author: Mr. PRESIDING JUSTICE GUILD

text:
    Stephen Tonchen, Plaintiff-Appellee, v. All-Steel Equipment, Inc., Defendant-Appellant.
    (No. 71-324;
    Second District —
    August 6, 1973.

      Rehearing denied September 11,1973.

      Alfred Y. Kirkland, of Elgin, and Robert L. Stem, of Mayer, Brown & Platt, of Chicago, for appellant.
    Wilham J. Voelker, Jr., of Heyl, Royster, Voelker & Allen, of Peoria, and R. Sheridan Welch, of Kewanee, for appellee.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

The plaintiff filed a seven count complaint for fraud and deceit based on the alleged failure of the defendant, All-Steel Equipment, Inc., an Illinois Corporation (hereinafter referred to as All-Steel) to comply with promises made to plaintiff, which induced him to release his claims against a corporation entitled B. M. Fittings Corporation (hereinafter referred to as BMFC), when All-Steel was in the process of acquiring the assets of BMFC. Trial was had on the first four counts only; counts V, VI, and VII which sought specific performance of the alleged promises were not passed upon by the court or jury. The jury returned a verdict on all four counts totalling $2,340,000; $340,000 being for compensatory damages and $2,000,000 for punitive damages. Judgment was entered on the verdict and defendant appeals. The issues presented to this court are whether the defendant is entitled to a judgment notwithstanding the verdict, to a new trial, to a remittitur of all the punitive damages and a portion of the compensatory damages.

The plaintiff, Stephen Tonchen, had been engaged in various phases of design and manufacture of electrical fittings for a period of over thirty years. In 1957, at the request of the B. M. Fittings Corporation, a company owned by the Briegel family, Tonchen went to Galva, Illinois, and was employed for the purpose of introducing a method of producing fitting components which he developed into the operation of BMFC. BMFC was a manufacturing concern located in Galva, specializing in a type of electrical indenter fitting. Tonchen proceeded to replace BMFC equipment with multi-slide machinery, and his own tooling and machine parts of the value of $150,000 which he had brought from the east, where he had been engaged in business. Two years later, a dispute arose between Tonchen and the Briegels, the owners of BMFC. Tonchen filed a lawsuit and judgment was entered in Tonchen s favor in the amount of $204,485.56. BMFC was unable to pay the judgment and an agreement was entered into on May 16, 1964 as to payment in part, substantially as follows:

(1) $104,485.56 of BMFC’s inventory was to be sold and Tonchen was to act as intermediary to collect the proceeds of the sale as partial payment.

(2) BMFC was to pay Tonchen $100,000 in annual installments equal to 20% and not more than 75% of net profits of BMFC before taxes. This payment was to be not less than $20,000 a year.

(3) Tonchen was to remain as general manager until the $100,000 evidenced by a note in that amount was paid, or for five years if the note was not paid off in that time. His salary was to be $15,000 a year plus 25% of BMFC’s net profit before taxes.

(4) It was further provided that the contract entered into was not an exclusive contract and Tonchen could work for himself or others.

The agreement recognized ownership of his trade secrets, specifications, designs and processes for production being used by BMFC. Upon the termination of this management contract the title to machines, parts, and tooling parts, acquired or introduced into the operation of BMFC by Tonchen was to vest in BMFC, subject to the condition that

“none of such machines, machine parts, tooling or tooling parts shall be sold by the Company or otherwise disposed of so that the same enter into competition with Tonchen or any company or party that he may be connected with, otherwise said machines, machine parts, tooling or tooling parts shall become the property of Tonchen.”

Tonchen proceeded to sell part of the inventory and collected $100,000. He then invested $22,000 of that back into the business of BMFC under the agreement of May 16th, 1964, above. Tonchen had also established and conducted his own business in Calva, Illinois, entitled the Royal Engineering & Manufacturing Company with some seven employees, which was concerned with the development of liquid tight fittings.

In May, 1964, All-Steel became interested in the BMFC plant in Calva and the liquid tight fittings. It happened that by blending the component parts of BMFC’s and Tonchen’s fittings, a saleable item could be produced.

In August, 1964, Tonchen went to Hawaii to visit his son who was ill. When he returned, BMFC locked him out of their plant on or about August 11, 1964.

About August 25, 1964, All-Steel through its various officers began negotiating with BMFC for the purpose of acquiring their plant. These negotiations continued on into the autumn.

On October 27, 1964, Tonchen filed a second suit against the Briegels and BMFC for the breach of the May 16, 1964 agreement. In that four count suit Tonchen prayed for the following:

(1) The sum of $71,875 salary due to him under the May, 1964, agreement.

(2) $100,000 as Tonchen’s 25% share of BMFC’s profits for five years.

(3) Restitution of trade secrets, specifications, tools and processes valued at $150,000.

(4) $96,533.02 balance due on the note given under the May 16, 1964 agreement.

In January, 1965, All-Steel came to the conclusion they would not purchase BMFC’s assets without a release of Tonchen’s claim or rights. Negotiations were continued however with Tonchen by All-Steel through a Mr. Weber (an employee of All-Steel) during the month of January, 1965. After conversations between Tonchen and Weber, on January 26, 1965, Weber set up a meeting with certain officers of All-Steel, Tonchen, and their respective attorneys for February 2, 1965, at All-Steel’s headquarters in Aurora. The purpose of this meeting dealt with arrangements for All-Steel to purchase BMFC and to determine from Tonchen what would be necessary to release his claims.

On February 2, 1965, the All-Steel officials met with Tonchen and attorneys for both Tonchen and All-Steel were present. Tonchen was advised to keep in touch with Mr. Weber and a Mr. Rudolph, who was also from All-Steel. Several meetings were had between Tonchen, Weber and Rudolph, relative to the reducing of the February 2, 1965, agreement to writing. It is alleged that because of the animosity between the Briegels and Tonchen, All-Steel did not want to reduce the agreement to writing. Tonchen, on the other hand, sought to have it put in writing but this was never accomplished.

On May 14, 1965, Tonchen settled the second lawsuit described above, with BMFC for the sum of $122,000 and gave a complete release of any niaim he had against the Briegels and BMFC under the May, 1964, agreement.

Ten days later, on May 24, 1965, Tonchen signed a letter to All-Steel in which he did not refer to any employment contract, liquid tight fittings, or other matters for which he is claiming compensation in the suit before this court. The letter signed by him is as follows:

“It is my understanding that you are now proposing to purchase the business and assets of B. M. Fitting Corporation, and that out of the proceeds of such purchase, settlement of my various claims against that corporation and affiliated parties will be effected by the payment of $122,000, in which I will participate.
This will confirm my understanding (and as an inducement to you to so purchase the assets of B. M. Fitting Corporation, I hereby covenant) that the various releases given by the undersigned to B. M. Fitting Corporation, with respect to the claims of the undersigned, are intended to include All-Steel Equipment, Inc. and its subsidiaries as beneficiary thereof by virtue of succession to the business of B. M. Fitting Corporation. Further, I warrant that said All-Steel Equipment Inc. or its subsidiaries may continue the production of the present products sold by B. M. Fitting Corporation without obligation for royalty, license fees, or other claim of the undersigned as a result of such operations.”

The obvious purpose of this document was to induce All-Steel to purchase the assets of BMFC. It is contended that because of the bad feeling between Tonchen and the Briegels no mention was made of any possible connection between Tonchen and All-Steel in the future.

On June 2, 1965, the BMFC properties were purchased by and transferred to All-Steel. In July, 1965, All-Steel stopped all negotiations with Tonchen. The instant suit was filed by Tonchen against All-Steel in November of 1970. =

In Count I Tonchen set up the February 2, 1965 oral agreement with All-Steel claiming a salary of $15,000 a year, for one-third of his time, alleging a total amount due of $140,000, no number of years being specified.

In Count II Tonchen alleged that he relied upon the representation of All-Steel and he was induced and agreed to permit All-Steel to market his fittings either on a royalty basis with the fittings manufactured by the defendant, or on a discount basis, the fittings to be manufactured by Tonchen. He alleged that he terminated negotiations with other manufacturers as a consequence of All-Steel’s representations. He further alleged that as a result of the fraudulent representations of the defendants he was damaged in the sum of $100,000 and because of the malice and fraud involved, he was entitled to punitive damages of $1,000,000.

In Count III Tonchen alleged that in the meeting with All-Steel on February 2, 1965, Tonchen advised All-Steel that there were orders of BMFG procured by Tonchen in the process of being honored and filled; that Tonchen believed that All-Steel would honor the delivery of these orders, and as a result thereof he released his claim against BMFG, and by so doing he enabled All-Steel to acquire the BMFG business. He further alleged that All-Steel’s representations that they were making such deliveries was the only reason that he released his claims against BMFG. In this count Tonchen contends that the representation as to the delivery of these orders was false and untrue, that he was damaged because of the alleged fraudulent and malicious representations in the sum of $50,000, and further, because of the fraud and malice he was entitled to $1,000,000 punitive damages.

In Count IV Tonchen alleged that at the February 2, 1965, meeting the defendant All-Steel agreed that they would make available to him at the All-Steel plant, facilities and certain production parts of BMFG for his use in his personal development work to the same extent that they had been made available to him under his contract with BMFG. This was the only factor which caused him to release his claim July 2, 1965, against BMFG for damages for their failure to provide such facilities. He further alleged that these representations were made by All-Steel to induce him to release his claims against BMFG, that they were false and fraudulent, and that he is entitled to $50,000 in compensatory damages and $1,000,000 in punitive damages.

