text:
    Harry Fortner, Plaintiff-Appellee, v. Thomas McDermott, Jr., Defendant,—(Ralph Wolinski, Defendant-Appellant.)
    (No. 70-168;
    Second District
    August 19, 1971.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, and George F. McNichols, of Wheaton, for appellants.
    William J. Harte and Philip E. Howard, both of Chicago, for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The plaintiff brought this action to recover for personal injuries sustained by him as the result of a three-car intersection collision. Plaintiff was eastbound on North Avenue, a four-lane through street with two lanes eastbound and two lanes westbound, and the defendant, Wolinsld, was westbound on North Avenue in the city of Lombard. Defendant McDermott, age seventeen, was northbound on Grace Street which has a stop sign for Grace Street traffic at its intersection with North Avenue. McDermott proceeded to cross North Avenue in front of both plaintiff and Wolinski. There was a slight impact between the right rear of Mc-Dermott’s car and the right front of Wolinski’s car, after which Wolinski’s car crossed the center lane of North Avenue and struck the plaintiff’s car. A jury in the circuit court of Du Page County returned a verdict in the amount of $230,000 against both defendants, and judgment was entered thereon. After denial of Wolinsld’s post-trial motions, Wolinski alone appeals to this court.

Because the contentions of the appealing defendant involve the manifest weight of the evidence, it is necessary to set forth testimony presented in some detail.

About six o’clock on the morning of August 8, 1967, the plaintiff was driving his car eastbound on North Avenue in Lombard, and was proceeding in the inner eastbound lane. However, he has no recollection of anything which occurred within a block of the intersection of North Avenue and Grace Street. McDermott, when called as an adverse witness by the plaintiff, testified that at the time of the accident he was northbound on Grace Street and on his way from his home to work. As he approached the intersection of Grace Street and North Avenue, he stopped at the stop sign, which was 15 feet south of North Avenue, looked once to his left and right, and then looking straight ahead proceeded into the intersection. He stated that when he looked, the traffic to his left or the eastbound traffic was about a block and a half away but he did not know how far the traffic to his right, the westbound traffic, was from him, although he did see a car approaching. He traveled through the intersection until he felt a bump. At that time his entire car, except for the last couple of feet, had proceeded through the intersection and was north of North Avenue. When he felt this bump, he heard no horn and no noise of brakes, but later heard a big crash. His speed was about 15 miles per hour when the bump occurred, but he did not know he was in an accident until he was stopped later several blocks north of North Avenue and informed that he was in an accident. After returning to the scene of the accident, plaintiffs car was in the eastbound center lane facing east, and the Wolinski car was very close to the plaintiffs car and was facing southwest while being one-half in the eastbound center lane and one-half in the westbound center lane. It was uncontradicted that the only damage to McDermotts car was a broken rear backup light on the right-hand side. Counsel for Wolinski asked no questions of McDermott.

Wolinski, also called as an adverse witness by the plaintiff, testified that the weather and visibility were good; that he was proceeding westbound on North Avenue in the traffic lane nearest the shoulder, which shoulder was wide enough to accommodate a car; and that one block from Grace Street he was going 50 miles an hour. He did not change his speed until the time of the collision. However, he saw the McDermott car two or three car lengths before the Grace Street intersection with North Avenue when it was 5 to 10 feet south of the stop sign, going 40 miles an hour. After he saw the McDermott car, he looked straight ahead. When he next saw the McDermott car, it was “shooting” across North Avenue and seemed to hesitate or slow down at the center lane and then speeded up to 40 miles an hour or better at the point of impact with his car.

Although Wolinski had testified as stated above, later in his testimony he stated that he tried to swerve around the back of McDermott’s car when he saw that car shoot out; that he gradually applied his brakes when he was a couple of car lengths from the McDermott car, slowed down to about 40 miles an hour, and was actually in the inside lane at the time of the impact between his right front fender and the right rear of McDermott’s car. He also stated that at the time of the accident the front end of McDermott’s car was at the north edge of North Avenue, and the rear end was coming past the middle of the two westbound lanes of North Avenue. On cross-examination, when confronted with his sworn deposition taken on a date close to the date of the accident, Wolinski admitted having previously stated that he did not apply his brakes until approximately three or four feet from the point of the impact with the McDermott car, and that his car was entirely in the outside lane at the time of that impact. The deposition also revealed that, when he first saw the McDermott car in the intersection, it was blocking the inside eastbound lane; that Wolinski was traveling 55 miles an hour when he first saw the McDermott car 40 feet away from the intersection; that he saw the McDermott car travel 30 feet before the impact; and that when he applied his brakes he was in the middle of the intersection. Wolinski also testified that after he collided with the McDermott car, he did not remember what happened. On deposition, however, after having stated that he was in the outside lane at the time of the accident, he said he thought he was in the lane he had been traveling in but did not know and he “couldn’t get control” of his car. Counsel for Wolinski asked no questions of him, although there was a marked difference between his testimony and his deposition. The jury was presented with the question of the impeachment of Wolinski by his deposition.

Defendant Wolinski called Robert Hall as a witness. He testified that he was traveling eastbound on North Avenue in the outside lane and alongside of plaintiff’s car, which was in the eastbound inner lane; that he saw McDermott’s car about 50 feet from the intersection, and that although McDermott slowed a little bit as he approached the intersection, he did not stop but continued through the intersection. He further testified that McDermott’s car was going 10 miles an hour when it passed the stop sign, speeded up to 15 miles an hour as it entered North Avenue, and when it got to the eastbound lane on the north side, a westbound car collided with it. McDermott’s car was 50 feet from the intersection when the Wolinski car was 200 feet from the intersection. When McDermott’s car passed in front of Hall, he was 100 to 150 feet away, but the Wolinski car was a little closer to the McDermott car. The collision between Wolinski and McDermott occurred at about the dividing fine of the two westbound lanes on North Avenue. The Wolinski car bounced off the McDermott car, and proceeded west across the center line into plaintiff’s car at a point of impact which was 50 to 75 feet from the prior collision. On cross-examination, Hall testified that the first collision was rather slight and that at the time of that impact the Wolinski car remained in the lane next to the north edge of North Avenue. After the collision between plaintiff and Wolinski, the plaintiff’s car was 25 feet west of the intersection, straddling the two eastbound lanes, and the Wolinski car was across the center line, half in the westbound lane and half in the eastbound lane, facing in a southwest direction. He further stated that the Wolinski car was 200 feet east of the intersection when the McDermott car started to enter North Avenue and that he, Hall, observing the developing situation, took evasive action, and pulled off of North Avenue on his right-hand shoulder. He also testified that the Wolinski car slowed down 25 to 50 feet prior to the impact and reduced speed about 10 miles an hour from the 55 miles an hour it had been traveling. When confronted with his deposition taken nine days after the accident, Hall acknowledged that in his deposition he stated he could not estimate the speed of the Wolinski car prior to the accident other than to state it was moving at a fairly rapid speed; that he could not tell whether Wolinski took evasive action; and did not know if Wolinski changed the speed of his car prior to the accident. He had also stated on deposition that the impact between McDermott and Wolinski occurred five to six feet from the north edge of North Avenue.

A deputy sheriff, James Baker, who investigated the accident, was called as a witness by Wolinski. When Baker arrived at the scene of the accident, the plaintiff’s car and Wolinski’s car were in the inner eastbound lane. He said he found a small amount of debris in the inner westbound lane and 75 to 100 feet away he found debris where the Wolinski and plaintiff’s cars were located after impact. Baker stated that he had determined the points of impact from the debris and, therefore, had determined that the first impact occurred in the inner westbound lane because of the debris in that lane. Cross-examination revealed that his report of the accident indicated the first impact occurred in the outer westbound lane and there was nothing in the report about location of debris in the westbound inside lane. Prior to testifying, Baker stated he had a conference with the attorney for Wolinski with reference to the point of the impact of the first accident.

Defendant Wolinski contends that the verdict is contrary to the manifest weight of the evidence and states that since he was on a preferential highway, for which McDermott was required to stop, he had the right to assume that McDermott would stop and that, therefore, there was no duty imposed upon him until McDermott entered the intersection. He states that once McDermott had entered the intersection, he slowed down and swerved and, therefore, did everything that could possibly be done to avoid the collision with McDermott. However, we are confronted with a situation of whether Wolinski and his witness, Hall, were effectively impeached in the minds of the jurors by statements made on their depositions which contradicted their testimony during trial. The jury, under the circumstances here present, could very well have considered that portions of both Wolinski’s and Hall’s testimony were not credible in light of then previous statements in their depositions.

There is no question but what the collision between McDermott and Wolinski was slight and that the damage to the McDermott car was very little. In light of Wolinski’s testimony that McDermott was going 40 miles an hour when he was 5 to 10 feet south of the stop sign, it would seem unlikely that Wolinski could expect McDermott to stop at the stop sign, although he states he has a right to assume that McDermott would stop. Also, it was certainly a question for the jury as to what Wolinski did upon seeing the McDermott car shooting across the intersection, where or when he applied his brakes, and whether he reduced his speed and changed lanes prior to the accident with McDermott. Wolinski did testify that he could not get control of his car at the time of the accident with McDermott. In Sughero v. Jewel Tea Co., 37 Ill.2d 240, the plaintiff sought damages for personal injuries when his car collided with defendant’s tractor unit operated by a Mr. Perrino. Perrino was proceeding in an opposite direction from the plaintiff when he skidded into plaintiff’s lane of traffic. The court directed a verdict for the plaintiff on the issue of liability. In that case, the Supreme Court said in affirming the Appellate Court:

“A reading of the appellate court opinion shows that it did not hold skidding in and of itself constituted negligence. The rationale applied by the court was that after plaintiff had shown defendants’ vehicle was on the wrong side of the highway and out of control, Perrino had the duty of showing it was there for some reason other than his own negligence.”

