author: MR. PRESIDING JUSTICE DAVIS

text:
    Clifton L. Swenson, Plaintiff-Appellee, v. Ila D. Wintercorn, Individually, Ila D. Wintercorn, as Executor of a Certain Instrument Purporting To Be the Last Will and Testament of Mabel M. Banta, Deceased, and Ila D. Wintercorn, Trustee of a Certain Purported Trust, Designated as Banta Trust No. 101, Dated September 15, 1959, Defendants-Appellants, and Kenneth Revell, et al., Defendants.
    Gen. No. 67-100.
    Second District.
    February 9, 1968.

      Maynard, Maynard and Brassfield, of Rockford, for appellants.
    Guyer and Enichen, of Rockford, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This action was brought to contest the validity of the last will and of a trust agreement, both executed by Mabel M. Banta (hereinafter referred to as Mrs. Banta) on September 15, 1959. In answer to special interrogatories, the jury found that on that date, Mrs. Banta possessed sufficient mental capacity to execute the instruments in question. However, it also found that the execution of these instruments was procured through undue influence. The defendant, Ila D. Wintercorn (hereinafter referred to as Ila Green), appealed from the judgment based upon the last mentioned special finding, which judgment declared the instruments null and void.

The evidence was conflicting, and it would unduly lengthen this opinion to set forth in detail the testimony elicited from the various witnesses. We will sufficiently summarize it for an understanding of the factual matters presented to the jury and court below.

The plaintiff, Clifton L. Swenson, and the defendant, Ila Green, are a nephew and niece of the decedent, Mrs. Banta, who died in July of 1964 at the age of 78. She originally lived in Rockford, then moved to Chicago, where she married and lived the major portion of her life with her husband, Frank Banta. No children were born of the marriage. Frank Banta died in 1956. There is some conflict in the evidence relative to the impact of Mr. Banta’s death on Mrs. Banta’s mental processes subsequent to his death.

Two of her closest friends, Mrs. Lamey and Mrs. Johnson, testified that in the several years subsequent to her husband’s death there was no change in her mannerisms or mental capabilities. Mrs. Nims of Rockford, who had visited Mrs. Banta in Chicago at least once during this period of time, testified that Mrs. Banta appeared to suffer only the normal grief to be expected, but that there was some question as to whether she was then as well-groomed as she had been prior to her husband’s death.

Jean Westberg, a sister-in-law of Mrs. Banta, who lived in Rockford, testified that she had visited Mrs. Banta in Chicago, on several occasions, between the date of Mr. Banta’s death in 1956 and the fall of 1959, when Mrs. Banta moved to Rockford, and that Mrs. Banta’s conduct was different in the following respects after her husband’s death: that Mrs. Banta was forgetful, would keep repeating herself, and would ask the same questions over time and again; that she would make a trip to the bank and shortly thereafter forget the fact that such trip had been made; that prior to his death, she was neat and tidy, but thereafter she was unkempt, her apartment was dirty and in disorder.

In February of 1957 — the period of time in question— William Lamey (the son of one of Mrs. Banta’s good friends, and a Chicago attorney) prepared a will for Mrs. Banta, which she duly executed. It was his testimony that she was completely competent at that time.

Mr. George Doelle testified on behalf of the plaintiff. He stated that he had known Mrs. Banta since about 1934; that he was her financial advisor; that he sold her annuities, and bought and sold securities for her; that he saw her perhaps twice each year, and noticed no change in her until the year 1959. Upon his return from Florida in April of 1959, he learned that Mrs. Banta had called him by telephone a number of times. When he talked with her, she stated that she could not find her annuity checks. Mrs. Banta was then receiving four or five such checks each month. Mr. Doelle was certain that the checks had come in and convinced her to wait for a week or so before trying to get duplicate checks. About a week later, Mrs. Banta called saying that she had found the checks. He testified that thereafter the same thing happened every month. She would call stating that she had not received her checks and that she thought the company must be going broke. Mr. Doelle would assure her that this was not true and Mrs. Banta would then state that the mailman must be stealing the checks.

On one occasion Mr. Doelle had the insurance company issue duplicate checks. Later the original checks turned up — endorsed by Mrs. Banta. When confronted with these, she said she couldn’t believe it. He further testified that Mrs. Banta would call at 9:00 a. m., then would call again, perhaps an hour later, forgetting that she had made the prior call; that sometimes this would happen three or four times a day — Mrs. Banta forgetting each of the earlier telephone calls; and that all of this started in April of 1959, and got progressively worse.

He was then concerned about Mrs. Banta’s condition and called several of her friends in Chicago. In August of 1959, he called the defendant, Ila Green, in Rockford, and told her about Mrs. Banta’s condition and informed her that the company would have to send the checks to a bank or to someone who could keep track of them and see that they were properly endorsed. He and Ila Green also discussed the possibility of Mrs. Banta moving to Rockford. He also listed the annuity numbers with her and apparently arranged to have the checks sent to her address.

Late in August of 1959, Ila Green and her husband helped Mrs. Banta close her apartment in Chicago and move, temporarily, to the Green home in Rockford, and it was during the time she was living in the Green home that the transactions in question took place. On August 29, Mrs. Banta rented a safe-deposit box in the name of herself and Ila Green; on August 31, 1959, a checking account was opened in the name of Mrs. Banta and Ha Green, jointly, with an initial deposit of $1,500 which was taken from Mrs. Banta’s personal account in Chicago; and on September 4,1959, a similar joint savings account was opened with an initial deposit of $3,000.

The employee of the Rockford bank who opened these accounts had known Mrs. Banta for a number of years. Her testimony, relative to the conversations at the time the accounts were opened, indicated that she felt that Mrs. Banta was fully aware of the nature of her transactions and fully competent.

Ila Green and her husband were both clients of attorney Frank Welsh of Rockford. Mr. Welsh testified that shortly before September 9, he received a telephone call— which to the best of his memory was from Mr. Green— stating that Mrs. Banta was coming to Rockford and should have someone locally look after her affairs. As a result of this telephone call, or a subsequent telephone call from Mrs. Banta, Mr. Welsh and his secretary went to the home of the Greens on September 9. They were met at the door by Ila Green, who introduced them to Mrs. Banta. Ila Green then removed herself to some other part of the house, and Mr. Welsh, his secretary, Mr. Green and Mrs. Banta retired to the living room where they discussed Mrs. Banta’s estate problems and proposed plans.

This discussion lasted about an hour or an hour and a half. Mr. Green, apparently, did not say much at this meeting. Mr. Welsh remembered that Mr. Green had talked to Mrs. Banta about her will or estate and urged her “she should get at it,” but he could not recall whether such remark was made at this meeting or on some other occasion.

Mr. Welsh testified that at the meeting at the Green home, Mrs. Banta made known that it was her wish that $2,500 of her estate should go to a certain nephew (the plaintiff), $2,500 to a niece, and the balance to Ila Green —because the Greens had been good to her and had helped her over the years. She then presented to Mr. Welsh certain annuity policies and her 1957 will. Mr. Welsh recommended that Mrs. Banta execute a revocable trust containing the provisions which she allegedly specified and a will pouring over any residuary estate into this trust.

Shortly prior to this, on September 4, Ila Green had taken Mrs. Banta to a doctor for a physical examination. The doctor testified that his examination disclosed no essential physical defects. But, he also testified that on September 8 — the day before Attorney Welsh and his secretary met with Mrs. Banta and Mr. Green at the Green home — he had a telephone conversation with Ila Green, who stated that she though her aunt’s mind was deteriorating rather rapidly to the point where she could not seem to remember much of anything; that for months Mrs. Banta had not been able to conduct her own business ; that her check writing was mixed up; and that she seemed preoccupied or simply unable to conduct her own affairs.

On September 11, Mr. Green brought Mrs. Banta to Mr. Welsh’s office and from there they went to the safety-deposit box, where an inventory was made of its items.

On September 15, the Greens brought Mrs. Banta to Mr. Welsh’s office where the trust agreement, will and other documents were executed. This meeting lasted about an hour and a half — the Greens being present the entire time.