The entire suit before us is based upon the purported oral agreement of February 2, 1965 between Tonchen and All-Steel. This meeting took place at the All-Steel office. Messrs. Frank Me Quown, Maynard H. Snyder, and Wesley A. Weber, were present representing All-Steel. It is to be expressly noted that at this meeting both All-Steel and Tonchen were represented by counsel, Mr. Koerber representing All-Steel and Mr. William J. Voelker, Jr., representing Tonchen.

We turn first to Count II of the complaint. In this count the plaintiff alleged that at the February 2, 1965 meeting, All-Steel agreed that they would merchandise Tonchen’s liquid tight fittings on a priority basis for a period of one year. Plaintiff alleges that he did not negotiate with anyone else because of this and that All-Steel refused to market the liquid tight fittings, thus resulting in actual compensatory damages to him in the sum of $100,000 and this is the verdict the jury brought in. To substantiate this part of Tonchen’s complaint, he alone testified as to the possible profit he could have made from the marketing of his fittings. While the testimony is confusing it would appear that in substance Tonchen testified:

“A. The fittings that I planned to market under this price list were the fittings that I had made a prototype or sample of, when I was at B. M. Fittings Corporation’s plant.”

He further testified that he was going to place certain fittings on the market for the first year; that he had computed the cost and the sales he reasonably expected to make based upon his knowledge and experience; and that it would be a little over three-quarters of a million dollars which figure represented what the “basket electrician” would pay (“basket electrician” being one who buys the item and places it in his basket for use on the job). He further stated that his sales price would be one-half of the three-quarters million dollar figure and that on that figure his profit would be either 5% to 10%, or 5% to 15%. It can thus be seen that by Tonchen’s own testimony his profit, if he in fact did produce the items and were able to sell them, would range from $18,650 to $56,250. It is difficult to see on the basis of this, it being the only testimony as to the loss suffered due to All-Steel’s alleged failure to market his product, how the jury could award $100,000 in actual damages.

As counsel has pointed out:

“An estimate of profits by an interested witness does not constitute such evidence as will support a judgment for damages.” Podlaski v. Bender, 150 Ill.App. 312, headnote.

In addition to this, in this court’s opinion the loss of profits from the alleged failure, if any, of All-Steel to market Tonchen’s product is speculative. (See Rapp v. Hiemenz (1969), 107 Ill.App.2d 382, 246 N.E.2d 77.) Likewise, in Consumers’ Pure Ice Co. v. Jenkins (1895), 58 Ill.App. 519, 524-525, the court held:

“* « * a thousand things might have prevented the realization of the profits sanguine witnesses estimate could have seen. Customers may fail to pay; rivalry may cause a decline in price; accidents may suspend business; injuries to employees or strangers may cause loss; dishonesty may sweep away funds.”

In substance, as counsel has pointed ouh the Illinois courts have repeatedly held that:

“Profits cannot be recovered as an element of damages where they are speculative, contingent or uncertain.” Saladan v. East St. Louis & Interurban Water Co. (1936), 284 Ill.App. 358, 361, 1 N.E.2d 731, 733.

See also Weiland Tool & Mfg. Co. v. Whitney (1969), 44 Ill.2d 105,117, 251 N.E.2d 242, 248-249.

To emphasize the speculative nature of plaintiffs claim in this Count it is to be noted that Plaintiff testified that from July, 1965, when Tonchen and All-Steel came to a parting of the ways, to the date of the trial, a period of approximately five years, Tonchen never sold any of his liquid tight fittings to the industry.

With respect to Count III Tonchen contends that he advised All-Steel that there were unfilled orders with BMFC which All-Steel would fill and that for that reason he released his claim against BMFC. In this regard the record discloses that Tonchen testified that he advised Mr. Me Quown of All-Steel on February 2, 1965, that there were orders that “BMFC was committed to because they had the cash laid down in ' the bank” and that Me Quown stated there was no problem and the orders would be filled. In his testimony he then referred to four com- ' panies whose names he gave to Me Quown. The record discloses no other evidence with regard to these unfilled orders. Tonchen could not make any personal profit on these orders nor was he personally liable for BMFC’s failure to complete them, nor was he liable for All-Steel’s failure "to complete these orders, if there were any. The only damage that the plaintiff could suffer from the failure of All-Steel to fill these orders would be, as he alleged, damage to his reputation and the trial judge in fact charged the jury that the plaintiff could recover on this count “for the damage to his reputation proved by the evidence to have resulted from defendant’s wrongful conduct in failing to fill the orders of B. M. Fittings Corporation.” As counsel for the defendant points out, there is no evidence in the record whatsoever that the alleged failure of All-Steel to fill these orders damaged plaintiff’s reputation. No evidence in this regard was adduced in any fashion except by counsel’s statement in his closing argument that plaintiff’s reputation was so damaged. The trial court in tire absence of any proof of damage to his reputation should have directed a verdict for the defendant as to Count III of the complaint.

Turning to Count IV of the complaint, the plaintiff alleged that at the same February 2, 1965 meeting the defendant advised the plaintiff there would be available to him at the All-Steel plant, tool and die making facilities, machine shop facilities, and production parts of BMFC for his use in his personal development work, the same as they were under the BMFC contract at Calva, and as a result of this he executed his release against BMFC and that the damages he sustained thereby were $50,000. The only testimony in this regard found in the record is that of the plaintiff himself where it appears that he figured that the value of these facilities “would be something in the neighborhood of approximately, in round figures, of $900 I would say per month.” He testified further that this was an engineering estimate on the particular work he was doing on the liquid tight fittings and he arrived at this figure as an estimate of what it would cost him to do this work at the B. M. Fittings plant with the set-up he had there. No other evidence was offered as to the length of time or as to the cost of comparable facilities. The somewhat incongruous situation in this regal'd is that while the record is confusing, Tonchen had testified that by the summer of 1965 he had for all practical purposes completed the work on the fittings. Once again, it is difficult to determine from the record how Tonchen arrived at the figure of $50,000 in actual damages, and again, even more difficult to ascertain upon what basis the jury, on the evidence adduced, gave an award for that amount. At $900 a month this would provide Tonchen with facilities for a period of four years and seven months, yet there is no evidence whatsoever as to time deemed necessary even by the self-serving testimony of Tonchen himself. The verdict of the jury in this regard is against the manifest weight of the evidence.

We next come to the defendant’s contention that under Illinois law the failure to perform a promise to do some act in the future does not constitute fraud. In support of this contention counsel directs our attention to the oft cited case of Brodsky v. Frank (1930), 342 Ill. 110 at 117-118; 173 N.E. 775 at 778:

a * A false representation within the meaning of the law, in order to constitute a cause of action, must be a representation as to an existing or past fact and not a mere promise to do some act in the future. A failure to comply with a future promise does not constitute fraud. The general rule is that to amount to fraud there must be a wilful, false representation as to an existing or past fact.”

Following Brodsky the Supreme Court of Illinois in Sinclair v. Sullivan Chevrolet Co. (1964), 31 Ill.2d 507, 510, 202 N.E.2d 516, 518, said:

“* * * To be actionable, a false representation must generally relate to an existing or past event, not to a promise or prognostication concerning a future happening.”

In Metropolitan Sanitary District of Greater Chicago v. Pontarelli (1972), 7 Ill.App.3d 829, 288 N.E.2d 905, 913, the alleged fraud was that at the time of the contract defendant represented it would do the work required, and while in fact defendant knew these representations were false and never intended to abide by the terms of the contract, plaintiff admitted that under Illinois law, which apparently at the present time is the minority rule, action for fraud may not be predicated upon promises to perform in the future. Plaintiff there urged the court to change the law in this regard which the court refused to do stating at pages 841-842:

* * In its brief plaintiff admits that no cause of action exists in Illinois based upon these grounds. Plaintiff goes on to urge that this court change the law in his regard, as other jurisdictions have done. We do not perceive that to be the function of this court, and we therefore decline to do so, following instead the existing law of this State as reiterated in Illinois Rockford Corp. v. Kulp (1967), 88 Ill.App.2d 458, 472-473, 232 N.E.2d 190, 198, rev’d. on other grounds, 41 Ill.2d 215, 242 N.E.2d 228, where the court stated:.
‘A misrepresentation relating to something to be done in the future does not constitute such fraud in law as will give rise to the recovery of damages in an action for fraudulent misrepresentation. The fraud must be complete at the time of the transaction and consequently cannot be based upon an intention to commit a fraud in the future. May v. (Chas. O.) Larson Co., 304 Ill.App. 137, 26 N.E.2d 139. A fraudulent misrepresentation which induces a person to action must be based upon a present or a past fact and cannot rest upon a false promise to do something in the future even though accompanied by an intention not to perform. Stewart-Warner Corp. v. Remco, Inc., (7 Cir.,) 205 F. ed 583.
Accord, Brodsky v. Frank (1930), 342 Ill. 110 117, 173 N.E. 775, 778."