Courts of review usually will not disturb a verdict of the jury as the jury is in a better position to determine the credibility of the witnesses and the proper weight to be given their testimony. (Allen v. Yancy, 57 Ill.App.2d 50, 55.) We cannot say that a conclusion opposite to that reached by the jury is required by the evidence or that the jury verdict is palpably erroneous and wholly unwarranted by the manifest weight of the evidence.

Defendant Wolinski also contends that he was prejudiced by improper argument of plaintiff’s counsel and that those arguments constituted reversible error. Plaintiff’s counsel, in his closing argument, stated:

“You may have noticed that when Dr. Markin and some of the other doctors were testifying — and right now when I have to discuss this problem I don’t have Harry Fortner in the courtroom, because I don’t want Harry to hear some of this.
“But I don’t want you to think that he doesn’t have an interest in what is going on here. I told him to wait out there.”

Defendant Wolinski states that this is the same argument made in Lange v. Coca-Cola Bottling Co. of Chicago, 105 Ill.App.2d 99, and which was there held to constitute reversible error. In Lange, a Dr. Atlas, while testifying for the plaintiff as to the injury sustained by plaintiff, stated that he was reluctant to give an opinion as to the prognosis with the plaintiff’s wife in the courtroom. Thereupon, the plaintiffs attorney asked the wife of the plaintiff to step out of the courtroom and she left the courtroom. The doctor then testified that the prognosis was extremely bad and that he estimated that the plaintiff’s life expectancy was short and would be less than two or three years. Defendant’s counsel made a motion to strike the answer as being based upon conjecture, and the answer was stricken. The court said in regard to the argument of plaintiff’s counsel:

“He began his argument by saying:
‘But in any event you may wonder where are the Langes at in a crucial stage in this case, and the answer to that is this — I don’t have eyes watering in my nerves. Dr. Atlas preferred to have Mr. & Mrs. Lange out of the courtroom. So do I prefer to have these people not to be here this morning. So I took the liberty of caHing the Langes last night and told them something unexpected came up that the court wouldn’t start until about 2:30 this afternoon. So they would have plenty of time to hop on that 1:05 train.’
This argument was unwarranted particularly in view of the fact that the Doctor’s estimated statement that plaintiffs life expectancy was short, less than two or three years, was stricken and was not in evidence. This statement could only be made to appeal to the sympathy of the jury and create passion and prejudice against the defendant.”

The remarks of counsel, in our case, as to why the plaintiff was not in the courtroom was made by plaintiffs counsel, according to him, simply to assure the jury that the plaintiff had not lost interest in the case by his absence. In any event, there was no dramatic removal of the plaintiff from the courtroom in the presence of the jury as there was of the plaintiff’s wife in the Lange case. In our case, the fact that plaintiff was not present in the courtroom certainly was apparent to everyone. There was no objection to his absence during the trial or objection to plaintiff’s argument to the jury. Three doctors had testified as to the many injuries received by the plaintiff. The injuries were severe, and the issue of personal injuries was not a close question as it was in the Lange case. No medical testimony was offered by either of the defendants nor was the extent of the injuries disputed by their counsel in thenar guments to the jury. We do not conclude by the above statement made by counsel for the plaintiff and his argument to the jury were for the purpose of appealing to the sympathy of the jury and creating passion and prejudice against the defendant. Wolinski. Counsel for the plaintiff did not state why he did not want the plaintiff to hear his final argument. It is apparent, however, that the plaintiff knew of the extent of his injuries and the jury also heard evidence as to the injuries.

Wolinski also contends that the following argument of plaintiffs counsel was prejudicial and constituted reversible error:

“If your back is bad, if you have a bad day and it is not just the back, it is your whole day, your outlook on life and everything else is just miserable. It affects your whole life. It can’t be limited.
If you can understand and appreciate what I am talking about — you have to consider the whole and how these injuries and the terrible pain this man has and will have in the future is going to affect his whole life and affect his outlook on life.
We could go out and get some hobo and we could say to him — he might not have any job or occupation or any money or any family or anything else and say to him, ‘Look. I have got a proposition to put to you. I am going to make a contract with you that for the next 30 years I will give you $2,000 a year, and you don’t have to do anything. Not at thing.’
Well, the hobo would be intrigued by that proposition and say, ‘That sounds pretty good.’
‘All you have to do is just get in his body and endure this pain for $2,000 a year. I will pay you for this pain.’
Now, I would suggest that whether that is adequate compensation, I don’t know. I would suggest that $2,000 a year for the pain that he has and will undergo in the future is fair; $60,000 for the pain and suffering that he has and will have in the future.”

It is said that argument caused the jury to identify with the plaintiff and thus makes subjective deliberations rather than objective deliberations to which the parties are entitled. In other words, it is said that the argument improperly asked the jury to put itself in the position of the plaintiff and, therefore, created reversible error. (Brant v. Wabash Railroad Co., 31 Ill.App.2d 337.) In Brant, the court did hold that it was not proper to have the jury put itself in the position of the plaintiff. The court reversed the judgment for the plaintiff and remanded the case to the trial court for a new trial because of the cumulative effect of the remarks of plaintiff’s attorney in closing argument, and said at p. 340:

“While we are reluctant to reverse on the basis of argument of coun-
sel, and are conscious of the fact that the greatest latitude should be permitted to an attorney in closing argument, within the discretion of the Trial Court (Walsh v. Chicago Rys. Co., 303 Ill. 339, 135 NE 709), it is apparent that the type of argument, considered as a whole, made in the instant case goes beyond the latitude which should normally be given to counsel under such circumstances (Goad v. Grissom, 324 Ill.App. 123, 57 NE2d 514).” Emphasis added.

In Copeland v. Johnson, 63 Ill.App.2d 361, 367, this court, in holding that the parties received a fair trial, stated:

“It is error for a plaintiffs’ counsel to ask a jury to put itself in the position of a plaintiff, Thomas v. Illinois Power & Light Corp., 247 Ill. App. 378 (1928); Brant v. Wabash R. Co., 31 Ill. App. 2d 337, 176 NE2d 13 (1961). It is just as erroneous for a defense counsel to ask the jurors to place themselves in the position of a defendant. Had an objection been made, the court should have sustained the objection and instructed the jury to disregard the erroneous comments. However, no objection was made and we feel that the error was waived.”
Page 368:
“Able counsel may prefer to permit slight error or informality of procedure or argument by opposing counsel to take place without objection in order to take advantage of it in his own argument. Having done so he may not later complain of the- permitted error ‘for the reason that an objection and the ensuing colloquy could serve only to emphasize the prejudice caused by the remarks’ as stated in his briefs.”

The counsel for the defendant, Wolinski, did not object to any part of the final argument of plaintiff’s attorney. The final argument to the jury on behalf of Wolinski contains the following statement:

“I don’t think that is inconceivable, and I ask you to consider your own experience, if you have ever driven by any of the shopping centers on Roosevelt Road or anywhere else and cars have pulled out in front of you.
“Suppose you tipped one of those cars and another car went another way. Are you at fault because someone said you should have been looking at that car all the while and you shouldn’t observe any other traffic?”

Thus it appears that this case is similar to the Copeland case, and as to the point of law presently involved, the same conclusion must result here.

It is argued also by the defendant, Wolinski, that the plaintiff’s argument to the jury hereinabove set forth, and mentioning “hobo” and certain amounts for pain and suffering, suggest a formula for determining the amount of money for pain and suffering, although the use of such a formula in closing argument was held improper in Caley v. Manicke, 24 Ill.2d 390.

In Warp v. Whitmore, 123 Ill.App.2d 157, the court, in affirming judgments for the plaintiffs, said, p. 164:

“We are in agreement with defendant’s position that arguments, which attempt to place before the jury a mathematical formula for arriving at damages for future pain and suffering based upon fixed units of time, are improper, (Caley v. Manicke, 24 Ill.2d 390, 182 NE2d 206; Jensen v. Elgin, J. & E. Ry. Co., 24 Ill.2d 383, 182 NE2d 211) but we are not here confronted with an argument of the nature as those in the cases cited by defendant.
“After arguing that one of the plaintiffs should be awarded a specific amount of damages for costs expended, lost work time, past pain and suffering, etc., her counsel suggested that she be allowed for future pain and suffering the sum of $100 per year for the number of years of her life expectancy. In making this argument, counsel carefully noted that the sums stated by him were only his suggestions, which could be high or low depending on what the jury determined to be just compensation.
“Secondly, no objection was made by the defendant at the time the argument was made to the jury. Finally, counsel for the plaintiff did not, as was the situation in the cases cited by the defendant, challenge defense counsel to offer a better ‘scheme’ for arriving at damages.”

It is true that the plaintiff’s attorney in final argument mentioned a figure of $2,000 a year for pain but it also is time that he said, “Now, I would suggest that whether that is adequate compensation, I don’t know.” It, therefore, appears that since no objection was made to the argument being discussed, and the argument contained only his suggestions together with his comment that he did not know whether his monetary suggestion was adequate or not, the decision in this case is controlled by the decision in the Warp case. Therefore, we find no reversible error in this regard.