In the trust agreement, Mrs. Banta designated herself and Ila Green as trustees, retained the right to revoke or modify the agreement in any manner, and provided that upon her death the balance remaining, after payment of certain taxes, debts and obligations, should be distributed in the following manner: $2,500 to Lucille Peterson, a niece, if she should survive Mrs. Banta, and if not, said sum should go to her children; $2,500 to Clifton Swenson, a nephew, if he should survive Mrs. Banta, and if not, this sum should then be added to the share provided for Ila Green; and the balance to Ha Green. Mr. Green was named as successor trustee should either of the trustees be unable to act. The assets of the trust had an approximate value as of that date of $80,000. On the date of her death, for inheritance tax purposes, Mrs. Santa’s estate was valued at $98,000.

The will poured all the residue of Mrs. Banta’s estate over into the trust. Ila Green was nominated as executor and Mr. Green as successor executor.

In her 1957 will, Mrs. Banta had provided that Ila Green was to receive one-half and Lucille Peterson and Clifton Swenson each were to receive one-fourth of the estate, and that if any of the designated beneficiaries should predecease her, such person’s share would pass to his or her children then surviving. Lastly, it provided that if the respective designated beneficiaries did not survive and had no children surviving, then such share would go to the other named surviving beneficiaries equally, except in the case of Clifton Swenson. In his case, if he predeceased Mrs. Banta and left no children surviving, his share would go to his wife it she survived Mrs. Banta. Ila Green had also been appointed as executor under this will and Mr. Lamey as successor executor.

Subsequently, on October 1, 1959, Mrs. Banta was moved from the Green home to a certain apartment in Rockford, where she lived for about a year. There was a great deal of testimony relative to her mental condition during this period of time from both the witnesses heretofore mentioned and additional witnesses. This testimony, like that relative to her mental capacity prior to the time she moved to Rockford, was conflicting. Certain witnesses stated that Mrs. Banta was extremely forgetful, uncertain, untidy and lacking in mental capacity, while others said that she was perfectly lucid and competent during this period of time.

Mrs. Banta moved from the apartment to a nursing home where she stayed for a short period of time. From there, she went to live with another relative, Florence Westberg, where she lived for three years. She left there to go to the state institution at Moline where she remained for a few months, and was then moved to another nursing home in Rockford where she stayed until her death in 1964.

The defendant contends that the trial court erred in refusing defendant’s motions for a directed verdict on the issue of undue influence; that the trial court should have granted her motion for judgment notwithstanding the verdict on the issue of undue influence; that the special verdict regarding undue influence was contrary to the manifest weight of the evidence; that the court erred in instructing the jury; and that counsel for the plaintiff was guilty of improper remarks in his closing argument.

The plaintiff did not cross appeal from the special finding of the jury that Mrs. Banta was of sound mind and memory at the time of the execution of the documents in question, and that determination is not before this court. People ex rel. Southfield Co. v. Jarecki, 408 Ill 266, 271-276, incl, 96 NE2d 569 (1951); Robbins v. Campbell, 65 Ill App2d 478, 485, 486, 213 NE2d 641 (1965); Bawden v. Furlong, 16 Ill App2d 174, 185, 147 NE2d 889 (1958).

While this is a special statutory proceeding, the defendant’s motions for a directed verdict and for judgment notwithstanding the verdict are governed by the same rules which apply in actions at law. Peters v. Catt, 15 Ill2d 255, 259, 154 NE2d 280 (1958); Mitchell v. Van Scoyk, 1 Ill2d 160, 167, 115 NE2d 226 (1953). Whether the trial court was correct in refusing to grant the directed verdict for defendant or defendant’s motion for judgment notwithstanding the verdict depends on whether all of the evidence when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favors the defendant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & E. R. Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967).

The undue influence which will invalidate a will and instrument such as are before this court must be directly connected with the procurement and execution of these instruments and must be operative at the time they are made. Peters v. Catt, supra, 263; Ginsberg v. Ginsberg, 361 Ill 499, 510, 198 NE 432 (1935). The influence must be specifically directed towards procuring the will in favor of a particular party or parties and must be such as to destroy the testator’s will and render the instruments more the will of another or others than that of the person executing the documents. Redmond v. Steele, 5 Ill2d 602, 609, 610, 126 NE2d 619 (1955); Lake v. Seiffert, 410 Ill 444, 448, 102 NE2d 294 (1951).

Under certain circumstances, a presumption will arise that the instrument is the result of undue influence. One such circumstance is: where a fiduciary relationship exists between the testator and a devisee or legatee who receives a substantial benefit from the will; where the testator is the dependent and the devisee or legatee the dominant party; where the testator reposes trust and confidence in the devisee, or legatee, and where the will is prepared by or its preparation procured by such devisee or legatee. Proof of these facts will establish a prima facie case that the execution of the will was the result of undue influence. Redmond v. Steele, supra, 610; Tidholm v. Tidholm, 391 Ill 19, 25, 54 NE2d 745 (1945); Malone v. Malone, 26 Ill App2d 291, 303, 304, 167 NE2d 703 (1960).

As to the fiduciary relationship, such a relationship exists where there is a special confidence reposed in one, who by reason of such confidence, must act in good conscience and good faith and with due regard to the interests of the person reposing such confidence. It may exist as a matter of law between attorney-client, guardian-ward, trustee-beneficiary, and the like, or it may be the result of a more informal relationship — moral, social, domestic or even personal in its origin. Kolze v. Fordtran, 412 Ill 461, 468, 107 NE2d 686 (1952); Wiik v. Hagen, 410 Ill 158, 163, 101 NE2d 585 (1951). Where the relationship does not exist as a matter of law, the proof must be clear, convincing, and so strong, unequivocal, and unmistakable as to lead to but one conclusion. Kolze v. Fordtran, supra; Scherman v. Scherman, 395 Ill 574, 578, 71 NE2d 16 (1947).

It must be specifically noted that even though a fiduciary relationship may exist, the dominant party also must have been instrumental in procuring the execution of the will, or participated in its preparation and execution for the presumption of undue influence to arise. The presumption of undue influence arises from participating in procuring the execution of the will and not from the mere fact of the fiduciary relationship. Anthony v. Anthony, 20 Ill2d 584, 587, 170 NE2d 603 (1960); Greathouse v. Vosburgh, 19 Ill2d 555, 573, 169 NE2d 97 (1960).

It seems fairly obvious to this court that at the time in question Mrs. Banta reposed special confidence in Ila Green and her husband. To a certain extent this is admitted by the defendant in her answer wherein she states, “She admits that the decedent, Mabel M. Banta, did to a limited extent confide in and depend upon Ha D. Winter-corn to assist her in transacting her affairs.”

Ha Green and her husband had moved Mrs. Banta from her Chicago apartment to their residence in Rockford in order to assist her. Mrs. Banta immediately placed all of her accounts — as well as her safety deposit box — in her name and Ila Green’s name, jointly. There was sufficient evidence to permit the conclusion that Mrs. Banta was, at this time, somewhat disoriented. Ha Green arranged an appointment with Dr. Hamlin for a physical examination for Mrs. Banta. The confidence in Ila Green was not a sudden or recent thing. In her earlier will of 1957, Mrs. Banta made Ila Green a devisee and legatee and named her as executor.

It is also apparent that Mrs. Banta relied upon Ila Green and her husband to see that her estate matters were taken care of. We do not know who was the moving force, but we think this is unimportant. The Greens were instrumental in procuring the services of their own attorney. It appears that Mr. Green urged Mrs. Banta to see that the matters of her estate were taken care of, and he was with her during all of the discussions regarding her will and estate; and both Ila Green and her husband were present during the time the trust instruments and the will, as finally prepared, were explained and executed by Mrs. Banta.

There is adequate evidence to establish the existence of a fiduciary relationship, the dependent and the dominant roles, and the procurement of the preparation and execution of these instruments. The instruments disclosed that Ila Green was to receive a substantial benefit from their execution. These factors are sufficient to establish a prima facie case of undue influence.

Even absent the existence of a fiduciary relationship, the factors in this case are sufficient to create a presumption of undue influence. One who procures the execution of a will largely benefiting him, in the absence of others having an equal claim on the bounty of a testator who is enfeebled by age and disease, is faced with the presumption that he exercised undue influence. Mitchell v. Van Scoyk, supra, 172; Sulzberger v. Sulzberger, 372 Ill 240, 245, 246, 23 NE2d 46 (1939). The strength of this presumption depends upon the condition of the testator’s mind when the will was made. Mitchell v. Van Scoyk, supra. It is for this reason that we have herein referred to the testimony regarding Mrs. Banta’s mental condition. No objection has been raised to the finding of the jury on the issue of mental capacity. The evidence, however, remains relevant as to the issue of undue influence. The feebler the mind of the testator, the less evidence will be required to establish the existence of undue influence. Mitchell v. Van Scoyk, supra; Lake v. Seiffert, supra, 449; Gum v. Reep, 275 Ill 503, 513, 114 NE 271 (1916).

