture decreases the function of the knee motion, that range of motion was still limited, and that the patient had soreness.

The doctor further testified that the plaintiff had fracture lines extending into a major weightbearing knee joint; that there would be an increase in wear and tear; and that based on past experience and history, arthritis would most certainly develop. He stated that if arthritis that is incapacitating develops, it may be necessary to perform a surgical procedure to relieve tire pain or to regain motion if stiffness develops. The doctor further testified that the present limitation of motion in the knee could become a permanent condition and that Mr. Redmon could continue to have pain and suffering from the condition of the injuries received in the accident. Further, he testified that at the time of the trial the x-rays revealed near healing of the fractures; that the x-rays showed some minimal pre-existing hyper tropic arthritis in the lumbar spine; that there was some atrophy in the muscle of the right leg, and that Mr. Redmon was partially disabled for his regular occupation as a truck driver and it was hard to say how long this would continue.

Defendant now assigns as reversible error various grounds including four principal points. We discuss first, defendant’s claim that exclusion from evidence of plaintiff’s application for benefits to the Industrial Commission requires reversal of the judgment.

Plaintiff urges that the case of Springer v. Illinois Transit Lines, Inc., 318 Ill.App. 403, is controlling. In somewhat similar factual circumstances, it was therein held that Springer’s petition filed with the State Industrial Commission was properly excluded from evidence as immaterial. The Court said at page 409: “The allegation in such petition as to employment did not tend to establish or change the actual status of the decedent at the time he received the injuries.”

The issue in Bassi v. Morgan, 60 Ill.App.2d 1, was whether plaintiff was in the course of her employment at the time of her injury. That court distinguished the Springer case as “not applicable” because the Springer issue differed, being rather whether plaintiff when injured was an employee or an independent contractor (at page 6). Roberta Bassi was injured in Indiana while riding in a car driven by her employer, Richard Morgan. Affirmative defenses were filed alleging the occurrence arose in the course of plaintiff’s employment, that both plaintiff and defendant were bound by the provisions of the Illinois Workmen’s Compensation Act, and that plaintiff had no common law action against defendant. Plaintiff replied that although Morgan was her employer, she was not at the time and place of the occurrence in the course of her employment but was a non-paying guest-passenger. The trial court refused to admit into evidence her application to the Industrial Commission offered by defendant which stated she was injured in the course of her employment, and then struck Morgan’s affirmative defense which raised the issue of course of employment. Judgment for plaintiff was reversed because of the refusal to admit into evidence plaintiff’s application and because of “the consequence which followed. . .the striking of the affirmative pleas of the defendant...” (at page 6).

The Bassi court noted a variance in issues. We believe the Bassi holding is distinguishable from the instant case because no such consequence as deprivation of an affirmative defense followed the exclusion from evidence of plaintiff Redmon s application to the Industrial Commission. At trial there was lengthy testimony by various witnesses concerning the factual working arrangement between plaintiff and Green Giant Company. The jury heard final argument on plaintiffs status, and was instructed that if it found defendant had proven its affirmative defense that plaintiff was an employee of Green Giant Company, the verdict would be for defendants.

Korleski v. Needham. 77 Ill.App.2d 328, involved an action for injuries sustained by plaintiff in a collision with an auto driven by a decedent who was allegedly in the course of his employment. The complaint was brought against the administrator of the decedent’s estate and decedent’s corporate employer. The trial court admitted into evidence for the purpose of proving an admission against interest on the part of the employer corporation which recited in part that decedent was killed in an accident arising out of his employment. We note several factors in that situation which are absent in this case. Wig-more discusses the admissibility of statements against interest as an exception to the rule excluding hearsay, and specifies several requirements. First, there must be a necessity for resorting to hearsay, as the death or unavailability of declarant for testimony, and second, there must be circumstantial probability of trustworthiness when made. The fact stated must have been against interest at the time of the statement or else the influence for correctness would not operate. Wigmore, Evidence, (Third edition), Secs. 1455, 1456, and 1466. Under the circumstances of the Korelski case, this court affirmed admitting the settlement contract as an admission against interest and found no reversible error. We do not perceive that ruling as equivalent for holding that exclusion of plaintiff’s application to the Industrial Commission does amount to reversible error in the circumstances of this case. Such a statement is not, in any case, conclusive and essentially we agree with the Springer opinion that determination of plaintiff’s legal status, which is an ultimate issue, must be drawn from factual circumstances surrounding his relationship with Green Giant Corporation rather than from his own conclusional statement, self-serving when made. Aside from this single piece of evidence, the issue was thoroughly probed at trial, and we believe the jury’s verdict has a reasonable basis in the evidence.

Defendant’s second principal claim of error in this appeal concerns special interrogatories. Defendant tendered four of them, as follows:

“Was the defendant, Michael Sooter, guilty of negligence which proximately contributed to cause the occurrence in question?
“Was the defendant, Michael Sooter, an agent of the defendant, Green Giant Company, at the time of the occurrence?
“Was the plaintiff, Gilbert Redmon, an employee of the defendant, Green Giant Company, at the time of the occurrence?
“Was the plaintiff, Gilbert Redmon, an independent contractor of the defendant, Green Giant Company, at the time of the occurrence?”

The court gave the first two and expressed a willingness to give one or the other of the last two special interrogatories, but not both. Defendant withdrew both, saying his intention was to offer them in tandem. It is our opinion that defendant thereby waived any right to claim error, but even had he not, we approve the view of the trial court. Either of the last two interrogatories sufficiently tested the ultimate issue of plaintiff’s status against a general verdict. Reaching for more was unduly repetitious.

The thud principal assignment of error raised by defendant is that the medical expert testified as to mere possibilities and was allowed to give a second and inconsistent answer as to limitation of motion. The trial court examined the doctor’s testimony and the authorities submitted. The doctor, Dr. Fancsale, was also the treating physician. He was unfamiliar with legal phraseology, but it appeared to the court that he did give his opinion based on a reasonable degree of medical certainty as to the nature and extent of the plaintiff’s injuries and as to plaintiff’s future condition. When a doctor is asked to base his opinion on a reasonable degree of medical certainty, the certainty referred to is not that some condition in the future is certain to exist or not exist; rather the reasonable certainty refers to the general consensus of recognized medical thought and opinion concerning the probabilities of conditions in the future based on present condition. (Boose v. Digate (1969), 107 Ill.App.2d 418.) We believe the testimony of the doctor described the medical basis which might affect the plaintiff’s condition in the future and, in our opinion, his conclusions concerning future probabilities were not based on guess or surmise and were properly considered by the jury.

Defendant’s fourth principal claim was that plaintiff’s counsel’s remarks on closing argument were prejudicial. Defendant interprets remarks of plaintiff’s counsel as going to the use of a mathematical formula in computing pain and suffering. A reading of the transcript of the entire closing argument does not bear out this contention. The comments made were not, in our opinion, violative of the ruling set out in Caley v. Manicke, 24 Ill.2d 390, as defendant claims, but were in fact, fair comment, and in no way prejudicial to defendant.

We find no substantial merit in numerous other points raised in this appeal and therefore affirm the judgment of the Circuit Court.

Judgment affirmed.

SEIDENFELD and GUILD, JJ., concur.


author: Mr. JUSTICE GUILD.

text:
    Charlotte Prewoznik, Plaintiff-Appellee, v. Stanley A. Durka, Defendant-Appellant.
    (No. 70-265;
    Second District
    September 17, 1971.
    Stanley A. Durka, of Watseka, for appellant.
    James J. Reagan, of Northbrook, for appellee.
   Opinion by

Mr. JUSTICE GUILD.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    George Ash et al., Plaintiffs-Appellees, v. Arthur M. Barrett, Jr., Defendant-Appellant.
    (No. 70-180;
    Second District
    September 27, 1971.