Wolinski next argues that the jury verdict of $230,000 is excessive. He complains that the verdict is six times plaintiff’s expenses, including estimated future expenses, but admits that there is no precise rule for fixing an award of damages in a personal injury action. He states that the excessive award was the result of passion and prejudice created by the improper argument by plaintiff’s attorney and, therefore, must be set aside (Swearinger v. Klinger, 91 Ill.App.2d 251, 256). Wolinski states that plaintiff’s lost income was $9,530; medical expenses, $5,666; estimated future medical expenses, $4,000; estimated future lost time, $15,000; and the suggested figure of $60,000 for pain and suffering, making a total of $94,196. He calculates that the jury’s verdict left $135,804 to compensate for disability and disfigurement, as they are the only items not included in the total of $94,196. His conclusion is, therefore, not only that the award was the result of passion and prejudice created by improper argument of plaintiff’s attorney but also exceeded fair and reasonable compensation. In Lau v. West Towns Bus Co., 16 Ill.2d 442, the court said, p. 453:

“* # * Each verdict for a personal injury must be examined in the light of the particular injury involved, with humble deference to the discretion of the jury in making its determination and to the ruling of the trial judge on the post-trial motions.”
In Barango v. Hedstrom Coal Co., 12 Ill.App.2d 118, the court said:
“There is nothing in the record to indicate passion or prejudice on the part of the jury. The question before us is as to whether or not the total amount of the verdict falls within the necessarily flexible limits of fair and reasonable compensation or is so large as to shock the judicial conscience.”

It must be noted that the evidence on the issue of damages was uncontradicted. Defendant Wolinski did not present any medical evidence and his counsel did not cross-examine as to the injuries as testified to by the doctors. Counsel for the plaintiff in final argument did suggest as fair compensation that the jury award the plaintiff “for the damages that he suffered: $229,196.” Such a suggestion is proper. Caley v. Manicke, supra. In final argument, with reference to injuries, Wolinski’s counsel stated:

° * I don’t know how I can say any more but that I am very sorry that he has them, and will have them. You heard the doctors, the same as I did and probably have the same feelings I do about things. So you can imagine.”

We will not go into the testimony of the doctors in detail. Dr. Markin testified that the plaintiff had a fracture at the base of the skull which also caused a leakage of clear fluid from the ear; that the X-rays revealed three rib fractures, some displacement of the ribs, and involvement of nerves in the chest area causing plaintiff pain. Dr. Huncke testified as to substantial limitation of motion in the right shoulder of the plaintiff; a fracture of the head of the right humerus; fracture to the hip and disclocation and requirement of future surgical procedures because of the dislocation; limitation of motion of the hip; thigh atrophy; and probable necessary surgery in the form of a hip fusion or the insertion of an Austin Moore prosthesis, which would require approximately $4,500 in medical expense and the loss of one year’s employment. He also testified as to the future debilitating condition even if the fusion or prosthesis were successful. Dr. Huncke further testified as to the right foot and ankle— that there were severe fractures and osteomyelitis. He recommended future surgery because of the pain which continues in the foot and ankle, but stated that any further surgery would be complicated by the osteomyelitis and that such complication could result in amputation of the foot. Even without surgery, the osteomyelitis could lead to amputation. Reconstructive surgery of the foot and ankle would have to wait for two and one-half years for quiescence of the osteomyelitis. Dr. Pokornowski testified that because of the trauma involved in the accident, the plaintiff suffered an extensive and acute anterior wall myocardial infarction of the heart; and permanent damage to the heart, reducing plaintiff’s capacities for maximum cardiac output. The doctor also stated that he would have more likelihood of suffering a second heart attack and a lesser chance of surviving it.

Plaintiff was 43 years old at the time of the accident and in good health. Aside from the testimony of the various doctors, plaintiff stated that he was off to work for seven months because of the accident and then returned to work involving lighter tasks, but was still using a cane when he returned to work and up until the spring of 1969. He testified as to the persistent pain in the right upper part of his chest and in the area of the various fractures. He said there is no motion in his right foot; that it is painful for him to walk; and that he walks slowly, with a limp. He goes up and down stairs sideways, one step at a time, and has difficulty sleeping because of the pain. There is a continual draining from the wound (osteomyelitis) in his foot which requires treatment every evening. It is noted that the jury was instructed that neither sympathy nor prejudice should influence it, and that the verdict must be based on evidence and not upon speculation, guess or conjecture. It appears that, although Wolinski complains of a substantial amount being allowed by the jury for disability and disfigurement as well as for pain, those items are serious and substantial.

Having read the entire record, we conclude that the award was not the result of passion and prejudice created by improper argument of plaintiff’s attorney or the co-defendant’s attorney; that the verdict is not excessive in light of the particular injuries involved; and that the amount of the verdict is not so large as to shock the judicial conscience. We believe the total amount of the verdict falls within the limits of fair and reasonable compensation for the injuries as described by the doctors and the plaintiff.

Finally, it is contended that the trial court erred in not allowing further discovery on the issue of possible collusion between the plaintiff and co-defendant McDermott. After verdict and judgment, and denial of Wolinski s post-trial motion, new counsel entered the case for Wolinski and filed a petition to vacate the denial of the post-Mai motion. He also requested leave to amend the post-Mai motion by adding the charge of collusion between plaintiff and co-defendant McDermott. The petition to vacate the order denying the post-Mai motion, to amend the post-trial motion, and for leave to take various depositions states upon affidavit of the new attorney for Wolinski that he has information which tends to indicate that a settlement between the plaintiff and co-defendant Mc-Dermott was reached prior to judgment; that such a settlement agreement was prejudicial to the rights of the defendant, Wolinski, in that it created moot issues of liability and damages as to the co-defendant, McDermott; that after such a settlement, co-defendant McDermott had no standing before the court and arguments made in behalf of defendant McDermott were for the sole purpose of incriminating defendant Wolinski. The amendment sought to the post-Mai motion of Wolinski stated that prior to final argument, an agreement existed between the plaintiff’s attorney and the attorney for the co-defendant, McDermott, which insulated that defendant against a verdict in excess of $50,000; that the argument on the part of McDermott’s attorney was for the purpose of incriminating defendant Wolinski and increasing the amount of the award to plaintiff, all of which was to the prejudice of defendant Wolinski and a fraud upon the court. Wolinski points out that counsel for McDermott in his final argument stated that the plaintiff was horribly injured and that he would not take a “million dollars’’ for his injuries; that State Farm Mutual, insurer of McDermott, tendered a draft to plaintiff’s attorney of $50,000, the policy limits, after the Mai. It is noted that neither McDermott nor State Farm Mutual seek to appeal the Mai court judgment.

Plaintiff states that he was not aware of the mental processes for the attorney for McDermott, and is not responsible for the alleged tactics employed by McDermott’s attorney. It is clear that both McDermott’s attorney and the attorney for the plaintiff deny any collusion or agreement such as alleged by Wolinski. McDermott’s attorney made it known to Wolinski and his attorney that he was going “to hold Wolinski in as a codefendant.” McDermott’s attorney states that he had concluded that McDermott at least was contributorily negligent, and because of the extent of the injuries it was advisable to attempt to hold Wolinski in the case also to attempt to cut down a judgment in excess of State Farm Mutual’s insurance limits. It appears that prior to the verdict, State Farm Mutual on McDermott’s behalf had offered $42,500 but that Wolinski’s insurance company never offered over $1000. The attorney for the plaintiff had made it clear that he would not settle the case for less than both policy limits. State Farm Mutual, therefore, had concluded that the case could not be settled even if it offered its entire policy limits because of the unreasonable attitude of Wolinski's insurer. Counsel for Mc-Dermott explained his remark to the jury about his not taking a million dollars for plaintiff's injuries by stating that he felt that if he were not completely open and above board with the jury and did not give them his own personal feelings honestly, they would “clobber me.”

Depositions were taken of State Farm Mutual’s representative, Brian Gardner, and the State Farm Mutual file was produced along with depositions.

The judge made an “in camera” inspection of the State Farm Mutual entire file which apparently was approximately four inches thick. The judgment concluded, after oral arguments by the attorneys and after examining the depositions and the State Farm Mutual file, that there was nothing to arouse suspicion that an agreement existed between the plaintiffs attorney and the attorney for McDermott. Therefore, the judge denied the post-trial motions and the motion for further discovery, and concluded that there was no fraud or collusion.

Having examined the record carefully for evidence of collusion, we conclude that the trial judge properly decided that there was no collusion between plaintiff and McDermott or their attorneys, and properly denied further discovery.

The judgment of the circuit court of Du Page County is affirmed.

Judgment affirmed.

SEIDENFELD and GUILD, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SEIDENFELD

license: Public Domain

text:
    In re Estate of Arthur Adam Long, Deceased, et al., Petitioners-Appellants.
    (No. 70-282;
    Second District
    September 7, 1971.

      William B. Petty, of Mt. Carroll, for appellants.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Loree Drane and Blanche Fieldstad appeal from an order denying their petition to remove Ray Long as executor of their father’s estate. The principal asset of the estate is an 80 acre farm which was devised under the will, in equal shares, to petitioners, the executor, and their brothers, Verle Long, LeVerne Long and Kenneth Long. The petitioners charge the executor with waste and mismanagement in the sale of the farm.

The charge of mismanagement, essentially, is based upon the fact that the devisee Verle Long had offered to purchase the property for $600 an acre, whereas, the sale was thereafter made to another for $475 an acre. However, Verle Long’s offer was conditioned upon the cancellation of obligations for money borrowed from the decedent over many years and the cancellation of rent due for farm occupancy for the year 1969, (except that Verle Long would pay the taxes for that year). Petitioners argue that several of the obligations were barred by the statute of limitations and that Verle Long, in his testimony, remarked that decedent intended to forgive all of the debts in exchange for work done by him on the farm in decedents lifetime. The hearings, however, did not present a forum in which these items could be litigated. In any event, under the circumstances present when the sale was made under a general power in the will, the executor was justified in considering that the offer made by Verle Long would not be to the advantage of the estate in total view.