Whether the undue influence may have been practiced by Ila Green alone, or by her husband for the benefit of Ila Green, or by both of them for the benefit of Ha Green, is immaterial. Undue influence may be the result of activities of third persons as well as a result of activities of the direct beneficiaries. Blackhurst v. James, 304 Ill 586, 604, 136 NE 754 (1922); Cheney v. Goldy, 225 Ill 394, 400, 80 NE 289 (1907). The determining factor is whether the influence is directed towards procuring the will in favor of a particular party or parties, and whether the influence was sufficiently great that the resulting instrument was more the will of the procurer than of the person executing the instrument. Insofar as Mr. Green may have been instrumental in influencing Mrs. Banta to favor his wife, his activity may be imputed to his wife. In re Trefren’s Estate, 86 Cal App2d 139, 194 P2d 574, 579.

Under the test outlined in Pedrick, supra, we are of the opinion that it would have been error for the trial court to direct a verdict for the defendant on the issue of undue influence or to render a judgment for the defendant on this issue notwithstanding the verdict. Under the law applicable to this case and viewing the evidence in its aspect most favorable to plaintiff, we cannot say that a verdict based upon this evidence so overwhelmingly favors the defendant that a contrary verdict cannot stand.

Nor, are we able to say that the verdict was palpably contrary to the weight of the evidence. The jury would have been warranted in finding, from the testimony of Mr. Doelle and others, that at the time in question, Mrs. Banta was a confused person even if she possessed sufficient capacity to execute the instruments in question. It appears from the telephone conversation between Ha Green and the doctor on September 8, that Ha Green shared the same concern. She and her husband were sufficiently concerned to remove Mrs. Banta from her Chicago apartment to their home to spend approximately a month with them.

The manner in which her financial affairs were immediately set up upon her arrival in Rockford would indicate that Mrs. Banta relied upon Ila Green for assistance and direction and that she also reposed confidence in her. The jury could well have concluded that Ha Green and her husband actively, and with dispatch, procured the execution of the documents necessary to place Mrs. Ban-ta’s estate in order. The resulting documents clearly benefited Ila Green and substantially increased her share in Mrs. Banta’s estate over the share she would have received under the will executed by Mrs. Banta in 1957.

We have reviewed the entire record and find that the jury, dependent upon the credibility which it accorded to the testimony of the witnesses of the parties, might well have decided the case either way. However, both the jury, and the judge who ruled on the post-trial motion, heard the evidence, saw the witnesses and had an oeeasion to take into account their ability and opportunity to observe the facts testified to, their memory, manner while testifying, any interest, bias or prejudice which they may have had, and the reasonableness of their testimony when considered in the light of all the evidence in the case. This is not a case in which an opposite conclusion to that of the jury is clearly evident, as is required before we can disturb the verdict. Lilegdon v. Hanuska, 85 Ill App2d 262, 271, 229 NE2d 314 (1967). There is ample evidence to sustain the verdict of the jury and it would be improper for us to reverse the judgment on this ground.

The defendant also contends that the trial court erred in refusing to give the following instruction:

“The Court instructs the jury that any degree of influence over another acquired by kindness and attention, can never constitute undue influence within the meaning of the law, and although the jury may believe from the evidence that the decedent, Mabel M. Santa, in making her Will and Trust was influenced by the defendant, lia D. Wintercorn, still if the jury further believe from the evidence that the influence which was so exerted was only such as was gained over the deceased by kindness and friendly attention to her, then such influence cannot be regarded in law as undue influence.”

The defendant is correct in her contention that influence resulting from affection, kindness and friendliness does not constitute undue influence. Lake v. Seiffert, supra, 450; Waters v. Waters, 222 Ill 26, 36, 78 NE 1 (1906). The evil in the tendered instruction is that it advised the jury that “any degree of influence over another acquired by kindness and attention, can never constitute undue influence within the meaning of the law,” and that even if the jury believed that the defendant influenced Mrs. Banta in making her will, if it further believed that such influence was gained only by kindness and friendly attention, “then such influence cannot be regarded in law as undue influence.”

The normal influence gained or acquired by affection or kindness is not undue influence under the law. If, however, the degree of influence so-acquired is such as to deprive the testator of her own free will and agency, then it does become undue influence. In the absence of fraud or similar conduct, whether the influence is wrongful or undue depends not on the manner of influence, but on the degree of influence. Thus, even though influence is not acquired in any untoward manner, if it deprives the testator of his free agency, it is wrongful and undue. Blackhurst v. James, supra, 604; Dowie v. Sutton, 227 Ill 183, 197, 198, 81 NE 395 (1907); Burt v. Quisenberry, 132 Ill 385, 399, 24 NE 622 (1890).

It would have been error to give the instruction as tendered because it did not contain any qualification providing that if the result of the kindness was to substitute the will of another for that of the testator, it would then be undue influence. In Waters, the court held that it was error to refuse to give an instruction such as was tendered here. But, the case was reversed on a number of grounds, and the statement of the court that the refusal to give the instruction constituted error, must be viewed in light of the other findings. The court also found that the determination of the jury of lack of capacity and of undue influence was contrary to the manifest weight of the evidence. Burt v. Quisenberry, supra, was cited by the court as authority for holding that the refusal to give the instruction constituted error and the court quoted these words from Burt at page 399: “Undue influence means wrongful influence. But influence secured through affection is not wrongful, and therefore, although a deed be made to a child at his solicitation, and because of partiality induced by affection for him, it will not be undue influence. . . . The influence, to render the conveyance inoperative, must be of such a nature as to deprive the grantor of his free agency.” (Emphasis ours.)

In Waters, the court was aware that influence sufficient to destroy a free agency is wrongful or undue influence. Its criticism of the instruction undoubtedly was based upon the fact that it found that there was no evidence of undue influence on the part of those so charged, but that such persons exercised only normal influence which resulted from kindness and attention to the recipient.

The defendant also objects in this court to the giving of one of plaintiff’s instructions. While the plaintiff points out that the defendant did not object to this instruction at the conference on instructions, the instruction is proper. There is evidence to support the instruction and it conforms to the legal principles we have heretofore set forth.

The defendant also complains of a certain remark made by counsel for the plaintiff in the closing argument. The closing argument, however, was not included in the record and, thus, there is nothing before us to consider with reference to this contention. Department of Public Works and Buildings v. Bloomer, 28 Ill2d 267, 275, 191 NE2d 245 (1968).

In view of our conclusions, the judgment of the trial court is affirmed.

Judgment affirmed.

MORAN and ABRAHAMSON, JJ., concur.


source: Caselaw Access Project

author: MORAN, J.

license: Public Domain

text:
    L & R Insurance Agency, Inc., a Corporation, and Golden Rule Insurance Co., a Corporation, Plaintiffs-Appellees, v. Philip K. McPhail, et al., Defendants-Appelants.
    Gen. No. 66-125.
    Fifth District.
    February 14, 1968.
    Rehearing denied April 9, 1968.

      William D. Stiehl, and Dixon and McDonnell, of Belle-ville, for appellants.
    Arthur J. Hessburg, of Lawrenceville, and John T. Roach, of Alton, for appellees.
   MORAN, J.

Defendants appeal from a judgment of the Circuit Court of St. Clair County awarding the plaintiffs damages totaling $36,188.34, and enjoining them from violating a restrictive agreement for a period of three years from the dates of the termination of their respective employments.

Defendants are former employees of the plaintiff L & R Insurance Agency. McPhail worked as a salesman from October, 1958, to January, 1960. He returned to the plaintiff company in September, 1961, and remained until October, 1964. During the final year McPhail was the sales manager. Hines also had previous employment with the plaintiff, the latest period being from March, 1960, to October, 1961. On September 9, 1961, the defendants entered into separate but identical written agreements with L & R Insurance Agency. These agreements granted them the area of Madison and St. Clair Counties as their sales territory and further provided:

“. . . The Second Party (defendants) agrees that if the contract between the First Party (L & R Insurance Agency) and the Second Party is terminated, that the Second Party will not solicit or sell life or accident and health insurance ... in the State of Illinois to anyone who holds a policy in the Golden Rule Life Insurance Company or in any other company represented on an agency basis by the First Party, or to anyone who has held such a policy within three, months prior to such solicitation or sale.”