In the instant case the plaintiff contends that Illinois Rockford Corp. v. Kulp cited above substantiates his position and states that that case involved conduct on the part of the defendant which went far beyond the mere making of promises to be fulfilled in the future. In Kulp the supreme court reversed the appellate court’s finding on the ground that there was a fiduciary relationship between the parties, that the defendant violated his fiduciary duty, but did not reverse the rule that a misrepresentation as to something to be done in the future constitutes fraud that will give rise to recovery of damages. See Federal Deposit Insurance Corp. v. Wainer (1955), 4 Ill.App.2d 233 at 237; May v. Larson (1940), 304 Ill.App. 137, 26 N.E.2d 139, 143.

We come then to the question of punitive damages. The plaintiff asked for a total of $3,000,000 in punitive damages in Counts II, III and IV of his complaint. The jury awarded him $2,000,000 in punitive damages. We have found above that the evidence adduced in this case does not substantiate compensatory damages of $100,000 returned by the jury in Count II as being purely speculative.

As to Count III we have found plaintiff failed to prove in any manner any damage to his reputation and that the trial court should have directed a verdict for the defendant as to Count III.

As to Count IV we have found that the verdict of $50,000 “being the amount asked by the plaintiff; for the use of BMFC facilities” was against the manifest weight of the evidence.

It can thus be seen that the jury on these three counts awarded the exact amount asked for compensatory damages but only awarded $2,000,000 instead of the $3,000,000 asked for punitive damages. While it is not necessary so to do, We are unable to determine upon which of the above three counts the punitive damages were allowed.

The courts of Illinois have repeatedly stated that punitive or exemplary damages are not a favorite of the law. City of Chicago v. Shayne (1964), 46 Ill.App.2d 33, 196 N.E.2d 521; Wetmore v. Ladies of Loretto (1966), 73 Ill.App.2d 454, 220 N.E.2d 491.

The basic rule in Illinois is that punitive or exemplary damages may not be awarded in the absence of actual damages. As early as 1873 in Freese v. Tripp, 70 Ill. 496, the court held that exemplary damages could not be awarded in the absence of finding of actual damage. This rule has been followed consistently in Illinois down to the last case reported on this question, Shrout v. McDonalds System, Inc. (1968), 90 Ill.App.2d 60, 234 N.E.2d 45, where the court held that where actual damages are not recoverable, there can be no award of punitive damages. Having found herein that the compensatory damages must be set aside for the reasons indicated above, it therefore follows that the punitive damages must be disallowed.

We now return to the contention of the plaintiff, Tonchen, in Count I of the complaint wherein he claimed $140,000 for salary. Tonchen contended that he was employed by BMFC on May 1, 1964 for a period of five years at the rate of $15,000 a year. On August 13, 1964 his employment was terminated by BMFC, and on October 28, 1964 Tonchen then filed a suit alleging the employment contract for five years at $15,000 per year. The claim for the purported lost salary was satisfied in full by the release given BMFC on May 24, 1965. The claim for salary in this suit is based upon the following remarks testified to only by plaintiff Tonchen as to the purported oral agreement entered into on February 2, 1965:

“Well, there was something said concerning employment but we did not talk about it per se. What I mean by that, we talked about it.”

In response to an inquiry by his counsel as to whether Mr. Me Quown said anything to Tonchen about the employment contract on February 2, 1965, Tonchen replied:

“A. He said ‘that as far as the employment was concerned,’ he said ‘that they do not have at the All-Steel or Raco plant a man who had abilities like mine. And as a part of the package arrangement that we were making I could come in there and have employment with them.’ And he made reference to the contract I have with Briegels.
He said you were paid $15,000 before there and you can have the same thing here on a one-third time basis.
Q. Were there any further details discussed — What if any further details were discussed at that time with reference to how much you were — of your time you were to spend with All-Steel?
A. There was a discussion about my age and there was a discussion about the time I would work, would be a" time I would select.”
» # e
“Q. What if anything was said as to how long the arrangement was to continue?
A. There was something said about how long the arrangement was to continue, but the thing was pretty much left — this was up to me to select the time.
Q. What if anything was said as to what part of your time was to be the one-third? What part of your one-third time was to be spent at All-Steel?
A. It was not particularized. It was left up to me. And it was discussed at that time my boy was in Hawaii and I could select the certain time I could go visit him.
Q. What if anything was said as to how long a period of time it was continuing — that it was to continue?”

At this point there was an objection and counsel for plaintiff stated “it was to continue as long as he wanted it to continue.” Based upon this conversation plaintiff claimed $140,000 for salary at the rate of $15,000 a year, and the jury returned a verdict for that amount which would represent loss of earnings for nine and one-third years. It is difficult to perceive how plaintiff arrived at that amount and even more difficult to determine how the jury reached that figure from the evidence presented. Me Quown, on the other hand, testified:

“If any figures involving salary were mentioned that they were purely examples to give future consideration to at a subsequent date, if and when an employment arrangement was discussed with Mr. Tonchen.”

There is distinct confusion as to whether Count I was, or is, based upon fraud or breach of contract. Examination of Count I in the amended complaint discloses no allegation of fraud, and this count sets out strictly an allegation of " breach of contract of employment. No motion was made to conform the pleadings to the'proof. At the conference on instructions, counsel for both plaintiff and defendant variously considered this count as based upon fraud, or based on breach of contract. As a natural result of this, the trial court was confused as to which theory was being presented. Defendant contends in its brief that, “ActuaHy Tonchen is now trying, on Count I, to shift back to the contract theory which he originally pleaded. But Count I was submitted to the jury as a fraud count with Tonchen’s consent.” Plaintiff asserts in his brief, “Although Counts II-IV were predicated on the theory of fraud, Count I was for breach of contract.”

Further confusion is disclosed in the instructions given to the jury. Plaintiffs instruction No. 7 was applicable to aU four counts of the complaint and sets out “the false and fraudulent representations made by the defendants * * * that the foregoing was the proximate cause of injury and damage to him * * *.”

Nothing would be gained by detailing further the confusion in this regard.

We thus arrive at the question in the case before us as to whether or not the parties have in fact joined issues upon facts or theories not aHeged in the amended complaint.

It is an elementary rule of law that the issues in a case are formed by the pleadings and the allegations and the proof must correspond. A party may not prevail where the proof does not follow the allegations, and conversely where the aHegations are not substantiated by any proof. As the court stated in Burke v. Burke (1957), 12 Ill.2d 483 at 487, 147 N.E.2d 373 at 376:

“* * <* a party to a suit, either at law or in equity, cannot have relief under proofs without allegations, nor aHegations without proof in support. Central States Coop., Inc. v. Watson Bros. Trans. Co., 404 Ill. 566; Leitch v. Sanitary District, 386 Ill. 433, 54 N.E.2d 458.”

See also, Gault v. Sideman (1963), 42 Ill.App.2d 96, 191 N.E.2d 436.

There is an exception to this rule and that is where both parties form the issues in the trial, notwithstanding the failure to set the issue out in the pleadings. This was well stated in Hemingway v. Skinner Engineering Co. (1969), 117 Ill.App.2d 452, 463, 254 N.E.2d 133, 138, where we stated:

“Thus, in this case, the parties, irrespective of the pleadings, formed their own issues during trial, and an objection that an issue was not raised in the pleadings, may be waived by the conduct at the trial of the objecting party, or by such party introducing evidence on the issue. Hedrich v. Village of Niles, 112 Ill.App.2d 250 N.E.2d 791 (1969).

In McKinney v. Nathan, 1 Ill.App.2d 536, 117 N.E.2d 886 (1954), at page 543, the court stated:

‘The parties may, by the introduction of evidence or their conduct in the trial, waive formal pleadings or form their own issues on the evidence introduced, and they may voluntarily present under the evidence issues not presented by the pleadings. An objection that a certain matter is not an issue under the pleadings or that it is not denied or properly denied may be waived by a party where he introduces or brings out evi- . dence bearing on the subject, or tries the case as if the matter were not in issue.’
By the testimony offered by the parties and by their conduct at the trial, all deficiencies with reference to any variations between the allegations and the proof were waived.”

In brief summation, Count I of the complaint sets out a breach of contract for employment. The record discloses various and sundry allegations of fraud as a basis for recovery under Count I. Counsel at various times treat this count as a breach of contract and at other times as fraud. If the jury were not confused as to the elements of proof as to Count I, it would be most unusual; the trial court was, counsel were; and it must be admitted that this court cannot determine whether the jury based its verdict as to Count I upon breach of an employment contract or upon fraud. If Count I is based upon fraud alone, this constitutes a promise to do something in the future which, as enunciated above, would not constitute a valid claim for damages.

The cause is reversed and remanded as to Count I and a new trial is granted as to this count only. The issues raised under this count will not be discussed herein as it is hoped they will not arise in a new trial.

Reversed as to Counts II, III and IV.

Reversed and remanded as to Count I.