In their further argument that the sale made by the executor evidenced mismanagement of the estate, the petitioners have noted that the sale was made without an appraisal and that they offered the testimony of a witness with some familiarity with farm property, who was of the opinion that the farm was worth “in the area of” $600 per acre. The executor testified that, although he had first rejected an offer of $500 per acre because he thought at that time he could get more, he thereafter advertised the property in three prominent papers in the area at different times and continued to solicit the neighbors for the best price he could get. We agree that the property was thus thoroughly appraised in the market place and that the circumstances of the sale, in which a broker’s commission was saved, were satisfactorily explained. In addition, LeVerne Long testified that he knew of the pending sale and approved of it. Kenneth Long also testified that he approved of the sale. We note also that the sale was made to a stranger and that both the executor, and the other beneficiaries who approved of the sale, had a common interest with the petitioners in securing the highest price available.

Letters testamentary may be revoked only under one or more of the grounds set forth in the statute. (Ill. Rev. Stat. 1969, ch. 3, par. 276: “(a)(4) wastes or mismanages the estate * * *.”) The executor may not be removed for errors of judgment in the management of the estate unless they amount to malfeasance. (In re Estate of Breault (1963), 29 Ill.2d 165, 180; In re Estate of Kuhn (1967), 87 Ill.App.2d 411, 416.) We agree with the conclusion reached by the trial court that the record did not show that the executor wasted or mismanaged the estate so as to render him unsuitable or incapable to act.

The judgment below is affirmed.

Judgment affirmed.

MORAN, P. J., and SEARS, J., concur.

       The rent amounted to $3168. In addition, the estate inventoried obligations of Verle Long:
      Uncashed check dated June 15, 1955 — $700,
      Promissory note dated June 1, 1956 — in the face amount of $1300 which with interest totaled $2028,
      Promissory note dated March 31, 1958 — in the face amount of $850 which with interest totaled $1258,
      Promissory note dated September 1, 1962 — in the face amount of $6846.53 which with interest totaled $9442.53.


author: Mr. JUSTICE SEIDENFELD.

text:
    Ed Keim Builders, Inc., Plaintiff-Appellee, v. Bernice Webb, Defendant-Appellant.
    (No. 70-271;
    Second District
    October 5, 1971.
    Carbary, Carbary & Chapski, of Elgin, for appellant.
    Donovan, Dichtl, Atten, Mountcastle & Roberts, of Wheaton, for appellee.
   Opinion by

Mr. JUSTICE SEIDENFELD.


author: Mr. JUSTICE THOMAS J. MORAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Reno Carmen Young, Defendant-Appellant.
    (No. 70-275;
    Second District
    October 5, 1971.
    E. Roger Horsky, of Defender Project, of Elgin, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, for appellee.
   Opinion by

Mr. JUSTICE THOMAS J. MORAN.


text:
    American National Bank and Trust Company of Chicago, et al., Plaintiff-Appellee, v. Village of Winfield, Defendant-Appellant.
    (No. 70-283;
    Second District
    October 5, 1971.
    Hinshaw, Culbertson, Moelman, Hoban & Fuller, of Wheaton, for appellant.
    Melvin M. Landau, and Walter Bard Carroll, of Chicago, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The Village of Winfield appeals from a decree which declared a single family zoning ordinance invalid as to plaintiff’s property and permitted a proposed multi-family use.

The rectangularly shaped, 32 acre tract is presently vacant. It is bounded on the north by a DuPage County Forest Preserve; on the east by the west branch of the DuPage River, across which there is a shopping center and beyond that the Central DuPage Hospital which occupies approximately 40 acres. It is bounded on the west by a vacant tract now owned by the West Chicago High School District, and on the south by Winfield High Lake Road, with the tracks of the Chicago North Western Railroad — elevated some 8 to 10 feet — immediately south of that road.

A large portion of the subject property is low land bordering the river. There was testimony that 70% of the site was within the flood plain of the 1954 flood of record.

There was evidence that the cost of providing fill to develop the property for single family residential purposes would run from an economically feasible $4192 an acre if hauled within a half mile from the site, to as high as an uneconomic $12,577 an acre if from a greater distance. There was evidence that if the property were developed as an apartment complex, it could be designed so no dirt would have to be hauled.

The value of the property as presently zoned was testified to be $6000 an acre compared to $33,000 an acre if rezoned for multiple family with a density of 22 units per acre.

Plaintiff’s witnesses testified that the highest and best use of the property was for the proposed multi-unit development. There was no testimony by any witnesses that the planned development would have any deleterious effect on surrounding property in the area.

The principal issue raised by the Village relates to the management of water resources and the general effect on the public welfare when building on the flood plain. The argument of the defendant that the proposed use would be adverse to the public interest in preserving the flood plain and water recharge area is based principally upon the testimony of Dr. John R. Sheaffer, a recognized expert on water resource problems. Dr. Sheaffer testified that the tract was a prime natural recharge area, not only for Winfield but for much of central and western DuPage County. The thrust of this testimony was that the public welfare demanded a minimum distortion of a natural condition in order to preserve the storage capacity and water recharge function of the subject acreage; that, preferably, it should be left in an open state and devoted to some type of recreational or park use; and if developed at all, it should be developed for single family use by raising the homes on stilts or by fill over the flood stage, since conservative development for single family residences would be as disastrous to the flood plain as an apartment project. It was his opinion that the proposed artificially created reservoir lake could not effectively serve the flood control function that the area in its natural states serves because this would merely expose the subsurface water which is already present and nearly always at saturation level and would not control additional rainfall or flood water. Dr. Sheaffer could not disagree with the testimony of the plaintiff’s architect that single family homes would result in substantially the same amount of impermeable coverage as the proposed apartment complex.

Dr. George H. Otto, a consulting geologist and soil conservationist, also a recognized expert, testified for the plaintiff with a different view. In his opinion, the flood plain area could be preserved and the recharge area to a large extent preserved by the proposed creation of a lake and the proper direction of water drainage from roofs and parking areas. In his opinion, less than 1% of the percolation in the flood plain of the west branch of the DuPage River is affected by the premises in question. He testified that a design to protect the ground water could be economically used for the apartment project but could not economically be available for single family residence development on the tract. In his opinion a single family residential development could not be designed to maintain the same amount of water percolation, as would be maintained with an apartment complex of the type in question.

The trial court noted that Dr. Sheaffer’s testimony regarding single family development of the subject property involved some highly impractical considerations and was not corroborated by any witnesses or experts from the standpoint of building, land appraisal or land planning. In our view, the court properly assessed the legal effects of the testimony and evidence in concluding that the plaintiffs had sustained their burden of proof to overcome the presumption of validity of the zoning ordinance, and their burden of proving that the ordinance was arbitrary insofar as it prevented plaintiffs from using the property for their planned development project. See Frost v. Vil. of Glen Ellyn (1964), 30 Ill.2d 241, 246; Liebling v. The Village of Deerfield (1961), 21 Ill.2d 196, 201; LaSalle Nat. Bk. v. Cook County (1964), 28 Ill.2d 497, 500, 501; LaSalle Nat. Bk. v. City of Evanston (1962), 24 Ill.2d 59, 63, 64; LaSalle Nat. Bk. v. Vil. of Grayslake (1963), 29 Ill.2d 489, 492.

The ultimate question presented by this case is not whether ideally any impairment of the natural state of the subject property should be allowed but rather, whether the present ordinance is unreasonable in restricting the land to single family uses and precluding the multiple family use. Thus, we think the trial court properly observed that maintaining the property for open recreation or park purposes, in accordance with the decisive portions of Dr. Sheaffer s testimony, would be beneficial to the general public; but that this was not the issue. As the trial court noted, the public may acquire the flood plain and water recharge areas by eminent domain, but cannot require plaintiffs to bear a greater burden than other property owners in supplying public facilities. The result of the trial courts holding was to permit the highest and best use of the property but with due regard for engineering solutions which would be in the public interest of preserving as much of the flood plain and water recharge area as possible. The decree was therefore made subject to approval of plaintiffs engineering plans by the Village engineer. The finding that this condition has been met is included in the supplemental decree.

We, therefore, affirmed the judgment below.

Judgment affirmed.

MORAN, P. J. and SEARS, J., concur.

      It is apparent to us from the record that a number of the witness’s suggestions relative to planning the site for single family development did not take into account the applicable building or zoning restrictions of the Village, or reasonably convenient access to the homes. For example, he recommended that single family residences be constructed on pillars, raising the residences 6 feet above ground level and was unaware that the Village ordinance required the first floor level of a residence to be 3 feet above flood plain. He recommended that streets be laid in a position where they would be under 6 feet of water during flood stage which he described as an “inconvenience” but was apparently unaware that the Village ordinances required all street embankments to be raised at least 1½ feet above high water. His recommendation of a cluster of single family houses would have been contrary to the Village ordinance. His recommendations as to the placement of houses on the lots would have violated the Zoning Ordinance of the Village.


author: Mr. JUSTICE EBERLE

text:
    National Drag Racing Enterprise, Inc., Plaintiff-Appellee, v. The County of Kendall, et al., Defendants-Appellants.
    (No. 70-175;
    Second District
    October 6, 1971.