      Allan I. Wolff, Jr., of Chicago, for appellant.
    John F. Grady, of Waukegan, for appellee.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

This suit involves the proposed rental of a house owned by defendant. After a lease was signed, defendant refused possession to the plaintiffs and an action for breach of contract was instituted. The court, in a bench trial, awarded plaintiffs $11,984.36 in compensatory damages and $5000 in punitive damages.

Defendant, on appeal, contends (1) he accepted plaintiffs repudiation of the executory contract thereby rescinding the contract, (2) compensatory damages awarded included items which could not have been reasonably anticipated at the time of the breach, and (3) the punitive damage award was improper.

All negotiations concerning the rental were carried on through a realtor. Dining the course of these negotiations, a dispute arose concerning three items: inclusion of a refrigerator, extension of the lease period, and a provision for lawn care. Due to the nature of the issues it is necessary to describe the negotiations in some detail.

In April, 1968, the plaintiffs, George and Sarah Ash, contracted to sell their residence with delivery of possession to be on June 30, 1968. Also in April, defendant decided to rent a house owned by him and arranged with John Channer of John Channer & Associates, Inc. realtors, to list it. The monthly rental was to be $635.00 with lawn care or $550.00 without. On May 9, Tom Bermingham, a salesman for Channer, showed the house to plaintiffs. They liked it immediately and decided to rent it. Ash noticed the house contained certain household appliances, including stereophonic equipment, and asked which of these items were included in the lease. Bermingham did not know. Later that afternoon, at Channels office, Ash told Channer he wanted to rent the house with lawn care and tendered a $1000.00 check.

On May 12, Channer notified defendant of the lease negotiations and took copies of the lease, which plaintiffs had signed, to defendant for signature. Defendant and Channer determined which of the personal property was to be included and defendant’s wife typed a description of this property on the lease. The refrigerator in question was not included. That evening Bermingham took the leases to the plaintiffs, they initialed the changes, and wrote a check for $635.00, the month’s rental including lawn care.

At this point all parties agree there was a valid lease. However, the next morning Ash noticed that the lawn care provision had been omitted. The plaintiffs contacted Bermingham to correct the error. Thereafter, an ensuing series of conversations between plaintiffs and the realtor and defendant and the realtor resulted in defendant’s decision to withhold possession.

Bermingham testified that when he arrived at the office the morning of May 13th, he was given a message to call Ash. Upon calling, Ash, in a loud voice, told him that the lawn care provision had been omitted and he wanted the lease extended from May 15, 1970, to June 30, 1970. Bermingham made a memo of the conversation which read “5/13/68. Mr. Ash wants lease extended to June 30, 1970 (additional six weeks) Also wants yard maintenance included in written lease, (signed) Tom.” Since he was leaving on vacation the next day, Bermingham went to plaintiff’s house, picked up the lease and gave it, along with the memo, to Channer to arrange the changes. While at plaintiff’s house, he talked with Mrs. Ash who said it would be more convenient if the lease were extended so they would not have to move while their children were still in school. Bermingham had no further connection with the dispute. On cross-examination he stated that he did not remember any discussion about a refrigerator at the time he showed plaintiffs the house and no mention of any statement by plaintiffs regarding a refrigerator was made during telephone conversations.

Channer testified that when he and defendant inspected the house defendant was definite about the refrigerator not being included. After Bermingham left, Channer had several telephone conversations with Ash during which Ash insisted the lease be extended, the lawn care provision be included and that Ash said “The refrigerator goes with the house or it’s no deal”. Channer, after one of the calls, wrote “Kitchen refrig (stays)” on the Bermingham memo. On May 15th, Channer called defendant and explained what he thought were Ash’s demands. The defendant said “If that’s the way he feels about it, forget it. There is no deal.” That afternoon Channer and his lawyer met with defendant. At the meeting defendant again stated that he did not want to rent the house giving as his reasons the extension of the lease, the refrigerator and the fact that his father was ill, and if something happened to him, he wanted the house for his mother. That evening Channer called Ash and advised him of defendant’s decision. Ash immediately said “We don’t care about the refrigerator. . . Get me the house”. During the next few days Ash repeated, several times, that they would take the house on the original terms.

Defendant, testifying on his own behalf and as an adverse witness, agreed that the lawn care provision was omitted in error, that he told Channer on the telephone the deal was off and that at the meeting he again refused to go ahead with the agreement. He added that he later was aware of plaintiff’s desire to take the house under the original terms, that plaintiffs had formaUy demanded possession by telegram and that the house remained vacant during the next few months.

Ash testified he only suggested, not demanded, that the lease be extended when he talked to Bermingham. He described the telephone conversations as “a lot of wrangling” and flatly denied ever telling Channer that the inclusion of the refrigerator was a prerequisite to their taldng the house. He testified further to his wiUingness to take possession under the original lease and his repeated demands for possession.

Mrs. Ash testified that when Bermingham picked up the lease to insert the lawn care provision they taHced about extending the period of the lease. She told him it would be nice but it would not make a difference if defendant did not wish to extend the term. She stated that the only time the parties discussed the refrigerator was during the inspection of the house, that they owned two refrigerators along with a freezer and would not have need for another one.

During May and June, plaintiffs advertised, without success, for rental housing. On June 28th they moved out of their house and stored their furniture. Plaintiffs checked with various motels in the area and rented two rooms in the least expensive one. For the next 100 days plaintiffs, their six children and their dog lived in these rooms. The motel provided no kitchen facilities so the family ate their meals in restaurants. During this period they continually searched for a house but found none. On August 10th they rented a house which was under construction with possession to commence after September 15th. On October 5th they moved into the home.

We first consider the contention concerning the repudiation of the contract by plaintiffs. On this point it is argued that the judgment was erroneous as a matter of law, or alternatively, that it was against the manifest weight of the evidence.

The testimony reveals that there was no direct conversation between plaintiffs and defendant. Instead all negotiations were conducted through the realtor. Defendant claims that plaintiffs’ telephone conversations with Bermingham on May 13th was a repudiation. However, Bermingham’s memo, made minutes after the caH, together with his testimony demonstrates that all plaintiffs requested was the addition of the lawn care provision (which all parties agreed should have been included) and defendant’s consideration regarding extension of the lease. This did not amount to an intent on the part of the plaintiffs toward nonperformance under the original agreement, thus, there was no repudiation.

The remainder of the evidence concerns the acts of the parties and the various conversations Ash and defendant each had with Channer. The evidence relating to these conversations was, in part, conflicting and contradictory: Ash testified that he never mentioned the refrigerator to Channer; Channer asserted Ash had said, if the refrigerator was not included, the deal was off; defendant’s statement to Channer of no deal; defendant’s statement that he wanted to keep the house vacant for his mother; plaintiffs immediate and repeated demands for possession; and defendant’s admission that the house remained unoccupied during the entire period.

Whether a repudiation occurred was a question of fact to be resolved by the trial court from the evidence presented. Especially where the evidence is conflicting, its decision should not be disturbed unless the holding is against the manifest weight of the evidence. Schulenburg v. Signatrol, Inc. (1967), 37 Ill.2d 352, 356. Manifest means: clearly evident, clear, plain or undisputable. Elgin Lumber & Supply Co., Inc. v. Malenius (1967), 90 Ill.App.2d 90, 97.) A review of this record leads to the conclusion that the decision of the trial court is neither incorrect as a matter of law or as being against the manifest weight of the evidence.

Defendant next contends that the compensatory damages awarded were not the type that could be reasonably anticipated. The court heard extensive testimony regarding plaintiffs’ search for housing, motel accommodations and meal expenses. The award made allowances for such items as the amounts the plaintiffs’ would have spent on rent, meals and other purchases had there been no breach. We find that the items allowed were of the nature which could have been reasonably anticipated by the defendant.