SEIDENFELD and ABRAHAMSON, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE CRAVEN

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clifford Dickinson, Defendant-Appellant.
    (No. 11879;
    Fourth District —
    August 9, 1973.
    James M. Drake, of Springfield, for appellant.
    Richard A. Hollis, State’s Attorney, of Springfield, and James W. Jerz and Edward N. Morris, of Model District State’s Attorneys Office, of Elgin, for the People.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

The grand jury returned an indictment which charged defendant as having “knowingly possessed a controlled substance, namely secobarbital, in a quantity less than 200 grams”, in violation of Illinois Revised Statutes, 1971, ch. 56%, par. 1402(b). On November 1, 1971, defendant was arraigned and pleaded not guilty. Subsequently, defendant withdrew his plea and entered a plea of guilty pursuant to plea negotiations between defense counsel and the state’s attorney, who stated that the State would take no position upon defendant’s motion for probation. After admonishing defendant under Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402), the trial court entered judgment on the plea. Probation was granted for a period of three years, the first six months were to be spent at the Illinois State Penal Farm at Vandalia.

On appeal, defendant contends that an excessive sentence was imposed; that the state’s attorney violated his agreement to stand mute at the probation hearing; that sentence was imposed for distribution rather than possession of seconal; and that the trial court failed to sufficiently admonish defendant of the consequences of his plea in accordance with Supreme Court Rule 402. The charges arose from an incident occurring behind a Springfield bowling alley on August 27, 1971. Police received a “tip” that drug transactions were taking place in that vicinity and discovered defendant behind a bush. Seconal was discovered in defendant’s possession.

Defendant asserts that the sentence imposed was excessive. Defendant was granted three years probation with the first six months to be served in Vandalia. Under the former provisions of the Criminal Code, probation could be conditioned on serving a period of imprisonment. (Ill. Rev. Stat. 1971, ch. 38, par. 117 — 2(b)(1).) However, the Unified Code of Corrections, which became effective January 1, 1973, specifically prohibits “split” sentences. (Ill. Rev. Stat., ch. 38, par. 1005 — 6—3.) In People v. Lobb, 9 Ill.App.3d 650, 653, 292 N.E.2d 750, this court noted that chapter 38, paragraph 1008 — 2—4 provides that “if the prosecution of an offense has not reached the sentencing stage or ‘a final adjudication, then for purposes of sentencing, the sentences under the Code of Corrections apply if they are less than under the prior law upon which the prosecution was commenced. (See also People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1.) Here, the sentence should comply with the new sentencing provisions; thus, the cause is remanded to the circuit court to modify the order of probation to eliminate the condition of imprisonment. See People v. Haynes, 10 Ill.App.3d 923, 295 N.E.2d 354.

A related issue pertains to the length of the probation period aHowable under the new Code. At the time defendant entered his plea, probation could be granted for a period of not less than six months and. not to exceed 5 years with no distinction being made between a felony and a misdemeanor. For good cause it could also be extended for 2 years (ch. 38, par. 117 — 1). The Unified Code of Corrections specifies that for a felony probation shall not exceed 5 years and that for a misdemeanor it shall not exceed 2 years. (Ill. Rev. Stat., ch. 38, par. 1005— 6 — 2(b).) A violation of paragraph 1402(b) of the Controlled Substances Act is classified as a Class 3 felony under the new Code with penalty provisions set out at paragraph 1005 — 8—1(b)(4). Formerly, the statute provided for imprisonment in a penal institution other than a penitentiary for not more than 1 year or in the penitentiary from 1 to 8 years, and fined not more than $15,000. (Ill. Rev. Stat., 1971, ch. 56½, par. 1402(b).) In People v. Novotny, 41 Ill.2d 401, 244 N.E.2d 182, the court considered the question of whether the offense of aggravated battery constituted a felony or a misdemeanor. At page 403 of the opinion, the court stated that “<t * * the presence of the alternative penalty of imprisonment other than in the penitentiary rendered the offense a misdemeanor.” Thus, defendant was sentenced on a misdemeanor charge. (See also People v. McGreal, 4 Ill.App.3d 312, 278 N.E.2d 504.) Although under the former provisions of the Criminal Code, probation was not defined as a “sentence”, under the Unified Code it is referred to as such (ch. 38, par. 1005 — 6—1(b)). Tlius, in keeping with the opinions in Lobb and Chupich, the probation period here should conform to the Code provisions. The cause is remanded to the trial court to modify sentence in keeping with the Code.

Defendant’s second contention is that the state’s attorney failed to abide by the terms of the plea negotiations and that defendant’s plea should therefore be vacated. Clearly, if defendant’s guilty plea is adduced by an unfulfilled promise by the prosecutor, the plea of guilty is invalid. (People v. Mitchell, 46 Ill.2d 133, 262 N.E.2d 915; Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427.) At the time defendant entered his guilty plea, the state’s attorney stated to the court that he would “stand mute” and take no position whatever on defendant’s motion for probation. At the probation hearing, the state’s attorney extensively cross-examined defendant concerning the circumstances of his arrest. The state’s attorney abided by the terms of his promise not to take a stand on the subject of probation; however, the prosecutor insured that ample information would be available to the trial court on the matter of sentencing. This is not a case in which the state’s attorney fails to abide by his promise to defendant. Furthermore, although the defendant was represented by counsel at all stages of the proceedings, no objection was made to the questioning of the state’s attorney. It is an accepted principle of law that an issue not raised in the trial court cannot be raised for the first time on appeal. People v. McAdrian, 52 Ill.2d 250, 287 N.E.2d 688.

Defendant further contends that the lower court imposed sentence on the sale of a controlled substance rather than on possession of such. Questioning of the defendant during the probation hearing revealed that he had sold seconal to a younger boy. In entering sentence, the trial court stated:

“* * * and as a final condition of probation and because of the probation department’s recommendation and due to the fact that a fifteen-year-old was involved, the defendant shall spend six months in the Penal Farm at Vandalia, * *

Defendant cites this as evidence that the trial court was considering paragraph 1411 of the Controlled Substances Act which allows the court to consider as an aggravating circumstance the manufacture or delivery of controlled substances to persons “3 years or more junior to the person[s] convicted under this Act.” A review of the record does not support the conclusion that the trial court considered improper evidence in sentencing defendant. In People v. Daugherty, 106 Ill.App.2d 250, 245 N.E.2d 7, we discussed the desirability of the sentencing court having the fullest possible information as to the defendant prior to imposing sentence.

Finally, defendant argues that he was not admonished of the minimum sentence in accordance with Supreme Court Rule 402 in that he was not informed of the possibility of probation for first offenders under paragraph 1410 of the Controlled Substances Act. This section provides that the court without entering judgment of conviction may impose probation, the successful completion of which results in the dismissal of the proceedings against defendant. Failure to specifically admonish on this matter does not vitiate the plea under Rule 402. In view of the necessity of remand to the trial court, this issue need not be discussed here.

The cause is remanded to the circuit court of Sangamon County for proceedings consistent with the views expressed in this opinion.

Affirmed and remanded with directions.

TRAPP and SMITH, JJ., concur.


author: Mr. JUSTICE JONES Mr. PRESIDING JUSTICE GEORGE MORAN,

text:
    Patrick T. Deren, By Dale F. Deren, His Mother and Next Friend, Plaintiff-Appellant, v. The City of Carbondale et al., Defendants-Appellees.
    (No. 71-221;
    Fifth District —
    August 7, 1973.

      G. MORAN, P. J., dissenting.
    John E. Norton, of Belleville, (Edward J. Kionka, of counsel,) for appellant.
    J. C. Mitchell and W. A. Armstrong, both of Marion, for appellees.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Plaintiff appeals from the dismissal of his amended complaint for personal injuries. Defendants cross-appeal from a part of the same order. aUowing leave to file the amended complaint and in turn then dismissing it.

Plaintiff’s amended complaint alleges that plaintiff is a student attending Southern IUinois University. In November 1966, as a 19-year-old minor, while in the exercise of ordinary care for his own safety, he was struck and injured by a hit-and-run automobile in the night when- he was a pedestrian on a certain north and south roadway (Wall Street) in the defendant city. “For a long period of time prior thereto” the city had held out this roadway for use by the public; by reason of its location, South Wall was regularly used by a large number of pedestrians, especially persons attending or associated with Southern Illinois University, and that by use, the edge of the roadway had become a pedestrian walkway which the city knew or should have known; by reason thereof a duty arose on the city to maintain said pedestrian walkway in a reasonably safe condition for use by members of the walking public, among which was the plaintiff.

Negligence in seven different particulars was charged: failure to use ordinary care to maintain; failure to provide a separate pedestrian walkway; failure to provide railings, rails, or barriers; failure to warn drivers of pedestrians; failure to warn pedestrians of danger; failure to provide adequate street lighting; and permitting steep embankments to exist adjacent to the roadway, requiring pedestrians to walk in the roadway. The defendants are the city, the mayor, the city manager and the commissioners of public property, streets, and public safety of the City of Carbondale. ...

The cross-appeal must be disallowed since the plaintiff requested leave to amend his complaint within thirty days of the sustaining of a motion to dismiss the original complaint. This preserved the jurisdiction of court beyond the time in which the original dismissal would have become final. The court did not err in exercising its discretion to permit amendment of the complaint under the circumstances revealed here.

The plaintiff’s appeal questions the propriety of the trial court’s dismissal of the plaintiff’s first amended complaint. The essential issue raised by the plaintiff distills to this: Does a city, possessed of knowledge of regular and heavy pedestrian use of a street planned, designed, and built solely for vehicular traffic, have a duty by reason of its knowledge to take reasonable precautions to safeguard such pedestrians from injury by vehicles in the various particulars claimed by the plaintiff?