      Dallas C. Ingemunson, State’s Attorney, of Yorkville, for appellant.
    Murphy, Griffin and Dixon, of Aurora, for appellee.
   Mr. JUSTICE EBERLE

delivered the opinion of the court:

Oral argument of this case was set for June 1st, 1971. On Friday, May 28, 1971, the appellee filed a motion to transfer the cause to the Supreme Court of Illinois on the ground that the appeal raises the constitutionality of sections 6101 and 6102, chapter 34 of the Illinois Revised Statutes; that the issues are constitutional in nature, and that substantial questions under the constitution of the State of Illinois are involved.

June 1st being the next court day, this motion did not come to the attention of the court until the day set for oral argument. At the opening of the court not all counsel were present. The court at that time decided to take the motion to transfer for consideration with the case.

Supreme Court Rule 302, as revised, provides, “Appeals from final Judgments of the circuit courts shall be taken directly to the Supreme Court (1) in cases in which a statute of the United States or of this State has been held invalid * * The final order of the trial court holds that the assessment of a tax, under sections 6101 and 6102 of Chapter 34 of the Illinois Revised Statutes, against the plaintiff-appellee is a discriminatory tax prohibited by the constitution of the State of Illinois and of the United States, thereby declaring this statute invalid and unconstitutional. The issues in this case present the question of the constitutionality of said section 6101 and 6102.

Under Supreme Court Rule 302, the appellee is entitled to a transfer of this cause, under its motion, and the case is ordered transferred to the Supreme Court of the State of Illinois.

Cause transferred.

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


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    Paul Jackson, Plaintiff-Appellee, v. H. J. Frierdich & Sons, Inc., et al.—(H. J. Frierdich & Sons, Inc., Defendant and Third Party Plaintiff-Appellant, v. William Baker Building Cleaning Company, Third Party Defendant-Appellee.)
    (No. 70-9;
    Fifth District
    August 12, 1971.

      Rehearing denied September 9, 1971.

      Oehmke, Dunham, Roman & Leskera, of East St. Louis, for appellant.
    Listeman, Bandy & Hamilton, of East St. Louis, (Charles E. Hamilton, of counsel,) and Paul L. Pratt, of East Alton, (Pratt, Williamson, Mosele & Day, of counsel,) for appeUee.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This action was brought by the plaintiff, Paul Jackson, to recover damages occasioned by the aHeged violation of the Structural Work Act (Ill. Rev. Stat. 1965, ch. 48, par. 69), by the defendants, H. J. Frierdich & Sons, Inc. and John Brancaghone, Jr. In turn, defendant Frierdich brought a third-party action against the third-party defendant, William Baker Building Cleaning Company, hereafter referred to as Baker. At the close of the evidence in the case, the court directed a verdict in favor of the third-party defendant, Baker. The jury returned a verdict for plaintiff against the defendant Frierdich and in favor of the defendant Brancaghone.

Judgments were entered on the verdict of the jury and on the court’s directed verdict from which judgments this appeal is brought.

The facts which brought this to litigation are as follows: The Immaculate Conception Church in Columbia, IUinois, entered into a contract with third-party defendant, Baker, as the general contractor to renovate the church building. The renovation involved removal of old brick and stucco from the church waUs and putting on new brick and the installation of a new roof among other general work.

The third-party defendant contracted with defendant John Brancaglione, Jr., d/b/a Brancaglione Building Contractor, hereinafter called Brancaglione, to perform the brick work. This work was to be performed on a cost plus a fee basis. Third-party defendant contracted with defendant H. J. Frierdich & Sons, Inc., hereinafter called Frierdich, to do the carpenter work on a time and material basis.

The plaintiff, Paul Jackson, hereinafter called the plaintiff, was the foreman for the third-party defendant.

On July 30, 1963, the plaintiff fell from a scaffold on the east side of the church. At the time of the fall, bricklayers were working from a scaffold on the south side of the church. Just prior to the plaintiff’s fall, the plaintiff was upon the scaffold with the bricklayers because of some matter having to do with their work.

The scaffold, from which the plaintiff fell, was a tubular type, two sections or 10 feet high. There was no one else on this scaffold and there were no witnesses to the fall.

The plaintiff testified that he stepped from the roof of the church onto a scaffold board on the top section of the tubular scaffolding. When he did so, the board slipped and he fell to the ground suffering injury.

The testimony shows that the scaffold from which the plaintiff fell was erected and used by several groups of persons. Laborers employed by third-party defendant erected a single five-foot high section of the scaffold from which the bricklayers worked. After the bricklayers had completed their work, laborers started to remove this scaffolding and had removed the boards when request was made by the carpenters to leave the tubular sections. The custom of the industry is that crafts allow other crafts to use their scaffolding when so requested in order that the effort of erecting and removing scaffolding not be duplicated. And further, the custom was that the craft requesting the tubular scaffolding would furnish their own boards.

Brancaglione and third-party defendant, Baker, both had scaffolding on the job site. The scaffolding was intermingled but each had different colors to allow for identification of ownership.

The work that the carpenters performed on the east wall required the use of a second section of scaffolding and there was testimony that the carpenters erected the second section. There was further testimony that the carpenters used the scaffold both prior and subsequent to the date plaintiff fell. The evidence showed that neither the plaintiff or third party defendant had anything to do with the erection of the scaffold.

There is no testimony as to the ownership of the scaffold board which slipped or who in fact placed the board itself on the scaffold. There is no testimony as to the condition of that board or how long it had been up prior to the fall, but plaintiff testified the board was not secure and slipped when he placed his weight upon it.

There were six carpenters that worked on this job at one time or another. Two carpenters testified for Frierdich and they stated that they could not remember whether or not they had erected the scaffolding and they did not know who did. Both recalled working from the scaffolding. Frierdich acknowledged the need for two sections of scaffolding for some of the brick work.

The defendant, Frierdich, urges that the plaintiff did not prove a case under the Structural Work Act, supra, and that as third-party plaintiff it did prove a submissible case of implied indemnity against the third-party defendant.

Frierdich contends that there was no evidence that it was in charge of the work of constructing the scaffold, no evidence that the scaffold board involved was placed in position by Frierdich, no evidence that the scaffold was not erected in a safe, suitable and proper manner. Frierdich further contends that liability cannot be based upon speculation or conjecture.

We agree that liability cannot be based upon speculation, surmise, or conjecture. Withey v. Illinois Power Co., 32 Ill.App.2d 163, 177 N.E.2d 254.

However, we do not find this to be the case. If plaintiffs testimony is taken as true, an inference of a defect in the scaffolding from the accident itself is reasonable. (Huckabee v. Bell & Howell, 102 Ill.App.2d 429, 243 N.E.2d 317.) There is undisputed evidence that Frierdich constructed the scaffolding and that Frierdich used the scaffolding before and after the plaintiff’s faU. In a brief filed in the trial court on Frierdich’s behalf, “it would concede that in the erection of the scaffolding it was in charge of that phase of tire operation”. Frierdich must, therefore, be responsible for its safe construction. (Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 211 N.E.2d 247; Lawler v. Pepper Construction Co., 33 Ill.App.2d 188, 178 N.E.2d 687; Burger v. Van Severn, 39 Ill.App.2d 205, 188 N.E.2d 373.) It cannot, therefore, be said that there was no evidence to support the jury’s findings that Frierdich was “in charge” of the work involving the construction of the scaffolding. The jury had sufficient evidence from which to conclude that the scaffold did not meet the Act’s requirements of safety, suitability and propriety. The Act places absolute and unconditional liability on any person in such a case. Pantaleo v. Gamm, 106 Ill.App.2d 116, 245 N.E.2d 618; Dinschel v. United States Gypsum, 83 Ill.App.2d 466, 228 N.E.2d 106. The record contains sufficient evidence for the jury to find the elements necessary to hold Frierdich hable under the Act. The jury thus determined that Frierdich was guilty of active negligence.

Frierdich next contends that it proved a submissible case of implied indemnity against the third-party defendant. Frierdich correctly asserts that the mere fact that a party may erect a portion of the scaffold does not mean that any violation of the Structural Work Act on its part will, as a mater of law, be an active violation and thus preclude an indemnity action. (Moroni v. Instrustion-Prepakt, Inc., 24 Ill.App.2d 534, 165 N.E.2d 346; Larson v. Commonwealth Edison Co., 33 Ill.App.2d 188.) However, the record is without evidence of any activity by the third-party defendant in connection with the construction of the scaffold. The record on the other hand is replete, as set forth previously, with evidence that Frierdich was an active and primary violator of the Structural Work Act, supra, Sack v. Arcole Midwest Corp., 33 Ill.App.2d 344, 179 N.E.2d 441.

Frierdich as third-party plaintiff contends that the liability of third-party defendant should be decided by the jury. But in a case such as this where the only evidence of active conduct falls upon the third-party plaintiff, there can be no contribution from a third-party defendant. (Yankey v. Oscar Bohlin & Sons, Inc., 37 Ill.App.2d 457, 186 N.E.2d 57.) “The evidence establishes without contradiction that the defendant (third-party plaintiff) was an active tort-feasor, while the plaintiffs [third-party defendants] were passive tort-feasors. We are of the opinion that the trial judge was right in directing a verdict for the plaintiffs [third-party defendants].”

The court below directed a verdict after all of the evidence was heard and made its determination from the evidence. It concluded that Frierdich was the primary and active violator of the Act, and that as such, Frierdich could not have any contribution or indemnity from the third-party defendant. We have examined the record and find adequate support for the trial court’s findings.

Judgment affirmed.