Finally, defendant contends that the award for punitive damages was improper. Plaintiffs amended their complaint several times during the course of trial in an attempt to conform their allegations to the rule applied in some jurisdictions. The rule being that punitive damages are permissible in exceptional cases for a breach of contract when the breach amounts to an independent willful tort. 22 Am.Jur.2d, Damages, Sec. 245. Here, the breach was evidenced by the defendant’s refusal of possession knowing that plaintiffs were living in a motel together with defendant’s willfully allowing the house to remain vacant. Both events occurred after the breach. This, in our opinion, does not make an unusual case for breach of contract and was properly remedied by compensatory damages.

The rule in Illinois is that in an action for breach of contract there can be no claim for punitive damages. Hayes v. Moynihan (1869), 52 Ill. 423, 426.

The judgment of the trial court awarding compensatory damages in the sum of $11,984.36 is affirmed but the judgment for punitive damages in the sum of $5000.00 is reversed.

Affirmed in part and reversed in part.

SEIDENFELD, and GUILD, JJ. concur.


text:
    In Re Estate of Oskar Naumann, Deceased, Petitioner-Appellee, v. Edith Vanderwerff, Respondent-Appellant.
    (No. 70-252;
    Second District
    September 27, 1971.

      John E. Juergensmeyer, of Elgin, for appellant.
    Hall, Meyer, Fisher, Holmberg, Snook & May, of Waukegan, for appellee.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

This appeal arises out of a citation proceedings instituted by the First National Bank of Lake Forest (petitioner), as Administrator with Will Annexed of the Estate of Oskar Naumann, to establish the ownership of three savings accounts opened in the joint names of the decedent and his niece, Edith Vanderwerff, the respondent. While various claims of error are raised, we find it necessary only to consider whether the decision of the trial court was against the manifest weight of the evidence.

The testimony of the respondent, both as an adverse witness and in her own behalf, established that decedent was a retired business man, alert and financially astute, who previously had opened several joint accounts; that he was 89 years of age at the time of his death; that respondent had provided food and transportation for him for several years; that he had given her his automobile and occasionally filled it with gasoline and that all of the funds in two of the accounts were monies of the decedent, although some of the deposits were physically made by respondent. Respondent said the third account contained some of her money but could give no specific amount. The account passbooks were identified by respondent, introduced as petitioner’s exhibits, and revealed that six withdrawals were made over a five and one-half year period: two were made by respondent shortly before the decedent’s death and are the subject of this appeal; the third, for $70, was not satisfactorily explained; the fourth was a $200 loan to a neighbor; the fifth a withdrawal of $6000 made by decedent in respondent’s presence and given immediately to her to do with as she pleased; and the sixth, of $1331.13, was made by respondent at decedent’s request. She kept all of this last withdrawal except $35 which she used to pay one of decedent’s doctor bills.

Respondent called as witnesses her son, her daughter in law, a man who lived on her property, and a family friend, all of whom described the care respondent provided for decedent and testified to her friendly relationship with him. She also called two employees of the financial institutions which had the accounts. One employee testified to the institutions’ practice explaining at the time such accounts were opened, the rights of the parties in and to joint accounts, including the fact that any of the tenants could withdraw the funds. The second employee, not only testified to the procedures followed by the institution, but also specifically remembered opening the joint account in question and recalled describing the nature of the account to the decedent.

In addition to calling respondent, petitioner called Phillip A. Bauer, the son of another of decedent’s nieces (who like respondent was a beneficiary under the will), Bauer’s father and a neighbor. The son testified he had been the administrator of decedent’s brother’s estate and had been a joint tenant with decedent for a time in an account which was solely for decedent’s convenience. When he fell into disfavor with decedent, the account was closed. This money was then deposited into an account, one and one-half years later, to which respondent’s name was added as a joint tenant. Bauer’s father testified that decedent once said both of his nieces meant the same to him and that the Bauers charged decedent approximately $60 a month for food and rent of a small house on their property. The neighbor testified that decedent had once said the accounts existed to enable respondent to pay decedent’s bills should he become incapacitated. By describing the care which each had provided, these witnesses attempted to rebut respondent’s testimony concerning the amount of care she claimed to have provided decedent.

In Illinois joint savings accounts are often employed as methods of making gifts. Our statutes provide that banks may pay the entire contents of a joint account to any tenant at any time whether the other joint tenants are living or not. (Ill. Rev. Stat. 1967, ch. 76, par. 2.) Our case law provides that the depository agreement between the parties presumptively establishes the donative intent necessary for a valid gift. One who challenges the existence of the donative intent must present clear and convincing evidence of its absence. Facts and circumstances surrounding the transaction and the happenings thereafter, may be inquired into to ascertain the presence or absence of donative intent. Dixon National Bank v. Morris (1965), 33 Ill.2d 156; Murgic v. Granite City Trust & Sav. Bk. (1964), 31 Ill.2d 587; Frey v. Wubbena (1962), 26 Ill.2d 62; In re Estate of Schneider (1955), 6 Ill.2d 180.

Here, parties agree that the respondent and decedent were joint tenants in the three savings accounts. Therefore, in accordance with Illinois law, the presumption of gift arose; however, petitioner contends that the presumption of donative intent was overcome by clear and convincing evidence that the accounts were established for the convenience of the decedent.

Petitioner argues that the evidence presents a picture of an aging man who had his nephew conduct his banking for him. When the nephew fell into disfavor, petitioner’s theory is that respondent merely replaced him as the person who aided decedent in his banking. Petitioner’s reliance on this theory is misplaced and respondent’s objection should have been sustained regarding tire testimony concerning Phillip A. Bauer’s account with decedent which was closed a year and a half prior to the opening of the joint account with respondent. It is improper to prove specific dealings with one person by testimony concerning specific dealings with another. Estate of Bors (1967), 83 Ill.App.2d 447, 454.

We look to petitioner’s remaining evidence for clear and convincing proof of lack of donative intent. The greatest portion of the testimony concerned the exact amount of care provided decedent by respondent as compared to the care provided by the Bauers. The most that can be said on this point was that the testimony was contradictory. The rest of petitioner’s evidence consisted of the following: a statement by decedent to Bauer’s neighbor to the effect that the accounts were established for decedent’s convenience; a statement to Bauer’s father, an interested party, that decedent wished to treat his nieces equaUy; an inference that decedent did not intend respondent to withdraw funds for her own benefit in light of the fact that he gave his specific permission for withdrawal of the $1331.13 and actuaUy made the $6000 withdrawal for respondent; and testimony concerning respondent’s payment of a single $35 doctor bill for decedent out of the several thousand dollars in the accounts. These items, viewed together and in the light of the testimony concerning decedent’s awareness of the result of opening a joint account, fall far short of being clear and convincing proof of lack of donative intent.

The trial court’s conclusion, that the accounts were established for the convenience of the decedent, was, therefore, in error and against the manifest weight of the evidence.

Judgment reversed.

GUILD and STROUSE, JJ., concur.


author: Mr. JUSTICE ABRAHAMSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ross Militell, Defendant-Appellant.
    (No. 70-272;
    Second District
    September 27, 1971.
    Frank Wesolowski, of Defender Project, of Wheaton, (Robert Heise, of counsel,) for appellant.
    William V. Hopf, State’s Attorney, of Wheaton, (Ralph J. Gust, Jr., and Malcolm F. Smith, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the comt:

The defendant was tried before a jury and convicted for the offenses of theft, burglary and criminal damage to property by the Circuit Court of Du Page County. This appeal is based on his contention that the trial court erroneously denied his pre-trial motions to suppress certain admissions and confessions made by him, and his consent to search his premises. A hearing on that motion was held by the court on October 1, 1969, and the following evidence presented.