A number of plaintiffs specific allegations may be eliminated by the terms of the Local Governmental and Governmental Employees Tort Immunity Act. (Ill. Rev. Stat., ch. 85, secs. 1 — 101 et seq.) This statute was enacted in 1965 following a number of statutes and court decisions which had made basic changes in the law governing governmental subdivisions and municipal corporations. It is not necessary here to detail the history of these changes which have been frequently discussed. Suffice it to say that the historical distinction between proprietary and gov¿mmentál functions has been generally abolished as the determining factor in liability of a local governmental entity. This detailed statute covers much of the area of liability and nonliability where persons claim injury and damages at the hands of various public bodies. The validity of'the statute is not challenged in this case by any of the parties.

Part 2 of article II of this enactment deals with the immunity of public employees. Section 2 — 201 relieves a public employee from liability where his position involves the determination of policy or the exercise of discretion. Section 2 — 205 relieves a public employee from liability for an injury caused by his adoption or failure to adopt an enactment or by his failure to enforce any law.

Article III is concerned with immunities from liability for injuries occurring in the use of public property. The claim in this case is based upon the use of public property. Section 3 — 102 places a duty upon the entity to exercise ordinary care in the maintenance of its property,

for the use * * * of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in sufficient time prior to an injury to have taken measures to remedy or protect against such conditions.” (Emphasis supplied.)

The next section of the statute, 3 — 103(a), provides that the entity is not liable,

“* « » for an injury caused by the adoption of a plan or design of a construction of, or an improvement to public property where the plan or design has been approved in advance of the construction or improvement by the legislative body of such entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved. The local pubhc entity is liable, however, if after the execution of such plan or design it appears from its use that it has created a condition that it is not reasonably safe.”

Subsection (b) provides “A pubhc employee is not liable under this Article for an injury caused by the adoption of a plan or design of a construction of, or an improvement to pubhc property.”

The next paragraph provides that the entity and pubhc employees are not hable for injuries caused by the failure to initially provide traffic control devices, signs and road markings.

Section 3 — 108 provides that the entity and pubhc employees are not hable for an injury caused by the failure to supervise an activity on or the use of any pubhc property.

From these statutory provisions, it appears that pubhc employees, which includes all of the defendants here except the city, are exempted from liabilities having to do with the design and construction of improvements to pubhc property. In the particular instance involved, it is obvious, and charged, that the city owned, controlled, maintained and possessed the roadway involved. The individual defendants in their respective municipal offices are charged with having planned and designed the improvement. Since pubhc employees are exempted from liability where a plan or design has been adopted by the legislative body of the local governmental entity, and the condition or improvement having been constructed in accordance with the approved plan and design, no liability is placed upon the pubhc employees. Officers are included in the statutory definition of “employee” (sec. 1 — 202) thus eliminating the liability of the mayor, city manager, and commissioners who are made defendants to this action.

In considering the duty of the city, by reference to this statute and the general law applicable to municipalities, it is manifest that the usual situation arises out of a defect or an obstruction in the pubhc way. Neither is involved here.- Plaintiff s complaint advises us that at a particular location on a north and south street in the general vicinity of a university campus, there was no sidewalk alongside the paved portion of the way, but that members of the public were nevertheless accustomed to walk out upon the paved portion of the roadway. Plaintiffs complaint does not charge that the city took any action to convert a portion of the street to a sidewalk. The liability of the city must, therefore, be viewed from the point of view of its intended use as a street, not as a sidewalk. Under these circumstances all of the negligence charged against the defendant fails since it is wholly predicated upon the street being a “walkway.”

In VanCleef V. City of Chicago, 240 Ill. 318, 88 N.E. 815, where the city permitted the use of its street for a street carnival, the Supreme Court said:

“Undoubtedly, under ordinary circumstances it is the duty of a city to see that its streets are reasonably safe for the uses for which streets are intended, * *

We conclude that the liability of a municipality with respect to its public streets is limited to their use as streets. Undoubtedly, the streets may be used by pedestrians in various ways; they may dismount in the street from vehicles; they may cross them or on occasion they may, where there is no sidewalk, walk upon the street. This, however, does not convert the street to a sidewalk. Illustrative is the statement from Locigno v. City of Chicago, 32 Ill.App.2d 412, 178 N.E.2d 124, “A street does not become a through street because it is used as a through street. It becomes a through street because it is so designated and appropriate signs placed.” The cases reveal instances in which a city by its own action has converted a street to a sidewalk just as they have permitted the use of the street for a street carnival. Where these conversions take place additional duties may arise. We find no Illinois authority which permits the conversion of a street to a sidewalk by continued pedestrian use. Under the circumstances revealed by the evidence, there is no reason why vehicles might not regard the street still as a street, even though pedestrians occasionally walk upon it. This is not to say that motor vehicles may disregard the presence of pedestrians upon the street, but we are here concerned with the liability of the municipality.

We have carefully examined the cases cited by the plaintiff and find no case which goes as far as the plaintiff would have us go. Indeed, two of the cases to which plaintiff refers us contain significant limitations. In Maxey v. City of East St. Louis, 158 Ill.App. 627, it is said at page 630 “The true rule in all cases, we think, is that a city is only required to maintain the respective portions of its streets in reasonably safe condition for the purposes to which they are respectively devoted by the intention and sanction of the city.” (Emphasis supplied.) In Cogdill v. City of Marion, 22 Ill.App.2d 99, 159 N.E.2d 28, this court said “Long established principles of law fix the rights and liabilities of the parties in a case of this sort. A municipality is required to maintain its streets and sidewalks, including parkways, in a reasonably safe condition considering the use to be made of such area.” (Emphasis supplied.)

So far as we have been able to determine from the decided cases, the responsibility of public entities has only been extended to those undertakings which they choose or elect to carry out. We are not prepared to create a general duty upon municipalities for the safeguarding of pedestrians when they are walking upon the public streets. To require a general duty of safeguarding all pedestrians under circumstances beyond that undertaken by the municipality is to stretch the function of city government too far.

A municipality never has been intended under our system as a principal source of social protection. We cannot conceive of a municipality which would be able simultaneously as the need develops to provide the roads, sidewalks, police and fire protection, and every facet of modem municipal service at the most desirable level. We suggest that it is enough that they exercise ordinary care with respect to those undertakings which they have chosen or selected. We are unwilling to delineate the outer limit of municipal liability, but it is sufficient to say that the facts in complainants complaint fall somewhere outside the limits.

The trial court was correct in dismissing plaintiff’s complaint.

Judgment affirmed.

CREES, J., concurs.

Mr. PRESIDING JUSTICE GEORGE MORAN,

dissenting:

The rationale of the majority opinion is based upon its conclusion that the street in question was designed and built solely for vehicular traffic. However, there is no proof in the record it was so restricted by dedication, statute or ordinance. Therefore, the conclusion of the majority is wrong.

“* * * When highways are not restricted by their dedication or statute to some particular mode of use they are open to all suitable methods of travel. A street is made for the passage of persons and property, and the law cannot define what exclusive means of transportation and passage shall be used.” Molway v. City of Chicago, 239 Ill. 486 at 490,

Chapter 85, par. 3 — 103(a) of the Illinois Revised Statutes provides:

“(a) A local public entity is not liable under this Article for an injury caused by the adoption of a plan or design of a construction of, or an improvement to public property where the plan or design has been approved in advance of the construction or improvement by the legislative body of such entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved. The local public entity is liable, however, if after the execution of such plan or design it appears from its use that it has created a condition that it is not reasonably safe."

The facts indicate that the local public entity which in this case is the City of Carbondale has already decided to provide a way for public access or travel. It has decided that the form of that way should be a street, and because no other pathway such as a sidewalk has been installed, it is apparent that the street was to • and did serve pedestrian as well as vehicular traffic. No other conclusion is possible because, without a separate sidewalk, the abutting owners property extends to the edge of the street and any pedestrian travel on that property would constitute trespass. Once it is apparent that the governmental entity has done more than provide a street for vehicular traffic, but has in fact provided a “way” for all traffic including pedestrian traffic, it is an inescapable conclusion that the public entity falls under a duty to exercise ordinary care to design, construct, and maintain that way in a reasonably safe condition for both pedestrian and vehicular traffic. Therefore, while the decision to adopt a plan may be discretionary so that no liability is imposed for failure to adopt a plan, it has been consistently held in Illinois that carrying out a plan, once adopted, is ministerial and requires the exercise of due care commensurate with the likelihood of injury which is reasonably foreseeable. City of Peoria v. Eisler, 62 Ill.App. 26; Resnik v. Michaels, 52 Ill.App.2d 107; Johnston v. City of East Moline, 405 Ill. 460; and Baran v. City of Chicago Heights, 43 Ill.2d 177.

In Baran liability was imposed for the negligent installation and operation of street lights despite defendant’s claim that such installation fell within the discretionary or governmental and thereby immune operation of government. The court reasoned that once a plan of lighting had been implemented, negligence in implementation would provide grounds for liability. Similarly, in the case at bar, once a plan for public travel was implemented, liability may be imposed for the negligent design or maintenance of the travel system. This analysis requires no departure from long established “hornbook” rules. It requires nothing more than refocusing from the phantom question of the duty to install a sidewalk to the actual situation of a negligently designed and installed system for pedestrian and vehicular traffic which leaves the pedestrian no choice whatever but to expose himself to the danger of motor vehicles on the same pathway.