CREBS and JONES, JJ., concur.


author: Mr. JUSTICE ABRAHAMSON Mr. JUSTICE GUILD,

text:
    H. G. Cunningham, Plaintiff-Appellee, v. Roger C. Aeschliman, Defendant-Appellant.
    (No. 70-198;
    Second District
    September 8, 1971.
    Guild, J., dissenting.
    Allen S. Greene, of Wheaton, for appellant.
    Rathje Woodward, Dyer & Burt, of Wheaton, and Gerald J. Brooks, of Chicago, for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

In this action, plaintiff, a real estate broker in Indiana, sued the defendant, owner of a home in Munster, Indiana, for a real-estate commission on the sale of the home and certain refurbishing expenses to the home. A circuit court judge in DuPage County in a bench trial found in favor of the plaintiff broker and against the defendant seller, who had moved from Munster to Wheaton, Illinois. Judgment was entered in the amount of $4,080 for commission, and $379 for refurbishing expenses.

The main issue is whether the plaintiff broker procured or produced a ready, willing and able purchaser within the time and according to the terms of the sales agency agreement.

On June 14, 1967, the defendant executed an instrument designated as a home listing agreement, which was an exclusive agreement, and was directed to the plaintiff, a licensed real estate broker. This agreement, by its terms, was to continue in force for a period of 90 days, which made its expiration date September 12, 1967. The listing agreement contained the following:

“if within six months after the expiration of said period, a sale is made to any person, directly or indirectly, whom you or any other member of the Multiple Listing Service of the Calumet Area, Inc. may have interested in the property, I or we agree to pay you a commission of 6% of the gross sales or exchange price thereof, provided, however, that this extension clause shall not be applicable and binding during the term said real estate is relisted with some other licensed realtor under an exclusive listing contract upon or after the term of this listing agreement.” Emphasis added.

It is undisputed that the home in question was ultimately purchased by a Dr. Santare and his wife, who were introduced to the seller by the broker. Without detailing all the offers and counter-offers made between Santare and the seller, it appears that the property was listed in the agreement for a sales price of $75,000, or for a lesser sum and on other terms with the consent of the seller. There were three offers to purchase, by Santare, and submitted through the broker to the seller. None of these offers was accepted, and each prompted a counter-offer which was not accepted. However, on August 29, 1967, the broker returned the $500 earnest money to Santare, and after that Santare had no further dealings with the broker. Thereafter, Santare called the seller and arranged a meeting for Labor Day weekend. They met on Labor Day, at which time the seller suggested a lease, and certain corrections to the condition of the property were suggested, to be made at the lessor’s expense, to put the house in good condition. Thereafter, a lease was executed between Santare and his wife, as lessees, and Mr. and Mrs. Aeschliman, as lessors. Execution of the lease was acknowledged before a notary public by the lessees on September 5, 1967, which date is prior to the expiration of the exclusive listing agreement. Attached to the lease is a rider which is labeled, “Additional Covenants Between Aeschliman and Santare,” and covered certain conditions of the property to be corrected by the lessors. It is dated September 14,1967, and is signed by the parties. Also attached to the lease is an option to purchase, which formed a part of the lease and was signed by both parties, and its execution by the Santares is acknowledged by a notary public on September 5, 1967. The Aeschlimans’ signatures on the option to purchase were not acknowledged before a notary public. The option to purchase is dated “on the-day of September, 1967,” the day not being filled in. The option, which was coupled with the lease, provided for a purchase price of $68,000 (the same figure that Santare had offered in his third offer to purchase, dated August 21, 1967). Santare moved into the home on September 29, 1967, and exercised the option to purchase on September 19, 1968. On October 17, 1968, the deed was recorded, conveying the property at a purchase price of $68,000.

The trial judge in a written decision, prior to the entry of judgment, stated that: “The obligation of the real estate broker, however, had been completed when he produced the purchaser, and the lease with option to purchase which was ultimately entered into by the parties was merely the means of carrying into effect the relationship which had been initiated by plaintiff when he produced the purchaser and presented him to the property owner.”

However, the contractual obligation of the broker was more than just producing the ultimate purchaser and presenting him to the property owner. The option to purchase by its terms gave the buyer the option to purchase the property for the sum of $68,000, between October 1, 1968, and November 1, 1968, and for the sum of $69,000 if the option was exercised between September 1, 1969, and November 1,1969. A condition to exercising the option was that the buyer would have been a lessee for a year prior to the date of exercising the option. The lessee, of course, did not have to exercise the option and purchase the property. The home listing agreement was drawn by the broker and, therefore, it is to be construed strictly as to the brokers rights. That agreement gave the broker the exclusive right and privilege to “sell” the property for 90 days, and further provided as hereinbefore set forth for certain conditions pertaining to a “sale” during the six-month period following the expiration of the exclusive period. The seller has contended that the option-to-purchase contract entered into did not constitute a “sale” under the listing agreement. In Hatfield v. State, 9 Ind.App. 296, 36 N.E. 664, it is stated: “A sale, strictly speaking, imports a transfer of the title and possession of property in consideration of a price paid or to be paid in money.”

In any event, the broker did not produce a buyer who was ready, willing and able to purchase the property within the 90-day exclusive period or the six months’ period following the exclusive period. As the broker drew the contract, he could have provided for the contingency that occurred in this case, but he did not do so. Although no questions are raised as to the purchasers’ ability to purchase the property, the facts herein do not substantiate the broker’s position that the purchaser was ready and willing to purchase the property within the terms of the contract. Good faith on the part of the seHer did not require acceptance of any of the three offers made by Santare in July and August of 1967. The only similarity between Santare’s last offer and the option to purchase in the lease is the option price of $68,000, as the terms and conditions of each were different. It is to be observed that the option price of $68,000 could only be exerised after the payment of $6,000 in rent, and the buyer testified he was not certain he was going to buy the property.

Because we have determined that the broker is not entitled to a real estate commission, it is unnecessary to discuss the contentions of the seHer that the broker abandoned his contract before the expiration of the exclusive listing agreement; that he acted adversely to the seller when he filed a lien for cleaning biUs against the property on August 25, 1967; and breached the Real Estate Board Code of Ethics because he allegedly solicited a fisting of the prospective buyer’s property when negotiations with the seHer were stiU pending. Regardless of these contentions, the testimony is that the broker had no further dealings with the ultimate purchaser after he returned the earnest money to the purchaser on August 29, 1967, which date is prior to the expiration of the 90-day exclusive period.

However, the testimony and exhibits in this case support the broker’s claim of recovery of the $379 expended by him for work which he undertook to have performed in cleaning and painting with the seller’s approval or in order to make the home more presentable for sale. The trial court properly found that the seller is liable for the cost of this work, but the court improperly found that the broker was entitled to a commission.

For the above reasons, the judgment in favor of the plaintiff for the real estate commission is reversed, and the judgment in favor of the plaintiff for $379 for cleaning and painting is affirmed.

Reversed in part and affirmed in part.

SEIDENFELD, J., concurs.

Mr. JUSTICE GUILD,

dissenting:

I must respectfuUy dissent from the majority in this case.

Basically the facts are quite simple. The owner fisted his property with the real estate broker; the broker produced a buyer who offered $68,000 for the property on August 21, 1967; the owner refused to sell and in September of 1967, Dr. Santare, the purchaser produced by the real estate broker, moved into the house under a lease for a year with an option to purchase the property for exactly the price offered by him through the broker. This amount would be very close to the interest on $68,000, and including the taxes, it in effect deferred the payment of the purchase price for one year when Dr. Santare exercised the option at $68,000. In my opinion this is but a subterfuge to avoid paying the broker a commission, for the buyer he produced at the figure he subsequently paid. I would affirm the trial judge.


author: Mr. JUSTICE ABRAHAMSON

text:
    Ray L. Pearson, Plaintiff-Appellee, v. Vernon R. Smith et al., Defendants-Appellants.
    (No. 70-263;
    Second District
    September 10, 1971.
    Paul F. O’Neil, and Fearer & Nye, all of Rochelle, and Victor, Hennelly & Gaziano, of Rockford, for appellants.

      Cuve M. Glosser, of RocheUe, for appeUee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The plaintiff filed a suit in the circuit court of Ogle County on May 8, 1968, to foreclose a trust deed on Lots 9 and 10 of Sarver’s Addition to the ViUage of HiUcrest, and it is from the decree of foreclosure that the owner of Lot 9, alone, appeals.

On the 6th day of August, 1962, Dallas and Flaudia Woolbright borrowed $30,000 from the plaintiff, executed their note in that amount due one year after date, and secured the same with a trust deed (mortgage) on the aforementioned Lots 9 and 10. A tavern and nightclub were built on Lot 10, but Lot 9 remained vacant. Upon the note becoming due, the Woolbrights paid the interest and obtained an extension on the payment of the principal for one year. Soon thereafter they conveyed the lots to Woolbright, Inc., a corporation that was family-owned, and that corporation on June 23, 1964, conveyed the said Lot 10 to HUlcrest Welcome Inn, Inc., for $40,000, which consisted of $10,000 in cash and $30,000 by assuming and agreeing to pay the existing mortgage (covering both Lots 9 and 10). Thereafter, on June 1, 1965, the family corporation sold Lot 9 to O’Neil & Co., for $3500, by warranty deed which does not mention the mortgage. HiUcrest Welcome Inn, although a corporation, was wholly owned by Erwin Hackman, and when the note as extended came due again on August 6,1964, Hackman paid the interest and obtained another extension. Thereafter, interest was paid and the note was extended again in 1965 and 1966. The liquor license of HUlcrest Welcome Inn was revoked in 1967. The property became and remained vacant, and thereafter, because of default on the note and mortgage, this foreclosure suit was instituted.