At approximately 12:40 A.M. on June 27, 1969, officers James Russell and Bruce Eggert of the Elmhurst Police Department were directed to 228 North Addison Street in the city pursuant to a telephone call from a resident of the neighborhood. They found the defendant laying face down in a driveway moaning and complaining that he was having a heart attack. Donald Robbins was also at the scene and when the police noticed Robbins throw two cans of malt liquor into nearby bushes the officers advised both men that they would be arrested for public intoxication. Russell then read the so-called Miranda warnings to them from a card carried in his wallet and asked the defendant if he understood his constitutional rights. The defendant responded that he did understand and that he had a couple of beers earlier that night and that he was having trouble breathing. The defendant said he was in pain and asked the police to take him to the hospital. An ambulance was called and the defendant was carried by stretcher to the ambulance and driven to a nearby hospital where he arrived about 1:00 A.M.

Russell and Eggert followed the ambulance to the hospital and entered immediately after the defendant was admitted and found him on a cart bed still complaining of chest pains. Russell noticed that his eyes were red and that his mouth appeared to be dry. Although the defendant was responsive to questions and coherent, Russell was of the opinion he was under the influence of intoxicating liquors but not to the extent that he could not understand what was said to him. The defendant was examined by a physician who informed Russell and Eggert that he appeared to be under the influence of a drug. Russell then read the Miranda warnings to the defendant a second time and, as he and Eggert started to leave his hospital room, the defendant called them back and told them he had taken four “reefers and a half of tab”. He then admitted to the officers that he had committed the series of burglaries for which he was ultimately convicted and told them to go to his room where they would find the stolen property.

The defendant’s brother, also an Elmhurst police officer, arrived at the hospital after he had made his admissions to Russell and Eggert. He also thought the defendant was under the influence of liquor but was able to understand what was said to him and what was going on and was in “control of his faculties”.

After about an hour and a quarter at the hospital, the defendant was on his feet and taken to the Elmhurst police station where he arrived at 3:30 A.M. He was taken to the detective room at the station where, after the Miranda warning was read to him a third time, he signed a waiver of his rights to remain silent and gave a complete statement to detectives Moos and Dahleen. That statement was typed up and signed by the defendant at about 5:30 A.M. Although the defendant appeared tired and “mussed-up”, Moos was of the opinion that he was not under the influence of either liquors or drugs or that there was anything abnormal about his condition.

The defendant testified that he was 19 years of age on June 26, 1969 and that he was at a party in his apartment with a few of his friends on that evening. At about 9:30 P.M. he took a “half of tab of strawberry swirl” that he described as a compound of speed, acid (LSD) and methedrine. About 45 minutes later the defendant began to experience dizziness and hallucinations from the swirl but went to an adjoining apartment where he drank some beer and smoked marijuana cigarettes. He described the hallucinations as changing colors or “bleeding” of the walls. He returned to his apartment where he became sick and started to scream and pound his door for help. He ran from the apartment and collapsed in the driveway where he was found by the police. He remembered asking the police to help him but did not recall that he was advised of his constitutional rights until he was at the hospital. The defendant further testified that the walls at the hospital were also “bleeding” and though he recalled that the police officer read his rights to him there he did not recall that he made any response or that he understood them. He remembered nothing else until he was incarcerated in the county jail.

A psychiatrist who examined the defendant at the county jail also testified for the defense. He related that the defendant had, at one time, sniffed glue and had been discharged from the armed services for using drugs. It was his opinion that the defendant was a pleasure-seeking, insecure young man. He was unable, however, to give an opinion in response to a hypothetical question propounded to him based on the evidence in the record if the admissions or confessions were voluntary.

At the conclusion of the hearing, the trial court commented that the evidence showed that at all times the defendant was responsive to questions, was coherent, and appeared to understand what transpired around him and denied the motions to suppress.

The defendant here contends that the correct test to be applied to the case is not his responsiveness or apparent coherency at the time he was interrogated but rather the existence of the requisite free will to voluntarily waive his constitutional right to remain silent. His brief includes excerpts from medical journals to the effect that various objective physical symptoms can be detected after the ingestion of certain drugs. Marijuana, for instance, causes rapid heart beat and reddening of the eyes and speed or methadrine causes dry mouth. LSD, even when taken in small doses, can cause tightening of the chest, vivid hallucinations and delusions. More significantly, it is pointed out that some experts have found that LSD can induce a state of passivity or suggestibility in the user.

The United States Supreme Court did, in the case of Townsend v. Sain (372 U.S. 293, 9 L.Ed.2d 770, 83 S.Ct. 745), enunciate the rule in regard to the admission of confessions into evidence. “If an individual’s 'will was overborne' or if his confession was not 'the product of a rational intellect and a free will’ his confession is inadmissible because coerced. These standards are applicable whether a confession is the product of physical intimidation or psychological pressure and, of course, are equally applicable to a drug-induced statement [citations omitted.].”

Townsend, a confirmed heroin addict with sub-normal intelligence, was in custody and suffered severe withdrawal symptoms. A police physician gave Townsend an injection of hyoscine (a so-called truth serum) and he confessed to a number of previously unsolved crimes.

In Pea v. United States, 397 F.2d 627, cited by the defendant, the accused was in a hospital suffering from a concussion from a self-inflicted bullet in his head when he made an oral confession to a police officer. Although iff was uncontradicted that Pea was coherent, the examining physician testified that he was lethargic and indifferent to protect himself. Under these circumstances, the U.S. Court of Appeals, District of Columbia Circuit, found that Pea did not possess the free will and rational intellect as required by the Townsend rule since he was devoid of his normal will to protect himself and that the confession was inadmissible.

In Illinois, Section 114-11 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 114-11) provides that where, as here, a defendant moves to suppress a confession, the State has the burden to go forward with the evidence to prove that the confession was voluntary. The State need not prove the voluntariness beyond a reasonable doubt, however, but only by a preponderance of the evidence. (People v. Johnson, 44 Ill.2d 463, 470, 256, N.E.2d 343; People v. Coddington, 123 Ill.App.2d 351, 369, 259 N.E.2d 382.) In addition, the determination of the trial court on this issue will not be disturbed unless against the manifest weight of the evidence. People v. Mallett, 45 Ill.2d 388, 395, 259 N.E.2d 241; People v. Johnson, ibid.

It is, thus, necessary for us to weigh if the determination of the trial court, considered in light of the Townsend rule, was against the manifest weight of the evidence.

Officers Russell, Militell, and Moos, who testified at the pre-trial hearing, all agreed that the defendant appeared alert, responded to all questions put to him, and was coherent. Russell and Militell were of the opinion that he was under the influence of intoxicating liquor but was able to understand what was being said. Although the officer Militell admitted that he “jostled” his brother at the hospital, this was done after he had given his statements to Russell and Eggert. There was no other evidence of any physical coercion, intimidation or threats to the accused.

The only direct evidence that the defendant had used drugs on the night he was arrested was the testimony of the accused himself. His testimony contained numerous contradictions and inaccuracies and it appears that the trial court placed little credence on his testimony as to the quantity and effect of the drugs, if any, had had taken. He first stated that he had never taken a strawberry swirl before June 26 but then admitted he had taken two full tabs on June 25. He recalled that the Miranda warnings were read to him at the hospital before his brother arrived but then stated he did not recall if his brother was at the hospital at all. He also testified that he understood his constitutional rights but then denied that.

Although there was testimony that the defendant’s eyes were red, his mouth was dry and he had chest pains, all symptoms of drug use as listed in defendant’s brief, there was no evidence that his free will was overborne or that his statements were wrung from him during drug-induced passivity. Indeed, officer Russell testified that the defendant called him back into the room as he was leaving and gave him the initial statement. As we have seen, that original statement was repeated and expanded at the police station and signed by the defendant after it had been transcribed and nowhere does not appear that the statements, admissions and confession were suggested by his interrogators.