The employment of Hines was terminated on October 1, 1961, approximately three weeks after the agreement was executed. In 1964 he became an agent for Central National Life Insurance Company. McPhail’s employment with plaintiff agency terminated in October, 1964. In December, 1964, he was licensed as an agent and manager for Central. The six agents under his supervision, including Hines, were all former agents of the plaintiff, L & R.

This action was brought on December 22, 1964, to obtain injunctive relief and monetary damage from the defendants for alleged violation of these agreements. It was alleged that the defendants solicited and sold Central coverage to accounts which had been insured by the plaintiffs. Nine accounts were in question — all within the State of Illinois, five within the St. Clair and Madison County area. The amended complaint stated in part:

“11. That, commencing on or about the first week in December, 1964, and prior and subsequent thereto, and even up to the present time, defendants have illegally, maliciously and wrongfully conspired together and with other persons with the intent and for the purpose of violating their respective covenants with plaintiff agency, and with the intent and purpose of injuring the business of both plaintiffs, and with the intent and purpose of soliciting and selling Central National Life Insurance Company insurance coverage to large numbers of plaintiffs’ policyholders and customers respectively.”

The court ordered issuance of a temporary injunction without notice and without bond prohibiting the defendants from soliciting or selling insurance to Golden Rule policyholders and from engaging in acts or practices of conspiring together with the intent of causing plaintiffs to lose any further business with Golden Rule policyholders pending final determination. On January 20, 1965, the court ordered the temporary injunction dissolved. The defendants then filed a Motion to Dismiss the Complaint and a Motion in Suggestion of Damages. On May 5, 1965, the court denied the Motion to Dismiss, and the Motion in Suggestion of Damages was taken under advisement pending further determination of the case. At the close of this evidence on September 30, 1965, the court again placed both defendants under injunction, pending disposition of the case.

On the 5th day of January, 1966, the trial court entered its final order and found that the covenants were valid and enforceable after imposing a three-year limitation commencing from the date of termination of employment of each defendant. Thus the covenant, as applied to Hines, would only be in effect until October, 1964, which was prior to the alleged violations. McPhail’s covenant would be in effect until October, 1967. The trial court also found that the defendants knowingly and wilfully conspired, with the intent to damage the plaintiffs, to violate and did violate the covenant existing between Mc-Phail and the plaintiffs. Defendants’ Motion in Suggestion of Damages was denied. Golden Rule was awarded $28,118.59 from the defendants jointly and severally and from McPhail, individually, the sum of $2,539.15; L & R was awarded $4,983.60 from the defendants jointly and severally and $547 from. McPhail individually.

The defendants contend that since the restrictive covenant was unlimited as to time and prevailing throughout the State of Illinois, it was contrary to the public policy of this state and thus void and unenforceable.

In Beltone Electronics Corp. v. Smith, 44 Ill App2d 112, 194 NE2d 21, the court, quoting from the Restatement of Contracts, stated that restrictive covenants in an em~ ployment contract are reasonable if (1) the restraint is no greater than that required for the protection of the employer, (2) it does not impose undue hardship on the employee, and (3) is not injurious to the public. In that case the defendant had been in an administrative position with the plaintiff company. The contract prohibited him from being employed by anyone in the manufacture or sale of hearing aids for a period of one year. The court held that due to defendant’s nontechnical position and the exclusiveness of the contract, the restriction went farther than necessary to protect the plaintiff. In Solar Textiles v. Fortina, 46 Ill App2d 436, 196 NE2d 719, the employment contract specified that the employee could not engage in any similar or competitive business in the cities of Chicago or New York, or within a 350-mile radius of either city. The court held that when the contract is drawn in such a way as to restrict competition per se, the contract, is void and unenforceable.

In Smithereen Co. v. Renfroe, 325 Ill App 229, 59 NE2d 545, the defendant who was a manager of the plaintiff’s exterminating business, was prohibited from competing in the same business within the City of Chicago for a period of five years. The court held that such contracts are valid and enforceable when they are for a limited time, within a limited area and such limitations are reasonably necessary for the protection of the employer’s business.

The contract in the present case had no time limitation and the area was the State of Illinois. In reference to defendant Hines there is no evidence to show that he worked outside of the St. Clair and Madison County area during the period covered by the contract. Although the finding of the trial court had no bearing on the result, it erred in finding the covenant relating to Hines was valid and enforceable. It was unreasonable as to time and area. In addition, his employment terminated within three weeks after entering the contract. The restrictive covenant was not reasonably necessary to protect the plaintiffs’ interests.

Since it was shown that McPhail had set up groups in Jacksonville, Springfield, Danville and Kankakee after entering the contract, plaintiffs contend that the statewide restriction was necessary to protect their interests.

In House of Vision, Inc. v. Hiyane, 37 Ill2d 32, 225 NE2d 21, the lower court imposed a five-year limitation on a covenant which did not specify a time limit. In reversing the decision, the Supreme Court stated that while it was not holding that a court of equity could not modify the restraints in a contract of employment, the fairness of the restraint initially imposed is a relevant consideration to a court of equity. In the present case the restriction was unreasonable as to time and area. In addition, the contract specified that the defendants would not sell to anyone represented on an agency basis by L & R. Thus, after the defendants’ termination of employment, the L & R Agency could begin representing some other insurance company and the defendants, by the terms of the contract, would be restricted from soliciting that new company’s policyholders. Then, too, under the terms of this covenant, before the defendants could solicit insurance sales anywhere in the State of Illinois they would have to inquire as to whether the prospect had, within three months last past, been insured by any company represented by the L & R Agency, even if the solicitation took place two years after termination of their employment with the L & R Agency. This would impose an undue hardship on the employees. The restraint appears to be a device to protect the plaintiffs against competition rather than a reasonable protection of their interests. In House of Vision, supra, the court stated:

“In the present case the restrictions clearly extend far beyond those necessary to the protection of any legitimate interest of the plaintiff. ... To stake out unrealistic boundaries in time and space, as the employer did in this case, is to impose upon an employee the risk of proceeding at his peril, or the burden of expensive litigation to ascertain the scope of his obligation.” Id. at 24-25.

This restriction was not necessary to protect any interest of L & E Insurance Agency for another reason. The signatories to these contracts were L & E Insurance Company and defendants. In order to enforce the contracts, L & E would have to show that the enforcement was necessary to protect the legitimate business interest of L & E. How the legitimate business interest of L & E would be protected or furthered by permitting the enforcement of this contract by Golden Eule Life Insurance Company is difficult to see. In addition, to permit enforcement of a contract that is in restraint of trade by one who is not a party to the contract would be fraught with danger and could lead to restraints of trade far beyond those which are now tolerated by law.

Since the restriction was void and unenforceable, the trial court could not cure the restriction by imposing a limitation on it. Therefore, the defendants could not be guilty of conspiring to violate the covenant which was void and unenforceable.

The defendants’ final contention is that the court erred in denying the motion in suggestion of damages. Illinois Eevised Statutes chapter 69, section 13, specifies that when an injunction is dissolved and a party claims damages by reason of the injunction, the court shall hear evidence and assess such damages as the nature of the case may require.

The temporary injunction was issued December 22, 1964, without bond. On January 22, 1965, the court, after hearing oral argument, ordered the dissolution of the temporary injunction. The defendants then filed their motion in suggestion of damages — $600 for legal services incurred in obtaining dissolution and $14,000 in lost commissions. At the trial the defendants introduced evidence to show $600 legal fees and $145 traveling expenses for Hines. It is these two amounts that they are seeking in this appeal.

The lower court found that in view of the entire testimony and evidence that the temporary injunction was legally and validly issued and the motion in suggestion of damages should be denied.

Illinois Revised Statutes chapter 69, section 13, is intended to provide relief against the wrongful issuance of a temporary injunction and to provide a mode of assessing damages for the wrongful issuance of a temporary injunction which is dissolved before final judgment. Schien v. City of Virden, 5 Ill2d 494, 126 NE2d 201. The Supreme Court said in this case that a temporary injunction may be wrongfully issued even though the plaintiff prevails in his action for a permanent injunction.