It appears that the plaintiff, since 1964 and prior to instituting suit, dealt only with Hackman with reference to the payment of the note. It also appears that the plaintiff was not specificaUy advised that the HUlcrest Welcome Inn had assumed and agreed to pay the mortgage. He also was not advised as to any transfers of Lot 9 and never consented to an extension of the mortgage, although he had asked that the principal of the note be paid by the Woolbrights and Hackman but was advised that they were unable to do so. O’NeU & Co. knew of the mortgage at the time it purchased Lot 9, as its principal stockholder, an attorney, Paul O’Neil, handled that transfer as weU as aU the previous transactions herein mentioned and relating to Lots 9 and 10.

At the hearing on the foreclosure, the plaintiff waived a claim for personal liabUity against DaUas and Flaudia Woolbright by stipulation, as plaintiff’s attorney had concluded that under Illinois law the extension of the note precluded the recovery of a deficiency judgment against them. On May 14, 1970, the trial judge filed a memorandum opinion, and thereafter entered a decree of foreclosure on both Lots 9 and 10.

The appellant, O’Neil & Co., contends that the extension of the debt by the mortgagee to the grantee of a part of the premises (Lot 10), who assumed and agreed to pay the mortgage, without the consent of the original mortgagor, released the lien on the balance of the premises (Lot 9) so that it is not subject to foreclosure. We have found no Illinois case which decides the precise question presented herein. It is pointed out in 101 A.L.R. Anno., page 619, that there is a “dearth” of cases dealing with the question of how a mortgagee’s release of his mortgagor’s personal liability by dealing with the purchaser of a part of the mortgaged premises affects the lien of the mortgage upon another part of the property which has been conveyed by the mortgagor to a third party. The annotator concludes: “In those cases that have come before the courts, however, the terms of the conveyance, together with the amount of knowledge of the facts possessed by the mortgagee at the time of the release, appear to have been regarded as of major importance in the determination of the question.” (Seale v. Berryman (1935), 101 A.L.R. 613, 49 P.2d 997, and the cases cited therein, lend support to the argument of O’Neil & Co.

We have found no cases of recent origin that cite and follow the Seale case. However, there are certain Illinois cases which gave us guidance in deciding the issue presented. In Schroeder v. Wolf, 127 Ill.App. 506, 509, the general rule is stated that “nothing short of actual payment of the debt or an express release will operate as a discharge of the mortgage.” In affirming the decision of the Appellate Court, the Supreme Court (Schroeder v. Wolf, 227 Ill. 133), deciding the priorities as between two successive trust deeds on the same property, said, at page 135, with regard to appellee’s trust deed which was the first trust deed:

“The only controversy here is between the holders of the two trust deeds. It also seems clear to us that since appellee’s trust deed was duly recorded, it must be held that all subsequent conveyances of said premises are affected with notice of appellee’s trust deed. This trust deed had never been released of record, and anyone examining the recorded title to the lot thereby conveyed would find the unreleased trust deed given to secure the $1200 note. Wolf has never received payment of this note and has been guilty of no act that will estop him from asserting his rights under the trust deed.”

In an early Illinois case, Union Mutual Life Ins. Co. v. White, 106 Ill. 67, the court said at page 73:

“A deed of trust is, in almost every respect, a mortgage. It is, acqord' ing to the modem doctrine, like a mortgage, a mere security for the payment of money, or the performance of certain agreements or undertakings by the mortgagor. It has been repeatedly held by this court that the debt is the principal, and the mortgage the incident depending upon and following the debt. When the debt is paid the mortgage is satisfied, in law. As long as the debt remains the mortgage exists, unless actually released; and the rule of law is, that once a mortgage always a mortgage, until the debt is satisfied and extinguished, or the equity of redemption is foreclosed or released. In equity the mortgage still exists, whatever form the parties may give the transaction, unless it is intended by both parties that it shall be released and extinguished.” Emphasis added.

In Seeman v. Mills, 197 Ill.App. 589, the court stated at pages 590 and 591:

“Defendant says that 060 the grantee, Wenzelis, became the principal debtor, and the defendant, the mortgagor, became the surety; that the agreement to extend the time of payment operated to release the defendant from the debt. This is not the law. Where a grantee under a deed assumes the debt of the mortgagor, the relation of principal and surety, if there is such a relation, only applies as between themselves. As to the mortgagee, the grantee becomes an additional promisor only. In Scholten v. Barber, 217 Ill. 148, 150, the rule is stated thus: ‘In this State the rule is, that as between the mortgagor and his grantee who assumes the payment of the encumbrance, the grantee becomes principal debtor and the mortgagor becomes his surety. But the mortgagee is in nowise affected by the agreement to which he is not a party. He may disregard it and bring his action against the original debtor only, or he may accept the promise made for his benefit, and, treating it as an additional remedy, bring his action against the grantee. If the agreement is accepted by the mortgagee, each party to it is an original promisor for the payment of the encumbrance, but the contract rights of the mortgagee cannot be changed by any arrangement between the mortgagor and his grantee unless the mortgagee agrees to such change.’ ”

In Prudential Ins. Co. v. Bass, 357 Ill. 72, 75, the only question presented was whether or not the extension agreement entered into by the mortgagee and grantee of the mortgagor discharged the mortgagor from personal liability for the debt. The court held that, shortly after maturity of the note, the mortgagee had agreed to the extension and thereby deprived the mortgagor of the right to be subrogated by payment upon any other terms than those of the extension agreement. Thus, the court said that action of the mortgagee brought the case squarely within the reason for the rule releasing a surety in such a case. It is clear that the court was discussing the personal liability of the mortgagor on the note and not the lien of the mortgage on the property. In Conerty v. Richsteig, 379 Ill. 360, after discussing many cases, the court concluded that the mortgage is not dependent upon the note executed by the mortgagors for its validity, and that the mortgage relates only to the real estate pledged as security for the debt. The court stated at page 366:

“The mortgage is applicable to the right to apply the security to the discharge of the debt and the note to the liability of the maker for the payment of that indebtedness.”

and at page 368:

“The rule to be deduced from the above cases is, that the note and mortgage constitute separate contracts, and that any provision in the mortgage with reference to the time of payment of the debt, not found in the note itself, is no part of the note and does not affect the personal liability of the maker.”

Under the facts of the Conerty case, the court concluded that the extension agreements therein released the mortgagor from personal liability to pay the indebtedness and that, therefore, the circuit court erred in entering a decree for a deficiency judgment.

It appears that the plaintiff never did anything, expressly or impliedly, to affect the validity of the mortgage lien on Lot 9. Appellant’s argument that the release of the mortgagors’ personal liability released the debt and, thereafter, there could be no debt for which the realty is pledged as security is without merit under Illinois law which treats the note and mortgage as separate contracts.

The decision of the trial judge, in directing foreclosure of the mortgage on Lot 9, was proper and substantiated by the Illinois cases cited herein. Therefore, the decree of the circuit court is affirmed.

Decree affirmed.

MORAN, P. J., and GUILD, J., concur.


text:
    Lois Mary Di Paolo, Plaintiff, Counter Defendant-Appellee, v. Anthony Michael Di Paolo, Defendant, Counter Plaintiff-Appellant.
    (No. 70-257;
    Second District
    September 14, 1971.
    Vincent F. Lucchese and James F. Whitfield, of Chicago, for appellant.
    Burek & Field, of Wheaton, for appellee.
   Opinion by

Mr. JUSTICE SEIDENFELD.


author: Mr. JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. William Schoeneck et al., Defendants-Appellees.
    (Nos. 70-108, 70-128 cons.;
    Second District
    September 17, 1971.

      Rehearing denied November 11, 1971.

      William V. Hopf, State’s Attorney, of Wheaton, (Ralph J. Gust, Jr., and Malcolm F. Smith, Assistant State’s Attorneys, of counsel,) for the People.
    Kevin P. Connelly, Frank Wesolowski, Jr., Public Defender, and Robert H. Heise, all of Wheaton, for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The People of the State of Illinois bring this appeal of two orders of the Circuit Court of the 18th Judicial Circuit, DuPage County, which are here consolidated.

Two questions are raised: (1) whether statements of defendants were properly suppressed by the trial court; and (2) whether the defendants, who had been incarcerated for a period of more than 120 days, were properly discharged under the statutory provision for speedy trial. Ill. Rev. Stat. 1969, ch. 38, par. 103—5.

We consider first suppression of the statements. The two defendants, Schoeneck aged seventeen years, Robbins aged sixteen years, and a third defendant named James Fiene, were arrested in the Fiene residence by four police officers of the City of Elmhurst about 8:30 in the morning on August 30, 1969, the Saturday of Labor Day weekend. The youths were handcuffed and taken to the Elmhurst police station. During the course of the day, from about 9:00 o’clock that morning until the early evening they were variously, interrogated by two other Elmhurst police officers.

During the early afternoon a complaining witness was present in the police station for the purpose of viewing the defendants through a one-way glass. In the course of a hearing on defendants’ motions to suppress line-up identification, the witness testified he looked into a room containing only the defendants and saw someone else come in whom he did not know. There was testimony that an officer about ten years older than defendants was present in the room with them when defendants were viewed by the witness, and that although the officer was similarly clothed he was clean and well groomed in contrast to the disheveled appearance of defendants. Although the issue of line-up identification is not before us as the State agreed to its suppression by stipulation, a police officer told defendants, after the viewing, that they might as well confess as they had been identified, and one defendant was told that the other had confessed.