Although the defendant recognized his signature on the bottom of his confession, he testified that he did not recall signing it or making any statements to anyone. He recalled only the bleeding walls at the hospital and nothing at all that transpired at the police station. His testimony, if believed, would establish a complete and fortuitous (for him) blackout of everything that he did or said after he was given the Miranda warnings in the hospital.

Under the circumstances, the finding of the trial court was not against the manifest weight of the evidence and should be affirmed.

Judgment affirmed.

SEIDENFELD and GUILD, JJ., concur.


author: Mr. JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dennis P. Bryant, Defendant-Appellant.
    (No. 70-107;
    Second District
    September 29, 1971.
    Adamowski, Newey & Riley, of Chicago, for appellant.
    William V. Hopf, State’s Attorney, of Wheaton, (Malcolm Smith, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The defendant herein was indicted with one Larry Steen for the unlawful sale of a narcotic drug. He was represented by counsel of his own choice and by agreement of counsel was tried separately from Steen. The jury found the defendant guilty of the sale of marijuana, and he was sentenced by the court to serve ten to twelve years in the Illinois State Penitentiary.

On the evening of August 11, 1969, Detective Michael Ray, an undercover agent of the Du Page County Sheriff’s staff, dressed as a hippie, went to Sandy’s Drive-In in Addison. Sgt. Doria of the Du Page County Sheriff’s office gave the agent $40 in bills bearing previously recorded serial numbers. When Detective Ray arrived at Sandy’s Drive-in, he talked to Larry Steen about buying narcotics. They got into the back seat of a Ford. They were joined by Dennis Bryant, and a marijuana cigarette was allegedly lighted and passed around to the five people in the car. The agent then had a conversation with Larry Steen, in the presence of the defendant, about the possibility of Agent Ray buying a “lid” ($20) of marijuana. Steen told Ray that he could not do so. Steen then asked the defendant if he could get him a “nickel bag” ($5) of marijuana to tide him over. Detective Ray then gave the defendant Bryant $5 of the recorded money and Bryant drove off. The defendant returned about half an hour later and said he could not get it. He then left and returned in a 1956 Chevrolet driven by an unknown party. Larry Steen approached the Chevrolet on the passenger side, and Agent Ray saw defendant Bryant hand Larry Steen a white envelope through the window on the passenger side. Steen then went to Ray’s vehicle and placed the envelope on the front seat of Ray’s car. The agent took down the license number of the Ford automobile that the defendant had originally come in as LC 9851. The agent drove to Detective Dorias house and gave the envelope to him which was introduced in evidence as State’s Exhibit No. 1 and its contents was identified as marijuana by Gloria Kratz, an analyst for the State of Illinois, Department of Law Enforcement, Bureau of Identification.

The defendant has urged four grounds for reversal. The principal contention of the defendant is that he was denied a fair trial by the introduction of testimony of a Mr. and Mrs. Thomas J. Quinlan. The defendant took the stand and testified in his own behalf. On cross-examination the State’s Attorney asked the defendant if he knew the daughter of Mr. and Mrs. Quinlan. An objection was made and in chambers out of the presence of the jury the State’s Attorney stated:

“I have evidence he has said to Mr. and Mrs. Quinlan he has smoked marihuana in 1963 and he has smoked it at other times and he doesn’t see anything wrong with it.
This is material to the question which goes to his propensity, to deal in and be associated with this particular type of drug.” Emphasis supplied.

The trial judge sustained the objection. However, the State’s Attorney proceeded with the cross examination and the following colloquy took place:

“Q: You indicated in answer to your counsel’s question that you never sold marihuana to Michael Ray or anyone else, is that correct, sir?
A: Yes, sir.
Q: Did you ever give marihuana to anybody else?
A: No, sir,
Q: Never?
A: No, sir.
Q: In your entire life?
A: No, sir.
Q: Did you ever admit to anybody you gave marihuana to them?
A: No, sir.
Q: Do you know a girl by the name of Geralyn—
Mr. Knott: I am going to object, Judge, on the same grounds.
Mr. Labaia: I would like to be heard.
The Coubt: The objection is overruled. Proceed.
Mr. Labaia: Thank you.”

The defendant denied he had told the mother and father of Geralyn Quinlan that he had given marijuana to her. The State’s Attorney in chambers said he had evidence the defendant had told Mr. and Mrs. Quinlan that he had given marijuana to their daughter. The court at this time said “He is not charged with giving or dispensing to Geralyn Quinlan.” However, again the court allowed the State’s Attorney to proceed in cross examination, and defendant was questioned as to his association with one Geralyn Quinlan (17), her parents’ disapproval of his association with her, and a meeting with them in October, 1969. This line of questioning was permitted on the theory of laying a foundation for impeaching of defendant’s denial that he had ever sold or given marijuana to anyone. The defendant denied specifically that he at any time gave or said he gave marijuana to Geralyn. Defendant’s counsel moved for a mistrial on the ground that this line of questioning was prejudicial and for the pmpose of inflaming the jury. This motion was denied. In addition to this, the defendant was asked if he knew where Geralyn was when she stayed out all night at one time.

The State then called Mr. Quinlan, and over the objection of the defendant that such questioning was highly prejudicial and inflammatory, the witness was allowed to state he had ten children, including eight daughters; that he had a conversation with the defendant on the night of November 10, 1969; that defendant told him he smoked marijuana, had smoked it in the presence of his 17 year old daughter, Geralyn, and had given it to her. Mrs. Quinlan also testified similarly concerning the conversation with the defendant on November 10 in which he said he smoked marijuana and had given it to her daughter.

This testimony was followed by testimony of the mother of the defendant that on a night it was hinted defendant had kept Geralyn out all night, he had not done so. Geralyn Quinlan testified that she did not smoke marijuana, and that she had never seen defendant have it or use it, and that she wished to marry him but her parents opposed it.

In closing argument the State dwelt extensively on the Quinlan testimony, stating that the States Attorneys office knew that he had admitted using marijuana as early as 1962 and saw nothing wrong with it; that he gave it to the Quinlans daughter and smoked it with her. The prosecutor stated that when the Quinlans said that they didn’t like what the defendant stood for, that “narcotic drug addiction is what they are talking about”; the State’s Attorney then stated that the real victims of the situation before the jury were people like Geralyn Quinlan and older people like her mother and father. He reminded the jury that Mr. Quinlan didn’t want Geralyn to marry the defendant for an obvious reason, and that she would sneak out of the house early in the morning and stay out until 6:00 A.M. to visit him. After extensive reference to the Quinlan testimony, the prosecutor then told the jury that this was just a side issue.

This court is unable to believe that the Quinlan testimony, coming as it did just before the case went to the jury, and the great emphasis placed on it by the State in its argument, did not have a profound affect on the jury. We do not of course believe that the jury was so far affected as to think that it was just trying the defendant for contributing to the delinquency of a minor by allegedly meeting her in the early morning hours and smoking marijuana in her presence. But we must agree with the prosecutor, as he said, that the purpose of the testimony was to show the “propensity” of the defendant “to deal in and be associated with this particular type of drug.” This was alleged evidence of criminal conduct undoubtedly prejudicial in effect, with little probative value.

The appellee has cited People v. Hudson (1971), 286 N.E.2d 481, in support of its contention that the decision should be sustained. In that case, the court stated that the testimony as to what was said was “all part of continuous narrative” and that was certainly not the factual case here with respect to the Quinlan testimony. The court there further found that the closing argument did not prejudice the defendant, and that evidence was not introduced for the sole purpose of showing defendant’s propensity toward committing crimes like the one for which he was indicted.

It has been said that the law distrusts the inference that because a man has committed other crimes he is more likely to have committed the current crime. And so, as a matter of policy, where the testimony has no value beyond that inference, it is excluded. (People v. Lehman (1955), 5 Ill.2d 337, 125 N.E.2d 506.) That does not mean that if it is independently relevant, it might not be admitted.