“To understandingly interpret and apply this statute it must be kept in mind that in a suit for a permanent injunction, if a temporary injunction issued prior to the determination on the merits, separate and distinct issues are involved. The issues as to issuance of the temporary injunction are not dependent upon the determination on the merits. Damages claimed under this statute are therefore based on the wrongful issuance of a temporary injunction, and cannot be assessed until there has been a legal determination that the temporary injunction was wrongfully issued. This is attained by the dissolution of the temporary injunction before the determination on the merits.” Id. at 503.

Applying these principles to the instant case, we conclude that the trial court erred in denying the motion. The defendants are entitled to damages incurred in obtaining the dissolution.

The judgment of the Circuit Court of St. Clair County is reversed and this cause is remanded to that court with directions to enter a judgment in favor of McPhail for $300 and in favor of Hines for $445 for expenses incurred in obtaining dissolution of the temporary, injunction.

Reversed and remanded with directions.

GOLDENHERSH and EBERSPACHER, JJ., concur.


author: MR. JUSTICE ENGLISH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leighton McMillian, et al., Defendants-Appellants.
    Gen. Nos. 51,211, 51,212. (Consolidated.)
    First District, Fourth Division.
    February 14, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn, and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Crime Charged

Burglary.

Judgment

After a bench trial, the court found both defendants guilty and sentenced them to terms of three to eight years.

Contention on Appeal

The evidence was insufficient to establish defendants’ guilt.

Evidence

For the State

Chris Fosco

He owned a tavern at 2227 W. Taylor Street, Chicago. He locked the doors of the tavern when he closed up at 2:00 a. m. on December 14, 1965. On call from the police, he returned to the tavern at 4:00 a. m. and found the door lock broken, the door having been pried open with a knife or screwdriver. A cigarette machine and bowling machine had also been broken open and money removed. (There was no testimony as to how much money had been in these machines.) About $23 in silver coins — his “bank” for the following day — had been taken from the cash drawer.

Mrs. Molly Messino

On the way to her job at 2253 W. Taylor Street, she and her daughter noticed two colored men standing in front of Chris’ Tavern as they drove by at about 2:45 a. m. They therefore drove around the block and when they came back, Mrs. Messino saw that the two men were no longer there and the tavern door was ajar. She immediately returned home and called the police.

Michael Vincent O’Donnell

He was one of the two police officers who responded to Mrs. Messino’s call. They arrived at the tavern at about 2:50 a. m., and looking through the window, they saw that there was a light on behind the bar and two negroes were standing there. After noticing that the front door had been forced, the officers entered the tavern and saw the two defendants duck down and crouch behind the bar. Upon an order to stand up with their hands up, McMillian stood up but Montgomery did not. Whereupon, the other policeman fired a shot high over the bar and Montgomery came up from his crouched position. On the floor between the defendants, the policemen found a paper bag containing $23.60 in coins. Upon searching defendants, a screwdriver was taken from McMillian and a switchblade knife was found in Montgomery’s pocket. All that defendants said to the policemen at the tavern was “Give us a break.”

Anthony Gaudio

He was a police officer who questioned defendants in the lockup at the police station. When he asked them if they had broken into the tavern, McMillian answered, “Yes, we did.” McMillian also said, in response to a further question, “We were just walking by and the place looked easy enough to make, so we decided to hit it.” Montgomery nodded his head in agreement with both these statements. Gaudio’s investigation at the tavern confirmed Fosco’s testimony that the tavern door, the cigarette machine, and an amusement machine had been broken open.

For the defense

William Montgomery, defendant

He and the codefendant had been to a party which they left about 1:30 a. m. While walking down Taylor Street, they decided to get a drink. Approaching the door of Chris’ Tavern which was open, they “saw two figures already in the tavern.” As the defendants entered, the “two figures went straight towards the back” from behind the bar and out the rear entrance. Defendants then looked behind the bar to see if anybody was hurt. In so doing, they noticed that the front of a machine had been removed. The police came in right behind defendants (“spontaneously to us coming in”), and when one of the policemen fired a shot, defendants ducked behind the bar. When they were searched by Officer O’Donnell, Montgomery voluntarily gave him a switchblade knife which had been in his pocket, and the policeman picked up the screwdriver from the floor. Montgomery had $5 and some change in his pocket at the time. He denied taking any money from the machines or the cash drawer, and did not notice a brown bag.

Leighton McMillicm, defendant

He corroborated the testimony of Montgomery throughout, and denied ever having seen the screwdriver before. He also denied that either he or his codefendant had made the inculpatory statements testified to by the police witnesses. He had some money in his pocket at the time.

Opinion

Seldom does the State have the opportunity, as it did in this case, of offering in evidence a testimonial description of police officers catching the defendants in the act of committing the crime of burglary. This makes it extremely difficult to defend in the trial court, and even more difficult to present grounds for reversal on appeal. Defendants argue here on the basis of two facts: (1) that Officer O’Donnell did not mention the firing of a shot while testifying in the State’s case in chief, but only in rebuttal after defendants had testified to it, and (2) that the $23.60 found in the paper bag leaves some money unaccounted for, and is thus consistent with defendants’ testimony that someone else was there ahead of them. These matters, say defendants, cast a reasonable doubt upon the State’s otherwise airtight case. We think they do not. When the evidence was all in, there was no difference between the description of the shooting as told by defendants and as told by the police officer. As to the money, there was no testimony as to how much, if any, there had been in the machines prior to the burglary, and both defendants had some money in their pockets when apprehended. While there may have been some confusion on the part of the tavern keeper as to the source of the coins in the paper bag, his testimony in this regard demonstrates only that fact, and does not serve to raise a reasonable doubt of defendants’ guilt when considered with all the other evidence which was overwhelming.

Furthermore, there is underlying defendants’ argument in this court the question of the credibility of the witnesses, which is, of course, a matter for the trial court.

Decision

The judgment of the Circuit Court is affirmed as to both defendants.

Affirmed.

MCCORMICK, P. J. and DRUCKER, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Tomares Carter, Defendant-Appellant.
    Gen. No. 52,171.
    First District, Fourth Division.
    February 14, 1968.
    George L. Plumb, of Chicago, for appellant.
    No attorney for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Crime Charged

Murder.

Judgment

On April 22, 1966, upon a plea of guilty, the trial court imposed a sentence of 14 to 20 years.

Proceedings on Appeal

On April 20, 1967, this court allowed defendant’s petition to file a late Notice of Appeal and gave him leave to proceed as a poor person. We also appointed counsel to represent defendant on appeal and extended the time for filing record, abstracts and briefs. The record was filed in due course, the trial court having previously directed that it be prepared without cost to defendant. There was no need for a report of proceedings in this case since verbatim reports of the proceedings at arraignment, at the entry of defendant’s guilty plea, and at the hearing on aggravation and mitigation were made parts of the common law record (pursuant to Rule 608 (a)).

On November 10,1967, the attorney appointed to represent defendant filed a petition for leave to withdraw from the case, on the ground that he was unable to find any legal points which were arguable on their merits. He also filed a brief in support of the petition in which he apparently sought to comply with the requirements of Anders v. California, 386 US 738.

This brief, which had obviously been prepared with professional skill and which demonstrated a conscientious examination of the record, set forth four points as the only ones occurring to defense counsel which he thought might arguably support the appeal. While the brief went into considerable detail as to each point, we shall mention them only in outline:

1. The trial court did not properly admonish defendant as to the significance and consequences of his act in entering a plea of guilty. The record, however, establishes beyond question that the court’s advice to defendant was more than adequate. Ill Rev Stats (1965), c 38, § 115-2 (a) (2); People v. Fitzgerald, 91 Ill App2d 191, 234 NE2d 79.
2. The court erred in not permitting defendant’s privately retained counsel to withdraw and in not appointing another attorney in his stead. The record shows, however, that both court and counsel gave defendant repeated opportunities to make request for such a substitution, but that he persistently declined to do so.
3. The court erred in not ordering a sanity hearing to determine defendant’s competency to stand trial. There are, however, no facts disclosed by the record which would raise any doubt as to defendant’s sanity, so the court was under no obligation to conduct such a hearing. People v. Cleggett, 22 Ill2d 471, 177 NE2d 187.
4. The record does not support a conviction for murder, but only for manslaughter, or some lesser charge. What the record does show is that defendant, in his own proper person and by his counsel, stipulated that the facts set forth in the indictment were “true and correct and sufficient to support the charge of murder.” Beyond that, the witnesses for the State were present in court and prepared to testify. The State’s Attorney recited to the court what each of these witnesses would say if called to testify, and this outline of facts showed defendant to have been guilty of murder beyond any doubt whatsoever. (After a quarrel with his “common-law wife,” he had placed a rifle to her ear and pulled the trigger, and this, under circumstances which completely ruled out either provocation or self-defense.) See People v. Johnson, 54 Ill App2d 27, 203 NE2d 283, as to the necessary elements of manslaughter.