What maintenance steps the governmental entity should undertake to maintain a reasonably safe system of travel is a question for the jury to decide. Whether warning signs would be sufficient or whether painted lanes for pedestrians and vehicles or both signs and painted lanes are needed or whether the use of the way is such that reasonable care requires a separate sidewalk are not questions of law for the courts but rather questions of fact which a jury can most appropriately answer. The duty question, the only question of law for the court, has long been established to be that a municipal corporation has the duty to exercise ordinary care to maintain a public improvement in a reasonably safe condition. The jury question is simply whether the single way for both pedestrians and vehicles fulfills that duty of ordinary care.

There is no question of immunity involved here because the last sentence of par. 3 — 103(a) provides: “The local public entity is liable, however, if after the execution of such plan or design it appears from its use that it has created a condition that is is not reasonably safe.” By the express application of par. 3 — 103 which constitutes Illinois’ scheme of local governmental immunity, the governmental entity which creates a dangerous pathway for pedestrians by requiring their traverse of vehicular ways must be liable for creating a condition that is not reasonably safe. At the very least, this should be a jury question, perhaps subject to evidence in the form of expert testimony about reasonably safe designs for pedestrian and vehicular traffic.

The City in this case can be held liable under par. 3 — 103(a) because the execution of the plan adopted by the City has created a condition that is not reasonably safe.

“» o o A city may reserve portions of a street for pedestrians and portions thereof for the use of vehicles, only, and portions thereof for both pedestrians and vehicles. Sidewalks are usually made for pedestrians only, and street crossings, for both pedestrians and vehicles. Cities are required to use reasonable care to keep street crossings in reasonably safe condition for pedestrians while in the exercise of reasonable care and caution. This is not denied by appellant. The true rule in all cases, we think, is that a city is only required to maintain the respective portions of its streets in reasonably safe condition for the purposes to which they are re-
spectively devoted by the intention and sanction of the city.” Maxey v. City of East St. Louis 158 Ill.App. 627, 629-630.
“a * * The control of the streets of cities was not put into their hands for the purpose that they might plan or order that the streets should be made dangerous or unsafe for the public to travel thereon; nor would such control put into their hands for the purpose that they might plan or order the streets should remain in an unsafe or dangerous condition, if previously dangerous; but such control was given to them for the sole purpose that they should make and keep the streets safe and convenient for the traveling public; and we think it was put into their hands as a mandatory duty, which they have no right or discretion to evade or avoid. * * * Such action would be substantially the same as planning and creating a public nuisance.” Gould v. Topeka, 32 Kans. 485, 4 P. 822.

If pedestrians regularly use a part of the public street with the city’s knowledge, the city has a duty to keep such a street reasonably safe for pedestrians, even though no paved walkway has been actually constructed. For example, in Oklahoma City v. Marshall, 197 Olda. 302, 169 P.2d 1020, in affirming a verdict for a pedestrian injured by an obstruction on an unpaved walkway the court stated:

“It is contended that since the City had not recognized the need for a sidewalk in this area and it was not incumbent upon it to construct or maintain a sidewalk in this locality, the City is not guilty of negligence. We cannot agree with this contention. The evidence discloses that the walkway was much used, and that the City had constructive notice of such use of that part of the street by pedestrians.” 169 P.2d at 1021.

In City of Atchison v. Mayhood, 69 Kan. 672, 77 P. 549, defendant city claimed that by not building a sidewalk, it was not liable for negligence. The court said:

“The position of plaintiff in error could be sustained only by holding that a city could never be liable for injuries received by reason of the condition of the sidewalk area in a public street unless it had undertaken to build and maintain thereon an artificial walk, or otherwise by affirmative action to fit it for use as a foot-way. Such a view conflicts alike with reason and authority. It is justly held that where, for a term of years, there has been a general use by pedestrians of the part of the public street lying outside the improved portion, the city may be deemed to have recognized such use and assumed the responsibility for its being made safe, although no artificial sidewalk has been constructed.” 69 Kan. at 674.

(See also James v. City of Portage, 48 Wis. 677, 5 N.W. 31; Aston v. Newton, 134 Mass. 507, 45 Am.Rep. 347; Davis v. City of Rome, 37 Ga. App. 762, 142 S.E. 171; City of Duncan v. Woods, 194 Okla. 371, 151 P.2d 923; City of Roanoke v. Sartini, 123 Va. 415, 96 S.E. 763; Rush v. City of Globe, 56 Ariz. 530, 109 P.2d 841.) Notice to the city of pedestrians’ use of the street can be actual or constructive; where there are no sidewalks, a city should anticipate the use of the street by pedestrians. Hack v. City of Pittsburg, 145 Kan. 383, P.2d 580.

Illinois decisions have also recognized these rules. In City of Beardstown v. Smith, 150 Ill. 169, 37 N.E. 211, a street was crossed by a “beaten and continuous path” commonly used by pedestrians, although no artificial street crossing had been constructed by the city. The city dug a ditch across this path, into which ditch the plaintiff fell and was injured. In affirming a judgment for the plaintiff, the Supreme Court said:

“We are not prepared to hold that the duty of a city to keep its street crossings in a reasonably safe condition for the use of foot-passengers arises only when it sees fit, in the exercise of its discretion, to construct an artificial crossing over the street. And much less are we disposed to hold that, after a street-crossing has been established, de facto, by public use, the city is at liberty, merely because no artificial crossing has been constructed, to intersect the crossing which the public have established for themselves, with dangerous ditches and pit-falls. We are of the opinion that, under the facts which the evidence in the case tended to establish the duty of the city to keep the crossing in question in a reasonably safe condition and repair for the use of pedestrians had arisen, and that there was no material error in the instructions by which that duty was sought to be declared and enforced.” (Emphasis supplied.) 150 Ill. at 174-175.

In Graham v. City of Rockford, 142 Ill.App. 306, it was held that notice to a city of the dangerous condition of a sidewalk will be implied from lapse of time. Graham was affirmed in 238 Ill. 214, 87 N.E. 361, where the court noted that the city had the same duty to keep the place of the accident, although technicaUy not a street or a sidewalk, in reasonably safe condition co-extensive with the duty towards a street or a sidewalk. The accident had occurred on a plank crosswalk.

The fact that there were no structural defects in the way in question should present no problem because “it is not only structural defects that can create a dangerous condition; it may consist of a condition of property, the use of which in a manner reasonably foreseeable creates a

danger of injury.” (Quelvog v. City of Long Beach, 86 Cal.Rptr. 127.) In State v. Webster, 504 P.2d 1316, the Supreme Court of Nevada said at page 1319:

“In Pardini v. City of Reno, 50 Nev. 392, 401, 263 P. 768, 771 (1928), this court said: ‘(W)here a railing or barrier is reasonably necessary for the security of travelers on the street, which from its nature would otherwise be unsafe, and the erection of which would have prevented the injury, it is actionable negligence not to construct and maintain such railing or barrier.’ The possibility of liability by the city in that case was not predicated on its failure to construct a guardrail in accordance with a plan, but on its failure to construct one at all. The failure of the city to construct a guardrail in both Harrigan v. City of Reno, supra, as the failure of the State in this case to install a cattle guard at the entrance to the controlled-access freeway, came at the operational level, after the discretionary decision had been made. Where a cattle guard is reasonably necessary for the security of the traveling public on a controlled-access freeway, the failure to install it renders the State amenable to suit.”

In Harrigan v. City of Reno, 475 P.2d 94, the Supreme Court of Nevada held that alleged negligent conduct of a city in omitting danger signs and guard rails from the edge of a city parking lot next to a drop-off was part of an operational phase of a parking lot project and was actionable, notwithstanding the statute exempting the city from liability for acts of discretion.

In Mayer v. Housing Authority of Jersey City, 210 A.2d 617, the Supreme Court of New Jersey said at page 619:

“An integral element to be considered in the question of the existence of a duty is the factual determination whether there exists a reasonable foreseeable danger against which the defendant should protect the plaintiff. The test has been said to be whether the reasonably prudent person would recognize and foresee an unreasonable risk or likelihood of harm or danger to others. [Citations.] The negligence may consist in the creation of a situation which involves unreasonable risk because of the expectable action of another.”

That someone would be injured by the chaotic conditions created by the traffic plan put into execution by the City of Carbondale was not only foreseeable, but absolutely predictable. In my opinion the facts alleged in the plaintiff’s complaint stated a cause of action.


author: Mr. PRESIDING JUSTICE BURKE.

text:
    Avis Plumbing & Heating Contractors Corp., Plaintiff-Appellant, v. McCormick Theological Seminary et al., Defendants—(Gerhardt F. Meyne Co., Third-Party Plaintiff-Appellee, v. Fidelity and Deposit Company of Maryland, Third-Party Defendant, Cross-Appellant.)
    (No. 56472;
    First District (1st Division) —
    July 2, 1973.

      Rehearing denied July 30,1973.

    William Henning Rubin, ©f Chicago, pro se.

   Opinion by

Mr. PRESIDING JUSTICE BURKE.

Timothy J. Riordan, of Burchmore, Good & Bobinette, of Chicago, for Gerhardt Meyne Co.