In People v. Meid (1970), 264 N.E.2d 209, this court said: “This testimony amounted to proof of an offense by the defendant, other than the one for which he was on trial. While proof of other offenses is relevant under certain conditions, e.g., evidence which establishes motive, intent, identity, accident or absence of mistake (citation), none of those conditions are here met. In the instant case, the only purpose of the testimony was to show a propensity on the part of the defendant to commit this kind of crime, and this is specifically the purpose for which evidence of other offenses is held inadmissible [citations].”

The testimony of the Quinlans amounted to an attempt to prove an alleged offense by the admission of the defendant, other than the one for which he was on trial. While proof of other offenses is relevant under certain conditions, i.e., evidence which establishes motive, identity, intent, accident, or absence of mistake, the conditions were not here met. People v. Dewey (1969), 42 Ill.2d 148, 246 N.E.2d 232; People v. Cole (1963), 29 Ill.2d 501, 194 N.E.2d 269; People v. Steele (1961), 22 Ill.2d 142, 174 N.E.2d 848.

The only purpose of the testimony of the Quinlans as stated by the prosecutor was to show the propensity on the part of the defendant to commit this kind of a crime, and that is specificaHy the purpose for which the evidence of other offenses is held inadmissible. People v. Baxter (1966), 74 Ill.App.2d 437, 221 N.E.2d 16; People v. Meid, supra; People v. Brown (1967), 83 Ill.App.2d 457, 228 N.E.2d 505.

In view of our ruling above it is not necessary that we consider the other issues raised by defendant in this appeal. However, we wish to note that testimony of Agent Ray before the jury, that two days subsequent to the alleged offense, the defendant said “He was thinking about going up to Lake Geneva, Wisconsin, and bring back some SMAC. SMAC is — well, hippie talk or young people’s talk for heroin, sir.” This testimony was of no probative value except to show propensity to commit this kind of an offense. Its admission was obvious error. People v. Brown, supra.

Reversed and remanded.

MORAN, P. J. and ABRAHAMSON, J., concur.


author: Mr. JUSTICE TRAPP Mr. Presiding JUSTICE SMITH,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Johnson, Defendant-Appellant.
    (No. 11415;
    Fourth District
    October 8, 1971.
    Edward Litak, of Defender Project, of Danville, for appellant.
    Everett Laury, State’s Attorney, of Danville, for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

A jury found defendant guilty of the murder of one, Petty. Sentence to the penitentiary for a term of 30 to 70 years was imposed. Upon this record we conclude that it was error for the trial court to refuse defendant’s tendered instruction defining voluntary manslaughter as in Ill. Rev. Stat. 1969, ch. 38, par. 9 — 2 (b), and to submit an appropriate verdict form to the jmy.

It appears that defendant was a resident of the household of one Arilla Duckworth and contributed to the expense of maintaining it. The latter’s daughter, Dorothy Thigpen, stayed at the home from time to time during the week. It appears that Petty had called at the residence where he had laid down with his shoes on the couch and gone to sleep. Dorothy Thigpen testified that at the time of the shooting she was in the living room with the decedent, and that defendant came in and told decedent to get up and go and insisted that he sit up. She testified that Petty stood up, three shots were fired and he was mortally wounded. Defendant then left the house but waited nearby and returned when the police arrived and surrendered the weapon. Sally Mullins testified for the prosecution that she was in the kitchen at the time of the shooting, that she heard defendant ask Petty to leave and Petty said he wasn’t going, and then she heard three shots. She also testified that defendant was not under the influence of liquor.

Defendant testified that he twice shook Petty who jumped up; that Petty looked funny out of his eyes and that there was something wrong with him. He compared it with the look of one who used drugs. He testified that he knew decedent carried a knife and that he, the defendant, was afraid of Petty because the latter had broken a woman’s leg with a piece of iron pipe. He testified that Petty started towards him saying, “I’ll take that away from you and beat your brains out”; that he, the defendant, had backed up across the room and fired three times when he didn’t have a chance to run. Defendant explained his carrying the gun by saying that he had been threatened by a gang or group of boys who carried knives.

Defendant testified that there had been no arguments with the decedent, and that he got the gun out when Petty said that he would beat defendant’s brains out.

The record shows that the decedent was a man 30 years of age and described him as very muscular. Defendant’s description of the size and weight of Petty seems to be somewhat exaggerated. Defendant himself was a man aged 56 years and of ordinary strength.

Upon these facts, the defendant tendered and the court gave an instruction on use of force in defense of the person in the language of IPI-Criminal, par. 24.06. The court refused, however, to give defendant’s tendered Instruction No. 3 in the language of IPI-Criminal, par. 7.05:

“A person commits the crime of voluntary manslaughter who intentionally or knowingly kills another if, at the time of the killing, he believes that circumstances exist which would justify the killing, but his belief that such circumstances exist is unreasonable.”

Such instruction would define for the jury the offense of voluntary manslaughter as in Ill. Rev. Stat. 1969, ch. 38, par. 9—2 (b). The court also refused to give defendant’s tendered instruction in the language of IPI-Criminal, par. 7.06, stating the issues in the offense of voluntary manslaughter.

It is the accepted rale that if there is evidence in the record which, if believed by the jury, would reduce the offense to manslaughter, an instruction defining the offense should be given. (People v. Latimer, 35 Ill.2d 178, 220 N.E.2d 314 and People v. Harris, 8 Ill.2d 431, 134 N.E.2d 315.) In People v. Guthrie, 123 Ill.App.2d 407, 258 N.E.2d 802, this division held it to be reversible error to refuse to give defendant’s instruction defining involuntary manslaughter upon the State’s Attorney’s objection that the offense was murder or nothing. There, as here, the testimony of defendant was the only evidence supporting the possibility of manslaughter. See also People v. Williams, 95 Ill.App.2d 421, 237 N.E.2d 740.

In giving defendant’s instruction on the justifiable use of force, the trial court here determined, as a matter of law, that there was sufficient evidence on that issue for the consideration of the jury. When the trial court determined that the facts in evidence justify or require the giving of an instruction on the justifiable use of force, there are, in fact, three alternatives for the consideration of the jury, i.e., (1) murder, (2) that the use of force was justified and self defense was demonstrated, or (3) that while the defendant might have believed that the use of force was necessary under the evidence, such belief was unreasonable.

Here, the given and refused instructions required the jury to determine that there was either murder or justified self defense, and they were, in fact, barred from consideration of the statutory offense which results when force is used unreasonably as defined in Ill. Rev. Stat. 1969, ch. 38, par. 9—2 (b).

It was the rationate of Guthrie that it was for the jury to make a choice of the several offenses which the evidence may disclose.

The judgment below is reversed and the cause is remanded for a new trial.

Reversed and remanded.

CRAVEN, J„ concurs.

Mr. Presiding JUSTICE SMITH,

dissenting:

Guthrie, in my opinion, stands for the very reasonable proposition that if there is sufficient evidence to support a jury verdict either of murder or manslaughter the jury should be instructed as to both. I do not question the statement that the testimony of a defendant standing alone may be “sufficient evidence”, but I think it is incorrect to cite Guthrie as authority, because as I read that case, there was other supporting evidence.

Be that as it may, I do not believe that a finding that there are facts sufficient to require the giving of an instruction on justifiable use of force, ipso facto, requires the giving of an instruction on voluntary manslaughter — the so-called third alternative. To me, the idea or concept of self-defense does not axiomatically include the idea or concept of voluntary manslaughter. This is not to say that they are mutually exclusive, only that facts which support one may not support the other. The majority would have us believe that in every case where IPI-Criminal, ¶24.06, is given (self-defense) then IPI-Criminal, ¶ 7.03 et seq. (voluntary manslaughter) must be given. In other words, a determination as to one question of law mandates the giving of two conceptually different instructions. I think there are two questions of law involved, that is, are there sufficient facts to support one (self-defense) and are there, again, sufficient facts, to support the other (manslaughter) ?