On November 10, 1967, copies of his attorney’s motion and brief were served by mail upon defendant in the penitentiary, and thereafter he was notified by this court that he might have until January 8, 1968, to raise any points he might choose in support of his appeal. He filed on January 5 a document in which he reiterated some of the points presented in his attorney’s brief, and in addition made the following points:

(1) A pretrial conference was held among the court, the State’s Attorney, and defendant’s attorney, at which defendant was not present and at which evidence was heard concerning defendant’s guilt. The conference apparently involved an attempt to ascertain whether the case would proceed to a jury trial or might be disposed of on a plea of guilty. There is no reason to believe that any evidence was heard, nor does the record indicate that anything transpired which would have required or authorized the presence of defendant. Thereafter, defendant’s attorney advised him that he would probably receive a sentence of 14 to 20 years on a guilty plea, which would be less than he might receive after a trial.

The point thus raised by inference was answered, adversely to defendant’s contention, in People v. Darrah, 33 Ill2d 175, 210 NE2d 478.

(2) Defendant’s attorney did not provide him with adequate representation.

Defendant will not be heard to make this contention in regard to privately retained counsel, in the absence of a showing of extraordinary incompetence which is completely lacking in this record. People v. Morris, 3 Ill2d 437, 444, 121 NE2d 810; People v. Underhill, 38 Ill2d 245, 254, 230 NE2d 837.

(3) The indictment was defective since it alleged only the date and county of the crime and did not state with sufficient particularity the time and place of the alleged offense.

This contention is also without merit. See People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 323, affirmed 34 Ill2d 179, 214 NE2d 765; and People v. Blanchett, 33 Ill2d 527, 212 NE2d 97.

(4) The circumstances of the case require reduction of sentence as well as charge. Reduction of defendant’s sentence on the facts of this case is not an arguable point. People v. Taylor, 33 Ill2d 417, 424, 211 NE2d 673. Furthermore, the sentence is within the penalty range of manslaughter, to which offense defendant seeks to have the charge reduced. (Ill Rev Stats (1965), c 38, § 9-2 (c).) It may be noted also that defendant’s prior record included a conviction for larceny committed while he was on probation under a burglary conviction. He was thereupon sentenced to serve a term in the penitentiary for the burglary.

In addition to studying the briefs filed by defendant and his attorney, we have made “a full examination of all the proceedings” in accordance with the dictates of Anders, supra. We conclude that the legal points raised are not “arguable on their merits,” and that the appeal is “wholly frivolous.” Defendant’s attorney is therefore given leave to withdraw, and the judgment of conviction is affirmed.

Affirmed.

McCormick, P. J. and DRUCKER, J., concur.

       Pursuant to current Supreme Court Rule 606, the court’s order of November 28, 1966, adopting the current rules, and former Rule 27(7) (b).


author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lester Jones, Defendant-Appellant.
    Gen. No. 51,335.
    First District, Fourth Division.
    February 14, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman, Marshall J. Hartman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard A. Rinella, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant was found guilty of involuntary manslaughter after a jury trial and was sentenced to serve a term in the penitentiary of not less than six nor more than ten years. The sole issue on this appeal is the propriety of the sentence.

Defendant was sitting in front of his home at 1130 East 42nd Street in the presence of James Crittenden, Nathaniel Knight and decedent, Samuel McCorkle. Decedent was his friend and had been playing with Nathaniel Knight waving a pocket knife backwards and forwards in front of him. Decedent then walked over to defendant, who was sitting in a chair, and began playing with him in the same manner. Defendant asked him to go “because I was going to go upstairs.” Decedent continued and defendant pulled a gun from his hip pocket. The hammer cocked when he pulled it out and the gun spun around his finger and went off. Both defendant and decedent were just playing at the time of this occurrence. Decedent slumped to the ground and both Crittendon and Knight started to run. Defendant, seeing a bullet hole in decedent’s chest, called the other boys back and persuaded a passerby to take them to the Michael Reese Hospital where defendant remained for about an hour. From the hospital defendant returned to his apartment. After being notified by a neighbor that the police were looking for him he went downstairs where he was arrested. Initially defendant denied knowledge of what happened but he subsequently gave a full confession. An Assistant State’s Attorney described his behavior as cooperative.

There was a hearing in aggravation and mitigation at which it was established by defendant that he was twenty years old, that he had never been convicted of a crime although he had been arrested once or twice for a misdemeanor, that he was single, attended Cregier Vocational High School, was a lifelong resident of Chicago and a member of the Baptist faith. After a hearing in aggravation and mitigation the court said:

I sentence this defendant to a term of not less than six years nor more than ten years, for which time he shall be committed to the Illinois State Penitentiary. Judgment is entered on the finding and sentence. We have too many of these accidents.

Defendant first seeks reversal of the sentence because the trial judge, after receiving the arguments presented by defense counsel in mitigation, failed to seek “further information as to defendant’s moral character, background or occupation.” Defendant argues that Illinois Revised Statutes, 1965, chapter 38, § 1-7(g), requires this of the trial judge, citing People v. Evrard, 55 Ill App2d 270, 204 NE2d 777. The record shows that defendant’s counsel properly argued mitigating circumstances and the judge was not without the relevant information with which to sentence.

Defendant’s second argument is that the sentence was excessive in view of the youthfulness of the defendant, his lack of a prior conviction, the accidental nature of the occurrence and the purposes of the parole system. More specifically, defendant seeks the lessening of the minimum sentence. Illinois Revised Statutes, 1965, chapter 38, § 9-3 (c) provides: “A person convicted of involuntary manslaughter shall be imprisoned in the penitentiary from one to ten years.” Thus this sentence was within the statutory mandate. However, in People v. Lillie, 79 Ill App2d 174, 223 NE2d 716, the court said at page 179 in reducing sentence:

Advances in the fields of psychology, psychiatry and sociology have contributed to a greater understanding of the motives underlying the commission of criminal offenses, and the techniques and methods which are of value in the rehabilitation of offenders.
The hope of earlier release is a great incentive to a prisoner to participate in the educational and rehabilitation programs provided in modern penal institutions. Excessive minimum sentences, imposed by the courts, may defeat the effectiveness of the parole system by making mandatory the incarceration of a prisoner long after effective rehabilitation has been accomplished.
Inherent in the parole system is the risk of recidivism, but an enlightened society has long since rejected the medieval concept of punishment which imposed the death penalty for crimes now categorized as petty offenses. Society’s safeguard against recidivism is the power of the parole authorities to terminate the conditional release and return the offender to prison. A lengthy maximum sentence is not so likely to impede the operation of the system because the prisoner, although subject to parole supervision, is not mandatorily confined.

In the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures (Tentative Draft 1967) it was recommended to the legislatures at page 21 that:

In order to preserve the principle of indeterminacy, the court should not be authorized to impose a minimum sentence which exceeds one-third of the maximum sentence actually imposed.

We believe these principles to be sound. In applying them to the instant case, it must be considered that defendant was a twenty-year-old student at Cregier High School and that he had no prior record of conviction. He cooperated with the police and such cooperation has consistently been considered in mitigation. People v. Steg, 69 Ill App2d 188, 215 NE2d 854. This is not the picture of a person beyond the reach of rehabilitative processes. The judge’s explanation that: “We have had too many of these accidents” evidences a failure to give proper weight to the individual circumstances of the defendant. We feel that setting the minimum sentence at six years and the maximum at ten years is not in the best interests of either the community or the defendant. Accordingly, the minimum sentence is reduced from six years to three years. The judgment and sentence are modified to provide that the sentence imposed on defendant be confinement to the penitentiary for a term of not less than three years nor more than ten years, and as so modified, the judgment is affirmed.

Judgment modified, and as modified, affirmed.