Edward P. McNeela, of Dent, Hampton & McNeela, of Chicago, for Fidelity & Deposit Co.


author: Mr. JUSTICE HALLETT

text:
    Paschen Contractors, Inc. et al., Movant-Appellant, v. John J. Calnan Company, Respondent-Appellee.
    (No. 59054;
    First District (1st Division) —
    July 9, 1973.

      Sonnenschein, Levinson, Carlin, Nath & Rosenthal, of Chicago, for appellant.
    Benjamin I. Coven, of Chicago, (Morris Solomon and Norman Handling, of counsel,) for appellee.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

The movant filed a petition, under par. 2 of the Uniform Arbitration Act (Ill. Rev. Stat. 1971, ch. 10, sec. 102(b)), in the circuit court, seeking a stay of an arbitration proceeding pending between movant and respondent before the American Arbitration Association, on the ground that there is no agreement between movant and respondent to arbitrate any of the items sought by respondents to be arbitrated. The circuit court denied the petition and denied also the movant’s oral motion for a stay pending a ruling by this court on appeal. The movant has now moved in this court for a stay, the matter has been argued orally here and both movant and respondent agree that this court should decide the case on its merits as soon as possible, which we now proceed to do.

The movant is a joint venture consisting of Paschen Contractors, Inc., Gust K. Newberg Construction Company and S. N. Nielsen Company, organized in Illinois for the purpose of constructing certain facilities at Kennedy-King College in Chicago pursuant to a contract with the Illinois Building Authority. The respondent is an Illinois corporation having its principal place of business in Chicago. Movant and respondent on October 9,' 1970, entered into a written subcontract whereby respondent undertook to install the plumbing in said facilities.

On November 13, 1972, after the building had been constructed, respondent filed a demand for arbitration of certain disputes with movant and the arbitration so demanded is pending in Chicago before the American Arbitration Association. On May 2, 1973, the respondent filed an amended demand for arbitration of six items (we are advised that a seventh item, involving retentions, has since been paid and is therefore moot), which we shall set out in more detail later in this opinion.

On May 14, 1973, movant filed in the circuit court a motion for a stay of said arbitration under section 2(b) of the Uniform Arbitration Act (Ill. Rev. Stat. 1971, ch. 10, sec. 102(b)), which provides that:

“(b) On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. That issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.”

In addition to setting out the foregoing, the movant set out the contract involved and the items in dispute and took the position that no agreement exists to arbitrate any of said items.

The trial court denied the petition for a stay and also the movant’s motion for a stay pending this appeal. On appeal, the movant also moves here for a stay pending our decision but we are advised that arbitration has been delayed before the Association pending our ruling.

As to items 1, 2, 3, 4 and 5, movant contends that, although paragraph 39 provides generally for the arbitration of “all disputes arising hereunder,” it excludes items “determined by the architect pursuant to paragraph 21 hereof” which, in turn, incorporates paragraph 35 of the General Conditions, and takes the position that said five items were such as were to be determined by the architect and are thus excluded from the arbitration provision.

As to item 6 (claiming a “fair percentage of the funds received by the respondent herein for special training of minority group employees,” etc.), movant takes the position that this claim is in no way “a dispute arising hereunder” but is a claim outside of the scope of the subcontract and is thus not arbitrable.

There are some four cases to date in Illinois dealing with arbitration under the Uniform Arbitration Act. In School Dist. No. 46 v. Del Bianco (1966), 68 Ill.App.2d 145, 215 N.E.2d 25, written by Mr. Justice Davis, formerly and now again on our Supreme Court, the Appellate Court for the Second District took the view, at page 155, that:

“Where there is an agreement to arbitrate and its scope is reasonably in doubt, the issue of arbitrability should be initially determined by the arbitrators, subject to the protective reservations of section 12 of the Act — under which the court may vacate an award under the varying conditions therein specified.”

In Butler Products Co. v. Unistrut Corp. (7th Cir. 1966), 367 F.2d 733, although it affirmed a holding refusing arbitration, the court, at page 736, said:

“We look with favor upon arbitration as a means of removing contentions from the area of litigation. Hence if the scope of this arbitration agreement were ‘fairly debatable’ or reasonably in doubt’, then its construction should go to the arbitrator. School District No. 46 v. Del Bianco, 68 Ill.App.2d 145, 154, 155, 215 N.E.25, 29, 30 (2d Dist., 1966.)”

In Flood v. Country Mutual Insurance Co. (1968), 41 Ill.2d 91, 242 N.E.2d 149, in holding that, the arbitration clause in an “uninsured motorist’s” policy did not require arbitration of the threshold question of whether the other driver was in fact uninsured, the Supreme Court, through Mr. Justice Kluczynski, at page 94, said:

“Despite the salutory purpose of our Arbitration Act, parties are only bound to arbitrate those issues which by clear language they have agreed to arbitrate; arbitration agreements will not be extended by construction or implication.”

And, finally in Blades, Inc. v. Jarman Memorial Fund, Inc. (1969), 109 Ill.App.2d 224, 248 N.E.2d 289, in affirming a denial of arbitration, the Appellate Court for the Fourth District, at pages 228-229, said:

“It seems to have been the intention of the committee who wrote the Uniform Arbitration Act that the preliminary hearings to compel or to stay arbitration hearings were restricted to a single question and that was ‘Is there an agreement to arbitrate?’ Pirsig, Some Comments on Arbitration Legislation and the Uniform Act, 10 Vanderbilt L Rev 686, 694 (1957). Who answers this question— the court or the arbitrators?
Marhoefer cites School Dist. No. 46 v. Del Bianco, 68 Ill.App.2d 145, 215 NE2d 25, and Layne-Minnesota Co. v. Regents of University of Minnesota, 266 Minn 284, 123 NW2d 371, for the proposition that where the scope of the arbitration agreement is reasonably debatable, the issue of arbitrability should be initially determined by the arbitrators. * * * Neither free-wheeling policy appeals to us nor do we think either policy is within the contemplation of the Uniform Arbitration Act. The issue of whether or not there is any jurisdiction to arbitrate or the limits of that jurisdiction should be determined at the earliest possible moment and should be controlled by judicial guidelines. To be realistically effective,-§ 2(a) and § (b) of the Uniform Arbitration Act, Ill. Rev. Stat. 1967, ch. 10, par. 102, § 2, must apply not only to the existence of an agreement but also to the scope of that agreement.”

While these courts differ somewhat, we are of the opinion that, where the matter is raised, as here, by a motion for a stay, the court should, after a careful reading of the contract, itself decide the controlling question of whether or not the parties have agreed to arbitrate the items on which the respondent seeks arbitration.

Paragraph 39 of said subcontract provides in relevant part that:

“All disputes arising hereunder and not determined by the Architect pursuant to paragraph 21 hereof shall be submitted to arbitration.”

Said paragraph 21 of the subcontract, in pertinent part, provides that:

“Except as otherwise provided in the contract documents or in this subcontract, any dispute arising hereunder and involving a question subject to determination by the Architect pursuant to paragraph 35 of the general conditions shall, upon written request by the Subcontractor, be submitted by the Contractor for decision by the Architect. Subcontractor shall be bound by all decisions of the Architect made pursuant to the authority granted it by said paragraph 35 of the general conditions. # « * Pending final decision on any dispute hereunder, the Subcontractor shall proceed diligently with the work without interruption and strictly in accordance with Contractor’s directions.”

Paragraph 35 of the General Conditions, above referred to, provides as follows:

“35. ARCHITECT/ENGINEERS AUTHORITY
The Architect/Engineer shall give all orders and directions contemplated under this Contract and Specifications relative to the execution of the Work. The Architect/Engineer shall determine the amount, quality, acceptability, and fitness of the several kinds of work and materials which are to be paid for under this Contract and shall decide all questions which may arise in relation to said work and the construction thereof. The Architect/Engineer’s estimates and decisions shall be final and conclusive, except as herein otherwise expressly provided. In case any question shall arise between the parties hereto relative to said Contract or Specifications, the determination or decision of the Architect/ Engineer shall be a condition precedent to the right of the Contractor to receive any money or payment for work under this Contract affected in any manner or to any extent by such question.
The Architect/Engineer shall decide the meaning and intent of any portion of the Specifications and of any Drawings where the same may be found obscure or be in dispute. Any differences or conflicts in regard to their work which may arise between the Contractor under this Contract and other Contractors performing work for the Owner shall be adjusted and determined by the Architect/Engineer.”

Items 1 through 5 of the demand for arbitration, here involved, seek some $195,000 for engineering and draftmans fees necessary to correct the omissions of architectural drawings required to complete the plumbing contract, plus extra labor and materials, including tanks, over 3,000 feet' of pipe, downspouts, waste and vent stacks, branches, etc., not depicted on the original drawings and well in excess of normal job conditions, all of which were required by clarifying drawings forwarded by the architect to the plumbing subcontractor after the bid was made and accepted and all were furnished and accepted on the job.

While paragraph 35 of the General Conditions, above set out, does give the architect the power to pass on the amount, quality, acceptability and fitness of work and materials, to decide the meaning and intent of the specifications and drawings which are obscure or in dispute and to adjust and determine disputes between the contractor and other contractors, it does not in our considered opinion, give the architect the power to pass upon his own errors and omissions, and to require a subcontractor to perform extra work and to furnish materials not encompassed in the architect’s own deficient plans and specifications, all without compensation. To permit this would be an outrageous result not contemplated by the parties, and one not compeHed by the language of the contract.