Of course, the same facts could put both concepts in issue. But there are still two questions of law that must be answered, not one. But as I have said, I think it is also true that we could be presented with a factual context which would rule out manslaughter, but support an instruction on self-defense and vice versa.

Here, I believe the tendered instructions were properly refused for the reason that there was not sufficient evidence to raise the issue of manslaughter. And, as I have said, I do not believe that a determination of the propriety of giving an instruction on self-defense mandates the giving of the tendered instructions on manslaughter. In this, I think, I am buttressed by the Committee Comment to IPI-Criminal, 7.05, Voluntary Manslaughter:

“When the charge is murder, the defense is self-defense, and the proof supports a voluntary manslaughter instruction and verdict, the order of instructions should be: #

To me this is an implied direction that a voluntary manslaughter instruction should not be given if the proof doesn’t support it. Indeed, the Committee’s Comment to IPI-Criminal, sec. 24.06 (self-defense) says nothing to the effect that in giving this instruction, a manslaughter instruction must also be given. If the majority is right, then surely a comment here would be very much in order as one of the prime purposes of pattern instructions is to relate one instruction with another if such is in fact the case. To me such silence is instructive.

I assume, because defendant did in fact tender manslaughter instructions, that if defendant had not done so, the majority would not reverse. But they do not say so, and the statement that a determination of the propriety of an instruction on justifiable use of force presents “three alternatives for the consideration of the jury”, one being “that while the defendant might have believed that the use of force was necessary under the evidence, such belief was unreasonable”, leaves one wondering. If they do mean to say that the issue of manslaughter is raised by the giving of an instruction on self-defense, regardless of whether a manslaughter instruction is requested by the defense, trial courts in the future are left in an untenable position. Let us assume that there is sufficient evidence to justify a tendered instruction by the defense on justifiable use of force, but no tender of an instruction on voluntary manslaughter, and therefore none is given. If a conviction for murder does result, can it be argued on appeal that it was error for the court not to have given on its own an instruction on this issue? Seemingly, under the majority’s holding, such is now possible, but I do not believe that this should be so.

For these reasons, I dissent.


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Robert Coagan, Defendant-Appellee.
    (No. 70-292;
    Second District
    October 1, 1971.

      William V. Hopf, State’s Attorney, of Wheaton, (Ralph J. Gust, Jr., Assistant State’s Attorney, of counsel,) for the People.
    Edward M. Genson and Bernard Brody, both of Chicago, for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The defendant, Robert Coagan, was charged with knowingly and unlawfully selling to one Bobby Hall a quantity of amobarbital and secobarbital on May 11, 1970, otherwise than as authorized in the Drug Abuse Control Act and in violation of section 802(b) thereof (Ill. Rev. Stat. 1969, ch. 111½, par. 802.) The defendant filed a motion to dismiss the complaint on the grounds that the complaint did not charge an offense under that statute. The trial judge granted the motion to dismiss the complaint, and this appeal by the State followed.

The motion to dismiss the complaint, and a memorandum of law in support thereof, in essence alleged that the defendant was a licensed apprentice pharmacist and employed by a drug store in Hinsdale, Illinois, and stated that the sole issue involved relates to the necessity of a pharmacy having a prescription in order to regularly dispense depressant or stimulant drugs under the Act. (Ill. Rev. Stat. 1969, ch. 111½, par. 802.) The motion further alleged, after reciting the provisions of various paragraphs of that statute, that there is no requirement that a pharmacy receive a prescription prior to the time there is a dispensing of any stimulant or depressant drug.

The court filed a written memorandum when it dismissed the charges filed against the defendant, and said that it had read the motion and the statutes, heard the arguments and checked out section 417 of the Public Health Statute and section 22—18 of the Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, par. 22—18), wherein the legislature had said in plain language that certain drugs could only be sold upon written prescription and had concluded that “there is not present in the new Drug Abuse Control Act unequivocal, plain and direct language which compels a depressant or stimulant drug as defined in the definitions to be dispensed by a Pharmacy pursuant to a written prescription * # # that if the legislature meant for a Pharmacy to secure a prescription before there was any dispensing of a depressant or stimulant drug, it could have said so with the same ease that it said so in Chapter 38, Section 22-18 and Chapter 111½, Section 417.” We note that section 417, referred to by the court, had been repealed and was not in effect at the time of the offense. That section was replaced by section 516 (Ill. Rev. Stat. 1969, ch. 56½, par. 516), which states that certain drugs be dispensed only upon prescription.

The pertinent statutory provisions of the Drug Abuse Control Act (Ill. Rev. Stat. 1969, ch. 111½, pars. 801 through 812) are as follows:

“802. Prohibited acts. § 2. The following acts and the causing thereof are prohibited:
(b) The sale, delivery, administering, inducing another person to use or other disposition of a drug in violation of Section 7(b). 807. * * * (a) No person shall manufacture, compound or process in this State any depressant or stimulant drug, except that this prohibition does not apply to the following persons whose activities in connection with any drug are solely as specified in this subsection:
(7) Pharmacists dispensing depressant or stimulant drugs pursuant to a prescription, order or other direction of a practitioner licensed by law in this State to administer depressant or stimulant drugs. This exception does not apply if the prescription, order or other direction is known by tire pharmacist to be fraudulent.
(9) An employee or agent of any person described in paragraph (1) through paragraph (7) of this subsection and a nurse or other medical technician under the supervision of a practitioner licensed by law in this State to administer depressant or stimulant drugs, while such employee, nurse or medical technician is acting in the course of his employment or occupation and not on his own account.
(b) No person other than:
(1) A person described in subsection (a) while such person is acting in the ordinary or authorized course of his business, profession, occupation or employment, * * *” Emphasis added.

While the provisions of the Drug Abuse Control Act are somewhat complicated, by referring from one section to another, we can conclude the following:

“No person other than:
Pharmacists dispensing depressant or stimulant drugs pursuant to a prescription, order or other direction of a practitioner licensed by law in this State to administer depressant or stimulant drugs.
* * * While such person is acting in the ordinary or authorized course of his business, profession, occupation or employment, * * *
* * * shall sell, deliver, administer or otherwise dispose of any depressant or stimulant drug or counterfeit drug to any other person or induce any other person to use any such drug.”

and that an employee or an agent of a person exempted is exempted also under section (9):

“* * ” while such employee, nurse or medical technician is acting in tire course of his employment or occupation and not on his own account.”

The motion to dismiss the complaint was filed pursuant to section 114 — 1(a)(8) (Ill. Rev. Stat. 1969, ch. 38, par. 114 — 1), which applies to motions to dismiss for the specific reason that “the charge does not state an offense.”

The defendant is charged as a “person” under the Drug Abuse Control Act, which makes it unlawful for any person not exempted to sell a depressant or stimulant drug to any other person. It does appear, therefore, that although the statute is somewhat complicated, nevertheless, upon reading the necessary sections in conjunction with each other, the complaint does state an offense. The unverified motion of the defendant to dismiss the complaint states that he is a licensed apprentice pharmacist, employed in a drug store in Hinsdale, Illinois, yet it is difficult to follow the argument of the defendant that a pharmacist must obtain a prescription but that an apprentice pharmacist need not obtain a prescription because he is an employee of a Pharmacy and, therefore, he can sell the prohibited drugs without a valid prescription. Pharmacies are exempted from prosecution under this Act only if they “maintain their establishments in conformance with State and local laws regulating the practice of pharmacy and medicine which are regularly engaged in dispensing drugs upon prescriptions of practitioners licensed in this State * * *,” as stated in section 807(a)(4). (Ill. Rev. Stat. 1969, ch. 111½, par. 807.) The Drug Abuse Control Act is not vague and thus, not unconstitutional. The alleged sale of the drugs involved is prohibited without obtaining a prescription therefor.