MCCORMICK, P. J. and ENGLISH, J., concur.

       Ill Rev Stats 1965, e 38, § 1-7(g) reads as follows:
      For the purpose of determining sentence to be imposed, the court shall, after conviction, consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if any, as to the moral character, life, family, occupation and criminal record of the offender and may consider such evidence in aggravation or mitigation of the offense.


author: TRAPP, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jim E. Myers and Harold W. Fickes, Defendants, Jim E. Myers, Defendant-Appellant.
    Gen. No. 10,842.
    Fourth District.
    February 15, 1968.
    Rehearing denied April 1, 1968.

      John F. Dunn, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur (J. Daniel King, Assistant State’s Attorney, of counsel), for appellee.
   TRAPP, J.

Defendant was found guilty upon two charges of deviate sexual assault following a bench trial. Sentence was fixed at not less than 8 years nor more than 14 years.

Defendant urges that there was a failure to prove that the defendant compelled the victim to perform or submit to acts of deviate sexual conduct by force, or threat of force, so that there was no proof of guilt beyond a reasonable doubt. Chapter 38, § 11-3, Ill Rev Stats, 1965.

Defendant was jointly indicted with one Fickes for the offense at issue, but upon motion the cases were severed. We have affirmed the conviction of Fickes in 89 Ill App2d 300, 231 NE2d 602.

Lobb, upon whom the offenses were alleged to have been committed, was 18 years of age with an intelligence quotient ranging from 60 to 70. He left the 6th grade when 16 years of age. A psychiatrist classified Lobb as a mental defective, but stated no findings as to matters of emotional or social judgment. Lobb had been arrested for “grand theft.”

The events at issue took place during two days when Lobb was confined in a cell block in the county jail with ten or more other prisoners. The record discloses the utter beastiality to be found in the jungles of modern society. The testimony of nine inmates in addition to Lobb and defendant, defies coherent statement of persons and times but discloses repeated acts of fellatio in groups and by individuals performed upon Lobb in the cells and in the bullpen. It appears that Fickes, the defendant and most of those confined in the tier, struck and beat Lobb as they pleased, and as a matter of sport, and he was compelled to perform degrading and humiliating acts in the presence of the group. Defendant admits the acts performed on Lobb upon two occasions, but denies that he compelled them by force, or threat of force. Rather, he insists that Lobb came to him and asked to engage in the act. Most of the witnesses testified to seeing defendant strike Lobb at various times, and that defendant participated at the time when Fickes and others compelled Lobb to engage in the acts. There is a fragment of testimony that defendant urged Fickes to cut down on the sport, but this was expressed in terms of fear that the jailer might discover the continuing orgy. Lobb was called as a witness by the defendant. He testified that during subsequent incarceration, he and defendant had become friends, and that defendant had apologized to him for what was done. He testified that while Myers did not use force or threats, the submission to defendant was forced by Fickes beating him, Lobb.

In the Committee Comments to the statute defining the offense, (Chapter 38, § 11-3, Smith-Hurd Annotated Statutes at p 593), it is stated that the force, or threat of force, in committing the offense of deviate sexual assault is generally equivalent to that required in rape. In People v. Dean, 78 Ill App2d 2, 223 NE2d 175, it was held that force used by one defendant in committing rape was attributable to other defendants who also had intercourse with the victim. The testimony of Lobb brings this prosecution within such rule.

Defendant urges that there was no evidence tending to show that Lobb resisted to the utmost of his capacity, that resistance was futile, or that he was overcome by fear. It is argued that it must be concluded that Lobb consented to the act with defendant as there was no evidence that he complained to the jailer or to a trusty.

No witness testifying, except the defendant, suggests that Lobb consented, or willingly participated, in the gross maltreatment suffered at the hands of the other prisoners.

If the offense of rape is taken as an analogy, the making of a prompt complaint by a victim is not considered proof of the commission of the offense, but is an exception to the hearsay rule for the purpose of corroborating a lone witness. People v. Scott, 407 Ill 301, 95 NE2d 315; People v. Finley, 22 Ill2d 525, 177 NE2d 149; People v. Symons, 23 Ill2d 126, 177 NE2d 185. In this case there is no necessity to corroborate a sole witness, for the whole record proves the acts charged.

Upon the issue of resistance, it is sadly demonstrated in this record that an individual’s security is not protected in the county jail. Briefly summarized, its method of operation was that the deputy serving as turnkey maintained an office keeping records and operating a radio. The cell tiers were not under observation, but if the radio was not turned on too loud, or he was not using a typewriter, he could hear the calls from the cell tiers. The prisoners called frequently and if he heard a call, he might send a trusty. The defendant himself testified that a trusty observed at least a part of the treatment suffered by Lobb and laughed at the performance.

The turnkey on each shift might make a tour of the catwalk, but there was no apparent effort to observe each man in the jail. The only apparent specific observation of each man was in the morning and at night as the prisoners counted off in moving between the cell tier and the bullpen, but the turnkey was at some distance when this observation was made.

The turnkeys relied upon the “sheriff” of the tier to maintain order and report trouble. During this period, the “sheriff” was one Fickes who has been convicted on like charges. Fickes, at this trial, testified that Lobb cried for help and yelled for the turnkey only to be beaten more. Defendant, testifying in this case concerning the acts of the others, stated that when Lobb was crying and hollering, they might desist so that the turnkey would not be attracted.

The deputy, Hildebrand, serving as a turnkey, testified that on May 6, 1966, Lobb was put in safe keeping when it was discovered that he was threatened, was crying, had a black eye and complained of being beaten. This discovery by the jailer occurred when Lobb’s father called to see him, so that official attention was directed to the condition of Lobb.

The trial court stated, at the termination of the testimony, a conclusion that the defendant and Fickes were the leaders in the offenses committed against Lobb. His observation of the witnesses gives weight to his judgment, and a careful review of the record requires affirmance of the conviction of the offense charged on May 6,1966.

Upon this appeal defendant contends that the charge of an offense on May 5, 1966, is void for the reason that the Count, designated with a Roman numeral “I,” was not signed by the foreman of the grand jury, contrary to the provisions of chapter 38, § 111-3, Ill Rev Stats 1965. The record discloses that the trial court imposed but one sentence. The evidence supports the judgment of the conviction as to the offense charged on May 6, 1966 in Count n. We do not, therefore, reach the issue raised as to the offense charged on May 5, 1966, in Count I of the indictment.

Affirmed.

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


text:
    Joseph P. Naumovich, Administrator of the Estate of Josephine Naumovich, Deceased, and Paul F. Wanless, Plaintiffs-Appellees, v. Nelson O. Howarth, Mayor, Ines Hoffman, et al., Commissioners and/or as Local Board of Improvement, and Dwight H. O’Keefe, Jr., as Commissioner of Public Health and Safety, George Rose, et al., as Building Inspectors, Defendants-Appellants.
    Gen. No. 10,884.
    Fourth District.
    February 15, 1968.
    Walter L. Oblinger, Corporation Counsel, of Springfield (W. J. Simhauser, of counsel), for appellants.
    Presney and Casper, of Springfield, for appellees.
   TRAPP, J.

The defendants, who represent the City of Springfield in the official capacity of Commissioners and as building inspectors, appeal from a decree of the Circuit Court directing the issuance of a building permit authorizing the construction of a gasoline service station upon property originally owned by one Josephine Naumovich, and holding void an ordinance passed subsequent to the application for the building permit, which ordinance reclassified the property from “E,” Heavy Industrial Use District to “A,” Residence Use District.

The defendants are referred to herein as the City. Plaintiffs are Joseph P. Naumovich as administrator of the estate of Josephine Naumovich, the original owner, and Paul F. Wanless, who had an option to purchase at the time of the application for the building permit.

The original plaintiff, Josephine Naumovich, owned a tract of ground on the southwest corner of Sangamon Avenue and 19th Street in the City of Springfield, having a frontage of about 136 feet on Sangamon Avenue and about 150 feet on 19th Street.

On August 10,1964, Josephine Naumovich gave an option to purchase the above described property for $28,200 to James McCIernon, who assigned the option to intervening plaintiff, Paul F. Wanless. The option, which required the option seller to obtain commercial zoning, was later extended to August 10,1965.