We therefore hold that items 1 through 5 are not matters to be decided by the architect and are thus not excluded from the general arbitration clause.

Item 6 of the movant’s demand for arbitration, which the movant contends is not arbitrable because it is nowhere mentioned in the contract, is as follows:

“6. AWARD AND PAYMENT from an accounting to the John J. Calnan Co. for a fair percentage of the funds received by the respondent herein for special training of minority group employees and said training program was imposed upon the petitioner, John J. Calnan Co., by respondent, and the above described funds were never disclosed by the respondents to
the petitioner as being available for this special purpose. TOTAL AMOUNT DUE— Unknown"

We agree with movant that this claim is not within the scope of the contract and thus is not arbitrable under the contract.

We therefore reverse the order of the circuit court denying a stay of arbitration insofar only as it applies to item 6, remand the case to the circuit court for the entry of an order permanently staying arbitration as to that item but denying a stay as to items 1, 2, 3, 4 and 5, and in all other respects affirm the order below. We assume that, in view of the suspension of arbitration before the Association, no ruling is required on the movant’s motion here for a stay pending our decision.

Affirmed in part, reversed in part and remanded with directions.

BURKE, P. J., and EGAN, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Clark, Defendant-Appellant.
    (No. 58453;
    First District (5th Division) —
    July 13, 1973.
    James J. Doherty, Public Defender, of Chicago, (Lee T. Hettinger, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis, Mariann Twist, and Nicholas P. Lavarone, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

SULLIVAN, J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dennis Lumpkin, Defendant-Appellant.
    (No. 57615;
    First District (5th Division) —
    July 13, 1973.
    James J. Doherty, Public Defender, of Chicago, (William C. North and John T. Moran, Jr., Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and John C. O’Rourke, Assistant State’s Attorney, of counsel,) for the People.
   PER CURIAM.

LORENZ, J., took no part.


author: Mr. PRESIDING JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Johnnie Walton, Defendant-Appellant.
    (No. 56414;
    First District (3rd Division) —
    July 19, 1973.

      James J. Doherty, Public Defender, of Chicago, (Shelvin Singer, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and James Staruck, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court:

This case involves multiple concurrent sentences of 5 to 15 years imposed on the defendant, Johnnie Walton, after he was found guilty in a non-jury trial of attempt murder and two armed robberies. His single contention in this appeal is that the court erred in sentencing him for the three crimes since they occurred in the same transaction.

Shortly after midnight on September 2, 1970, Walton and two other men entered a tavern on North Kedzie Avenue, Chicago. A stickup was announced and Walton with a pistol in his hand approached Angeline Congiusti who was seated at the bar and took her money. After robbing other patrons at the bar he went into the back room. Stephen Huneniuk, the proprietor of the tavern, had been tending bar that evening but before the defendant and his companions entered he left the bar to take care of two dogs he kept at the rear of the tavern. He stepped outside momentarily and when he returned through the back door he was met by Walton brandishing a gun. Walton said: “This is a stickup. You better have money.” Huneniuk gave the defendant his wallet containing $50 or $60, as well as his watch and diamond ring which Walton demanded. Walton then asked Huneniuk “where the gun was.” Huneniuk said he had no gun but finally gave him a toy one he had nearby. Walton threw it into a sink and told Huneniuk, “You son-of-a bitch, I’ll shoot you.” Then he shot Hunenuik in the face at close range. He and his associates then left the tavern after having been there approximately a half hour. The defendant was apprehended, charged and convicted of the armed robbery of Congiusti and the armed robbery and the attempt murder of Huneniuk.

In People v. Schlenger (1958), 13 Ill.2d 63, 147 N.T.2d 316, the court was presented with the question of the propriety of concurrent sentences where the defendant was convicted of robbery and grand larceny growing out of a single transaction involving one individual and one amount of money. It was determined that concurrent sentences should not have been imposed, and the judgment upon the lesser charge of grand larceny was reversed. Paragraph (m) of section 1 — 7 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 1 — 7(m)) dealt with the problem by providing:

“Consecutive and Concurrent Sentences:
“When a person shall have been convicted of 2 or more offenses which did not result from the same conduct, * * * the court in its discretion may order that the term of imprisonment upon any one of the convictions may commence at the expiration of the term of imprisonment upon any other of the offenses.”

The comments of the drafting committee state that this provision is intended to codify the holding in People v. Schlenger “by the implicit converse of the provision stated, i.e., if the offenses resulted from the same conduct the defendant may not be sentenced on both, either concurrently or consecutively.” S.H.A., ch. 38, ss. 1 — 7, Committee Comments, p. 34, 37.

The legislature has defined conduct as: “an act or a series, of acts, and the accompanying mental state.” (Ill. Rev. Stat. 1969, ch. 38, par. 2 — 4.) It is clear that where the conduct involved is one act constituting more than one crime, sentence is to be imposed only for the greater offense. Thus, in People v. Duszkewycz (1963), 27 Ill.2d 257, 189 N.E.2d 299, the defendant was charged with both rape and incest involving the same victim and arising out of the same act — having intercourse with his daughter. The reviewing court vacated the sentence for incest holding that only the sentence for the greater offense, that of rape, was proper, since two punishments cannot be imposed for a single act even though different elements are involved in the two crimes.

Similarly, in People v. Lerch (1972), 52 Ill.2d 78, 284 N.E.2d 293, an indictment charged the defendant, an inmate in a penitentiary, with attempted escape and aggravated battery of a jailer. The conduct constituting both offenses was found to be identical and only the sentence for the more serious offense, aggravated battery, was permitted to stand. See also: People ex rel Starks v. Frye (1968), 39 Ill.2d 119, 233 N.E,2d 413 (two reckless homicides but only one automobile collision).

However, conduct for which only one sentence is imposed may also involve a series of unlawful acts on the part of the defendant. In People v. Randolph (1972), 4 Ill. App.3d 277, 280 N.E.2d 774, the defendant was charged with both aggravated battery and robbery. This court determined that the beating of the victim occurred as a prelude to the robbery and, .therefore, both offenses arose from the same conduct, permitting the imposition of sentence for only the greater of the offenses. (Cf. People v. Stewart (1970), 45 Ill.2d 310, 259 N.E.2d 24 (aggravated battery and attempt robbery).) In People v. Whittington (1970), 46 Ill.2d 405, 265 N.E.2d 679, the defendant was charged with the offense of escape from the penitentiary and the theft of a vehicle. The vehicle was needed to effectuate the escape. The theft was found not to be separable from the conduct which constituted the offense of escape and only the sentence on the charge of escape was allowed to stand.

In People v. Cox (1972), 53 Ill.2d 101, 291 N.E.2d 1, the defendant was charged in a two-count indictment with having engaged in an act of intercourse and deviate sexual conduct with a child, thus violating the statute prohibiting indecent liberties wth a child. (Ill. Rev. Stat. 1965, ch. 38, par. 11 — 4.) It was held that only a single sentence could be imposed since both acts constituted the offense of indecent liberties and the acts were performed almost simultaneously with one victim.

In contrast to the above cases are those in which more than one offense is committed during a series of closely related acts constituting separate and distinct crimes requiring different elements of proof and permitting separate sentences. (People v. Johnson (1970), 44 Ill.2d 463, 256 N.E.2d 343; People v. Bell (1972), 6 Ill.App.3d 427, 286 N.E.2d 27; People v. Miles (1971), 133 Ill.App.2d 599, 273 N.E.2d 647.) In Johnson, the defendant was charged with burglary and rape. The Supreme Court found that separate sentences were appropriate, for the burglary was completed before the defendant sexually assaulted the victim. In People v. Bell, the defendant was convicted of attempt robbery and attempt murder; although the events were closely related in time, this court found that the attempt robbery had been completed before the defendant fired at the police officer who had come on the scene and, therefore, a separate sentence for attempt murder was warranted.

The robbery of Congiusti and the robbery of Huneniuk were separate and distinct acts. Huneniuk was not even present when the defendant entered the tavern, demanded money and robbed Congiusti and the other patrons at the bar, After he completed robbing the customers at the bar he left that area and walked to the back of the tavern. There, in another room he accosted the proprietor who was unaware that his customers had been robbed, and while displaying his gun demanded and received Huneniuk’s money and other valuables.

Likewise, shooting Huneniuk was a distinct act. Not only were different elements of proof necessary to establish the offense, but the shooting was not a component part of the robbery. It was not done to compel the victim to surrender his possessions for Huneniuk offered no resistance and complied with all the defendant’s orders; he was shot in the face after his money, ring and watch had been taken from him. The defendant was provoked because after demanding a gun, Huneniuk handed him a toy. He threw it into the sink in disgust and sneered,

“You son-of-a-bitch, I’ll shoot you.” Shooting Huneniuk was a separate act and was punishable as such.

The three concurrent sentences were proper and the judgment of the trial court is affirmed.

Affirmed.

McNAMARA and McGLOON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronald Russell, Defendant-Appellant.
    (No. 56615;
    First District (1st Division) —
    July 23, 1973.
    James J. Doherty, Public Defender, of Chicago, (Lee T. Hettinger, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and William K. Hedrick, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

BURKE, P. J., took no part.