The arresting officers who allegedly advised the defendants of their rights under Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, did not testify at the hearing on suppression of the confessions. Two officers who were present in the police station, but not at the arrest, did testify and made various references to advice of rights given to defendants by the arresting officers. This testimony is conclusional, obviously hearsay, and denied in substance by defendants. These interrogating officers variously stated that during the course of the day they warned the defendants of then rights but the testimony is not persuasive that adequate warnings were given. The challenged confessions were obtained at approximately 7:00 o’clock in the evening. The following colloquy is an example of one officer’s testimony in this regard:

“A: Well, from time to time throughout the day he was advised of his rights under the Miranda decision and he was also advised before he made the written statement.
The Court: The question is, Lieutenant, just what did you say to him?
The Witness: I advised him before he made a written statement that he could have his attorney or his father present.
The Court: Is that all?
The Witness: Yes, sir.
By Mr. Fitzsimmons: (State’s Attorney)
Q: That is all that you said to him?
A: Yes, sir.
Q: AH right.”

Lt. Erber of the Elmhurst police department further testified that defendant Schoeneck “had been warned of his rights three or four times that day and he was warned again of his rights before he made out the oral — the written statement.” Lt. Erber testified further: “I was told that he was informed of his rights” and further: “The way I knew they were given their warnings is when they were brought into the station and the officers told me when I asked them whether they were given their warnings.”

Upon redirect examination, Lt. Erber testified for the first time that he had read the Miranda warnings to the defendants from a card. One defendant denied the material on the card had been read to him and the other did not recall. One defendant testified that he had asked for a particular attorney and the other testified he had phoned, but had not reached an attorney during the course of the day. The written statements were on forms containing a printed waiver of rights and that waiver apparently was read to or by defendants, but the record indicates this occurred after oral statements had been made and was in the context of: “Read that. Sign it.”

Under the circumstances, the order of the trial court suppressing oral and written statements of the defendants was correct.

The second issue concerns defendant’s discharge. It is difficult to determine from the record the exact commencement date of each defendant’s incarceration. Although they were arrested simultaneously on August 30, 1969, various references indicate that the continuous incarceration of one of them commenced a day or several days after the other. It is clearly conceded, however, that both defendants had remained incarcerated for more than 120 days prior to entry of orders releasing them from custody on January 28,1970. Orders entered February 2,1970, vary in form as the order concerning Schoeneck dismisses the cause and the order concerning Robbins discharges the defendant, but both orders are based on the failure of the State to bring them to trial within 120 days as required by statute.

The State contends the discharge was erroneous because the delay was “occasioned by the defendants” within the meaning of Ill. Rev. Stat. 1969, ch. 38, sec. 103-5(a), and that motions made by defendants tolled the running of the statute.

Schoeneck was represented by private counsel, and Robbins by the public defender. Shortly after indictment, both defendants filed various motions including demand for a fist of prosecution witnesses at trial, a fist of witnesses to any oral statements by defendants, a copy of any written statements by defendants, preparation of a transcript of grand jury testimony for use at trial, and opportunity to examine any physical evidence, which were granted in an order directing the State to furnish the lists of witnesses and copy of any written statement on or before October 24, 1969. Bail for both defendants was reduced by order entered October 29, 1969, pursuant to defendants’ motions. These motions were timely and do not appear to have occasioned any delay which would interfere with trial within 120 days.

On November 21, 1969, the matter came up for hearing on defense motions to suppress the line-up identification and suppress defendants’ statements. Defendant Robbins’ statement had not yet been furnished to his attorney. The trial judge ordered it reproduced and furnished forthwith to Robbins’ attorney who said he was ready to proceed with hearing on suppression of the line-up identification but would like to see the statement before answering on suppression of the statement. Robbins’ statement was thereupon furnished and hearing proceeded on both matters in sequence. Hearing continued throughout the balance of the day and after the assistant state’s attorney advised the court that in view of the evidence he wished to bring in an additional witness who was not present that day. Hearing was continued to the afternoon of December 5, 1969, and on that morning, without appearance of defense counsel, was continued to December 19, 1969, as other matters required the court’s attention on the afternoon of December 5, 1969. On December 19, 1969, the State presented as an additional witness, the man who had viewed defendants at the police station, and the defendants also testified in their own behalf.

The record contains a written motion for defendant Robbins filed December 3, 1969, to quash the indictment because it charged separate felonies in violation of Ill. Rev. Stat., ch. 38, par. 111—4, or in the alternative to require the State to elect on which count it would proceed. Although the motion uses older terminology, it is in substance a motion to sever separate offenses as provided in sec. 114—8, ch. 38, Ill. Rev. Stat. 1969. (See People v. Fleming (1970), 121 Ill.App.2d 97,257 N.E.2d 271.) The indictment named both defendants and contained five counts. Four counts charged burglary, each at a different address. Four counts alleged offenses committed on August 25, 1969, and a fifth count alleged an offense committed on August 27, 1969.

At conclusion of the suppression hearings on December 19, 1969, the assistant state’s attorney requested a trial date and Robbins’ attorney told the court his motion to quash was on file. Robbins’ counsel said 120 days would run shortly and he had earlier referred orally to the problem of joinder of separate offenses commencing with the date of arraignment. Schoeneck’s attorney stated he had previously adopted the motion to quash or elect. The assistant state’s attorney said it was his position that the joinder was proper as all offenses were part of a comprehensive transaction and offered nothing further. After an unrecorded discussion in chambers, the transcript of December 19, 1969, shows the following:

“The Court: All right, December 29th at 2:00 o’clock, is that right?
(Attorney for defendant Robbins: Yes, sir.
The Court: Is that what we agreed on?
(Attorney for defendant Schoeneck) : Yes, sir.
(Assistant State’s Attorney): Yes, sir.”

A docket entry for December 19, 1969, indicates defense motions to quash were set for hearing December 29, 1969.

No transcript has been furnished concerning December 29, 1969, and a docket entry indicates only that counsel appeared, defense motions to quash the indictment or in the alternative to require the State to elect were taken under advisement, and the cases were continued to January 7,1970. On that date they were continued to January 23,1970. The docket entries do not disclose a moving party for these continuances.

We are mindful that the trial court judge was familiar with the entire sequence of events, and in view of his order discharging the defendants believe we are not justified in interpreting the closing remarks at hearing December 19, 1969, which are set out above, as an agreement by defense counsel to continue the matter beyond 120 days from the date of incarceration or as an agreement sufficient to toll the statute and cause it to run anew on December 19, 1969. Moreover, although no written order appears in the record, nor does the docket indicate any ruling upon the motion to quash, there are indications that the trial court viewed the state’s refusal to elect as unacceptable. Nevertheless, we hold it was error to discharge the defendants for failure to bring them to trial within 120 days.

Article II, Section 9 of the 1870 Illinois Constitution guarantees an accused a speedy trial but specifies no time. Prior to 1964, this constitutional guarantee was implemented by statute requiring trial within four months, Ill. Rev. Stat. 1963, ch. 38, sec. 748, and upon January 1, 1964, the effective date of the new Code of Criminal Procedure, this statutory period was carried over more precisely as 120 days and is found in Ill. Rev. Stat. (Code of Criminal Procedure effective January 1, 1964) ch. 38, par. 103 — 5 which provides in pertinent part as follows:

“Every person in custody in this state for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant * * Emphasis supplied.

It is well settled that where an accused in any manner causes delay in trial by his own action, the statutory period is renewed and starts to run again from the date the delay occurred, or to which the cause is continued. (People v. Hamby (1963), 27 Ill.2d 493, 190 N.E.2d 289; People v. Taylor (1970), (Ill.App.2d), 258 N.E.2d 823.) Many actions of defendant have been held sufficient to toll the statute and cause it to run anew, including a motion for suppression of evidence involving some necessarily inherent delay (People v. Jones (1971), 266 N.E.2d 411; People v. Ross (1971), 271 N.E.2d 100), and a motion for severance, except that an unreasonable length of time must not elapse between the date motion for severance is filed and the date it is heard on its merits. People v. Jones (1968), 101 Ill.App.2d 423, 243 N.E.2d 481.

There is no contradiction in this record that Robbins’ counsel called the joinder of offenses to the attention of the state’s attorney at an early stage of the proceedings even though it was not reduced to writing until December 3, 1969. Even on that date it might have been disposed of more expeditiously and before the running of the 120 days, had the State not chosen to stand on the face of the indictment and simply state that alleged offenses at five locations on different dates were part of a single comprehensive transaction. Under the unique circumstances of this case, we do not believe we can justly hold that defendants’ motion to sever tolled the statute or caused a delay attributable to defendants.

We do hold, however, that defendants’ motions to suppress line-up identification and to suppress statements caused delay in trial attributable to them. These motions necessarily involved hearing of testimony and consideration of it. The State was less than diligent in faffing to furnish a copy of Robbins’ written statement to his counsel within the time ordered by the trial court, and unless there were sufficient reasons should have had all necessary witnesses present when hearing on the motions commenced November 21, 1969, even though it appears from the record that the testimony was so lengthy that hearing necessarily could not have been completed on that date. Even if defendants are indulged with the benefit of all oversights by the State, the 120 day period was tolled and commenced to run anew not later than November 21, 1969, and it was therefore error to discharge them on February 2, 1970.

The orders of the trial court suppressing defendants’ statements are affirmed and orders discharging defendants are reversed. The cause is remanded with direction to the trial court to rule on defendants’ motions to quash the indictment or to require the State to elect on which count it will proceed (substantially motions to sever the offenses) and for further proceedings consistent with this opinion.

Affirmed in part; reversed in part; and remanded.

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