The defendant is charged as a “person” and not as a licensed apprentice pharmacist. The fact that he is a licensed apprentice pharmacist does not exempt him from a violation of the Act under the requirement of section 807 (b) (1), for that section requires that a person to be exempted must, under subsection (a), be “acting in the ordinary or authorized course of his business, profession, occupation or employment.” Furthermore, an employee or an agent of a person exempted is exempted only if under section 807 (a) (9) he “is acting in the course of his employment or occupation and not on his own account.” Even though we accept the statement in the defendants motion that he is “a licensed apprentice pharmacist” as admitted, he is an exempted person under the Act only if at the time he made the sale he had received a valid prescription, was acting in the ordinary or authorized course of his employment, and not on his own account. The allegation of the complaint is that the sale was made otherwise than as authorized in the Drug Abuse Control Act. It is clear from the defendant’s motion that he does not contend that he had received a valid prescription prior to selling the prohibited drug. If the defendant believes that the complaint does not allege sufficient facts for him to prepare a defense thereto, he can file a motion for a Bill of Particulars pursuant to section 114—2 Ill. Rev. Stat. 1969, ch. 38, par. 114—2.

It is apparent that the legislature, in enacting the Drug Abuse Control Act, intended to control the distribution of dangerous drugs so that they are only distributed or sold by authorized persons acting in the authorized course of their employment, and to persons presenting a valid prescription.

Accordingly, the judgment of the trial court dismissing the complaint is reversed, and the case is remanded for further proceedings consistent with the opinions expressed herein.

Reversed and remanded.

SEIDENFELD and GUILD, JJ., concur.


author: Mr. PRESIDING JUSTICE SMITH,

text:
    Mildred Haskett, Plaintiff-Appellee, v. Lewis Baker, Defendant-Appellant, (Paul M. Daniels, Defendant.)
    (No. 11478;
    Fourth District
    October 8, 1971.

      Craig & Craig, of Mattoon, (Jack E. Horsley and Richard F. Record, Jr., of counsel,) for appellant.
    Harlan, Heller, Ryan and Heller, of Mattoon, for appellee.
   Mr. PRESIDING JUSTICE SMITH,

delivered the opinion of the court:

Plaintiff was a passenger in the car of the defendant Baker when it was involved in an intersection collision with a car of the defendant Daniels. Her driver was charged with wilful and wanton misconduct and the defendant Daniels was charged with ordinary negligence. The jury returned a verdict finding the defendant Daniels not guilty and the defendant Baker guilty. Judgment was entered on these verdicts and the defendant Baker alone appeals. He contends that under the rule in Pedrick v. Peoria & Eastern RR. Co., 37 Ill.2d 494, 229 N.E.2d 504, the defendant’s motion for directed verdict should have been allowed since such a verdict is appropriate when it may be said that the evidence viewed most favorably to the plaintiff so overwhelmingly favors the defendant that no contrary verdict based on the evidence would ever stand. We affirm the trial court.

Baker was proceeding in an easterly direction as he approached a preferential highway protected by stop signs. Plaintiff was a passenger in the front seat of his car. The defendant Daniels was proceeding north on the preferential highway with a passenger in his car. There is a dispute in the evidence as to whether Baker stopped at the stop sign. He and his passengers stated that they did; Daniels and his passenger stated otherwise. Both drivers were familiar with the intersection. The defendant Baker, 84 years old, testified that he stopped at the stop sign, looked in both directions and proceeded at three to five mph to cross the preferential highway. Plaintiff likewise testified that her driver stopped at the stop sign. The stop sign was 20 to 25 feet back from the edge of the pavement. Baker testified that at the stop sign he had unobstructed vision to his right or to the south for a distance of 500 feet, that he proceeded slowly without increasing his speed or turning his car in any direction and the front end of his car had reached the black line or a little over when the defendant Daniels struck him from the right. Daniels testified that he turned to the right at the time of the collision and the evidence shows that the left front of Daniels’ car struck the right front of the Baker car. There is no evidence in the record that the defendant Baker looked in either direction after he left the stop sign. Under these circumstances, we think the case law is squarely against the appellant’s position that there was insufficient evidence to go to the jury. In McCormack v. Haan, 20 Ill.2d 75, 78, 169 N.E.2d 239, 240, where the facts are strikingly similar to the case at bar, the Supreme Court stated:

“Even if we assume that the plaintiff’s testimony conclusively establishes that McCann stopped his car at a place where he had a clear view of approaching traffic on the preferential highway, and that plaintiff looked to the right and McCann looked to the left, it does not follow that he was exonerated from responsibility for the accident. It was his duty to ascertain whether or not it was safe to enter the protected intersection, and if it was not reasonably safe to do so, he should have yielded the right of way to the oncoming vehicle. The jury could find that his failure to do so was wilful and wanton misconduct. Hering v. Hilton, 12 Ill.2d 559, 147 N.E.2d 311.”

The defendant lightly differentiates this case by stating that the Supreme Court was primarily concerned with the question of judicial admissions. This hardly seems a satisfactory answer to Haan. Hering v. Hilton involved a situation where the defendant looked, saw the approaching automobile, and concluded that he had time to cross the intersection. This, the defendant said, was an error of judgment and cannot be described as wilful and wanton misconduct. The Supreme Court held otherwise and held that labeling the conduct an error of judgment did not free it from the taint of wilful and wanton misconduct. In Ritter v. Neiman, 329 Ill.App. 163, 67 N.E.2d 417, the court stated:

“What is the purpose of a stop sign? Certainly, it does not signify that a motorist should stop, and then blindly proceed through a protected intersection without determining that he can do so with reasonable safety. The operator of a motor vehicle, when he stops at a preferred highway, should ascertain if he can proceed safely across such highway. If he can not, he should not enter it. Merely stopping some place near a stop sign does not necessarily discharge one’s duty.” In Ritter, the defendant claimed that he looked but did not see the

approaching vehicle and therefore could not be guilty pf wilful and wanton misconduct. In Hering, the Supreme Court cited with approval the Ritter case and indicated that where one looks and does not see a vehicle that is patently present and visible he is guilty of wilful and wanton misconduct. So, it is here. In Gaiennie v. Fringer, 5 Ill.App.2d 403, 126 N.E.2d 38, it appeared that the defendant Fringer stopped at a stop sign about 30 feet back from the travel portion of the highway. The court commented in that case that neither evidence nor argument explained the failure to look to the right or the left during the 30 feet or more she traveled after leaving the stop sign and before reaching the south edge of the paved portion. At that point, the passenger called her attention to the presence of the oncoming car and her contention was that there was a sudden emergency and that she was thus not responsible. The court did not accept this explanation, but stated that the creation of the emergency in that case was the fault of the defendant.

In this case, the defendant had a clear vision for 500 feet and he himself testified that he did not again look to the south as he approached the travel portion of the highway and then saw the defendant Daniels’ car out of the comer of his eye about 100 feet away. He did nothing and stated that he thought the Daniels car was coming at a rate of 90 to 100 mph. Other testimony suggests 60 to 65. To hold that a verdict should have been directed here would permit one to be exonerated from wilful and wanton misconduct when he stops at a stop sign 25 feet back from the travel portion of the preferred highway. The driver knows he is approaching a protected highway. He knows traffic from the right has the right of way. He knows that the danger, if any, is at the pavement, not at the stop sign. Failure to utilize and act on that knowledge may be properly denominated by a jury as a conscious disregard for the safety of himself, his property and his passengers.

Judgment affirmed.

CRAVEN and TRAPP, JJ„ concur.