On October 27, 1964, a City building inspector, having his attention called to the industrial use classification by an employee of the plaintiff, Wanless, wrote an inquiry to the supervisor of inspectors requesting advice as to action to be taken in case a building permit should be applied for. On November 5, 1964, Mr. Wanless examined the zoning maps and ascertained from the City Clerk that the property had been classified as “E,” Heavy Industrial Use District by the original zoning ordinance of the City in 1924, along with other property adjoining Sangamon Avenue from 15th Street east to the eastern city limits, and had not been changed since. Between the original enactment and the transaction with Mr. Wanless, Josephine Naumovich, apparently believing that the classification was “A,” Residential, applied for and obtained a variation to use the property as a frozen custard shop.

The City, subsequent to the building inspector’s inquiry as to action to be taken, and apparently as a result thereof, did, on November 10,1964, pass a resolution referring the question of reclassification of all property on Sangamon Avenue between 15th Street and the east city limits, including the property in question, to the Zoning Board of Appeals for public hearing and recommendation. The City resolution recommended reclassification to “A,” Residential Use District, and directed that no building permit other than a residential permit should be issued by the Building Department of the City of Springfield.

On November 17, 1964, Mr. Wanless submitted to the City an application for a permit to erect a gasoline service station upon the property in question together with appropriate plans, and paid the required fee. The application for permit was refused upon the authority of the resolution aforesaid.

As a result of its public hearing, the Zoning Board of Appeals recommended that all of the property on Sangamon Avenue from 15th Street east to the east city boundary be reclassified to “A,” Residential Use District, except the subject property, and, as to it, the Board recommended that it not be rezoned to “A,” Residential Use District.

On December 15, 1964, the City enacted an ordinance, contrary to the recommendation of the Zoning Board of Appeals, and reclassified the subject property to “A,” Residential Use District.

Josephine Naumovich filed a suit for declaratory judgment and an injunction on January 18,1965, and a default decree was entered March 9, 1965. The decree was vacated on motion of the City on June 8,1965.

On June 2, 1965, Mr. Wanless granted an option for a five-year lease to Humble Oil and Refining Company, which company exercised the option on July 28, 1965. On August 10, 1965, Mr. Wanless exercised the option to purchase the Naumovich property, stating that payment would be made when merchantable title is conveyed, and “. . . when your obligation ‘2. that commercial zoning be secured thereby allowing full use of the above property for commercial use’; has been accomplished as agreed in said option agreement.”

On August 26, 1965, Mr. Wanless obtained leave to intervene as a plaintiff. A decree was obtained May 20, 1966, finding the ordinance of December 15, 1964, rezoning the plaintiff’s property, to be arbitrary, unreasonable, unconstitutional and void as applied to plaintiff’s property and enjoining its enforcement. The decree also found that the resolution of November 10, 1964, forbidding the issuance of a building permit, was void.

Plaintiffs contend that the City could not by the resolution of November 10, 1964, suspend the zoning ordinance then in effect, and also contend that there were sufficient acts in reliance upon the existing zoning to give a vested right in the issuance of a building permit.

As to the first contention we agree. Sgro v. Howarth, 54 Ill App2d 1, 203 NE2d 173.

The acts of plaintiffs in reliance upon the existing zoning are stated by plaintiffs. On November 17, 1964, Mr. Wanless applied for a building permit, submitted the required plans and specifications and paid the filing fee of $30. He expended $50 for a plot plan to be submitted with the application. He stated that immediately prior to filing the application he had about one hundred separate negotiations and items of business concerning the possibility of a service station on the location.

The default decree in favor of the plaintiff, Josephine Naumovich, was entered March 9, 1965. Mr. Wanless testified that thereafter he conducted considerable negotiations with major oil companies, and obtained a commitment for a $90,000 loan from Continental Assurance Company. Mr. Wanless testified to expenses in this period of $200 in telephone calls, $400 in office help, and $325 for an additional three dimensional plot plan by Reynolds and Walschleger, in addition to his own time.

If substantial change of position in reliance on the zoning is required to sustain the plaintiff’s position, we do not think the decree can be sustained. This case differs from Sgro v. Howarth, 54 Ill App2d 1, 203 NE2d 173. In that case the plaintiff paid $23,000 relying on Commercial Zoning of the lot, and entered into an option to sell the property to an oil company for $40,000 prior to applying for the building permit, and prior to the City’s attempt to rezone the property.

Here, at all times, the agreements were conditional upon suitable zoning. There is no showing of large expenditures or unconditional commitments. Similar expenditures were involved in the case of People ex rel. Nat. Bank v. Cook County, 56 Ill App2d 436, 206 NE2d 441.

Considerable difficulty is experienced in reconciling the rules announced in the authorities that, (a) rights are fixed at the time the application for a building permit is made; (b) no resolution suspending existing zoning ordinances is effective; (c) an applicant has no complaint regarding retroactive zoning unless he experienced a substantial change of position relying on existing zoning, and (d) where the City’s wrongful act prevents one from acquiring a vested right, the City cannot take advantage of a situation which it caused. See Sgro v. Howarth, 54 Ill App2d 1, 203 NE2d 173; Chicago Title & Trust Co. v. Palatine, 22 Ill App2d 264, 160 NE2d 697; and Deer Park Civic Ass’n v. City of Chicago, 347 Ill App 346, 106 NE2d 823.

The opinion in Sgro v. Howarth, 54 Ill App2d 1, 203 NE2d 173, distinguishes Chicago Title & Trust Co. v. Palatine, 22 Ill App2d 264, 160 NE2d 697, on the ground that in the Palatine case there was a comprehensive zoning ordinance on file and under consideration at the time of the application for a permit. In Phillips Petroleum Co. v. City of Park Ridge, 16 Ill App2d 555, 149 NE2d 344, the change in zoning ordinance was not adopted until eight months after the building permit was applied for, and six months after the petition for mandamus. It also appears that the applicant purchased the property outright, relying upon commercial zoning. The Palatine case is based in part upon the fact that the City acted within a reasonable time. In Deer Park Civic Ass’n v. City of Chicago, 347 Ill App 346, 106 NE2d 823, there was unquestionably a substantial change of position to the possible extent of $660,785.21.

While the decided cases state that the rights of the parties are fixed at the time of the application for the building permit, that a municipality cannot suspend the operation of the existing law, and that the city may not take advantage of its own acts to prevent the acquisition of a vested right, so that no actual change of position is necessary to enforce the right to the building permit, nevertheless, the opposite conclusion is reached by logically applying the principles that no one has a vested right in the continuance of a law and that the ordinance applicable at the time of the decision governs. Phillips Petroleum Co. v. City of Park Ridge, 16 Ill App2d 555 on 565, 149 NE2d 344.

It, therefore, appears that the principles are made workable by inquiry into such factors as, (1) a substantial change of position before an orderly change in the law, (2) a notice of likelihood of change in the law prior to change in position of the applicant, (3) the regularity of the proceeding of the municipality to make the change, and (4) the promptness with which the municipality takes action.

We find no case which holds that the rights of the parties are frozen at the time of application if the party has not theretofore changed his position relying on existing law.

Here the change in position prior to the passage of the December 15, 1964, ordinance was not substantial under the authorities.

We are confronted with an additional problem in this case. The decree recites that it is based upon evidence heard in the case, that the plaintiff Naumovich would be deprived of the difference between $8,250, residential value, and $28,000 commercial value, and the plaintiff, Wanless, would be deprived of the advantages of a service station lease which it finds is the highest and best use of the property. There are other findings that there is no detriment to the balance of the neighborhood because of a shopping center, proposed immediately across the street, because of the heavily travelled street and commercial establishments in the area. There is a finding that the ordinance deprives the plaintiff of property without due process of law. The court holds the ordinance reclassifying the property unconstitutional and void on the ground that the ordinance itself is unreasonable.

The defendants do not attack these findings in their appeal. Plaintiffs do not argue the constitutionality of the ordinance as an issue upon appeal. Our decision that the change of position based upon the belief in the availability of the site for a service station is insufficient to confer a vested right has no bearing upon the constitutionality of the ordinance itself.

We are unable to determine whether the court would have entered the decree if it had determined that the change of position was not substantial, as we have here held.

It is, therefore, necessary to reverse and remand with directions to the court to determine whether the amended ordinance as applied to this property is unreasonable and void, independent of any reliance by the plaintiff on the existing state of the law with respect to the zoning of the property.

Reversed and remanded.

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