text:
    Remole Soil Service, Inc., an Illinois Corporation, Plaintiff-Appellee, v. Robert D. Benson, et al., Defendants. Robert Benson, Defendant-Appellant.
    Gen. No. M-10,669.
    Fourth District.
    April 12, 1966.

      Walter R. Stewart and Philip C. Zimmerly, both of Champaign, for appellant.

      Gunn, Hickman & Kesler, of Danville (William R. Kesler, of counsel), for appellee.
   SMITH, J.

Plaintiff, an Illinois corporation, obtained a judgment for $87.47 before a magistrate in the small claims division of the Champaign County Circuit Court. The suit was initiated and tried through several court appearances and to judgment by plaintiff’s office manager, an unlicensed attorney. Defendant’s motion to find the plaintiff and its office manager in contempt of court for practicing law without a license was denied by an associate circuit judge after hearing on affidavit, counteraffidavit and argument. The counteraffidavit of the office manager asserted that he is not a licensed attorney; does not hold himself out to be such; does not solicit legal business in any manner, shape or form; and that his actions in the case were merely as an employee of the plaintiff seeking to assert its claim against the defendant under the small claims provisions of the Illinois law.

By its motion in arrest of judgment, the defendant contends that a corporation cannot practice law, cannot appear in a court of record except through a licensed attorney, and that the instant judgment is thus a nullity and void. Plaintiff replies that the small claims practice is a substitute for the former justice of the peace practice where an agent could appear for others without qualifying as a licensed attorney; that it is neither practical nor economical to employ an attorney on small claims and to require it is to close our courts to corporations on claims under $200 and to leave them open to the individual citizen to prosecute or defend his own suit pro se.

The precise question before us appears to be a matter of first impression since the adoption and implementation of the new judicial article. The area of our jurisdiction is narrowly confined. The license to practice law is a privilege granted only by the Supreme Court and can only be delimited, restricted or taken away by that court or by statutory enactment. People ex rel. Andrews v. Hassakis, 6 Ill2d 463, 129 NE2d 9. As early as 1878, it was judicially determined that laymen might appear as agents for a party in justice of the peace courts. McLaughlin v. Gilmore, 1 Ill App 563. This principle was reiterated in People v. Hubbard, 313 Ill 346, 145 NE 93, but it was pointed out that such service was rendered as an agent only and not as an attorney at law and that such service for another could not be rendered in a court of record without a license to practice law. In so holding, the court merely enforced the then existing statute that no person without a license to practice law could “commence, conduct or defend any action, suit or plaint, in which he is not a party concerned, in any court of record within this state. . . .” Revised Statutes of 1874, p 169, SHA, ch 13, sec 1, Historical Note. Plaintiff suggests that the prosecution of small claims in circuit court is but a reincarnation of or a substitute for the justice of the peace practice and that the application of the principles just stated solves the problem. As we see it, the answer is not that simple.

To the statute quoted above, in 1917 the legislature added the words “in any county or probate court, or” just preceding the words “in any court of record, within this State, . . .” In 1959, all of these words were eliminated and the statute then and now reads: “No person shall be permitted to practice as an attorney or counselor at law within this State without having previously obtained a license for that purpose from the Supreme Court of this State.” Ill Rev Stats 1965, ch 13, sec 1. The statute appears to be straightforward and unequivocal whether applied to the practice of law in or out of court and without regard to distinctions between courts. It thus seems that the legislature spoke some years before the adoption of the judicial article and the rationale of McLaughlin and Hubbard has now been effectively laid to rest by legislative interment.

It is more than a play on words to say that soulless corporations function only through living souls. With certain exceptions not present here, corporations are prohibited from the practice of law generally. Ill Rev Stats 1965, c 32, ¶ 411. The prohibition is not escaped even though the officer, trustee, agent, or employee acting for the corporation is a duly licensed attorney at law. Ill Rev Stats 1965, ch 32, ¶ 414. It seems scarcely debatable that business corporations cannot engage in the practice of law for others. Paragraph four hundred and fifteen of the same statute reads in part that “Nothing contained in this act shall prohibit a corporation from employing an attorney or attorneys in and about its own immediate affairs or in any litigation to which it is or may be a party. . . .” This proviso is pregnant with the thought that in litigated matters to which it is a party, it may only appear by licensed attorneys. Further credence is given to this conclusion by the provisions of ch 13, ¶ 11, Ill Rev Stats 1965, which reads in part: “Plaintiffs shall have the liberty of prosecuting, and defendants of defending in their proper persons. . . This provision never has been nor do we think it reasonably could be construed to include inanimate corporate entities. It would seem to us that the legislature has quite clearly placed individuals and corporations in entirely different categories in using our courts for the prosecution or defense of their own affairs. Where plaintiff, a layman, owned all the stock in a corporation, was its manager, and had an assignment of one of its accounts for a recited $1 and other good and valuable consideration, plaintiff’s suit as assignee in which he sought to represent himself was dismissed by the trial court and its action affirmed by the Appellate Court. That court held that an assignment could not be used as a subterfuge to enable a layman to practice law and that plaintiff’s action did not bring him within the exceptions to the statute prohibiting the practice of law without a license which permits plaintiffs and defendants to prosecute and defend in their own proper person. Biggs v. Schwalge, 341 Ill App 268, 93 NE2d 87. We conclude, therefore, that “a party to an action may appear in his own proper person or by attorney, unless the party is a corporation, in which case it may appear only by attorney.” 7 Am Jur2d ¶ 6. It is clear that the office manager was engaged in the practice of law. We find nothing in the statutes, case law, or Supreme Court Rules which directly or by reasonable implication permits a business corporation to prosecute or defend its own suits in our courts, on any level except through a licensed attorney. It necessarily follows that the plaintiff and its sales manager are in technical contempt of court.

We have already noted in Biggs that the First District Appellate Court affirmed the action of the trial court in dismissing the suit prosecuted by a layman where the real party in interest was a nonparty corporation. This seems to be in accord with the practice where the issue has arisen in other jurisdictions. “Proceedings in a suit by a person not entitled to practice are a nullity, and the suit may be dismissed. If the cause has proceeded to judgment, the judgment is void and will be reversed.” 7 CJS, Attorney and Client, sec 16b.

In Bennie v. Triangle Ranch Co., 216 P 718, 719 (Colo, 1923), it is stated:

“ Tt follows that the proceedings were instituted and prosecuted without authority and in violation of law, and the judgment resulting from such proceedings is void. Newburger v. Campbell, 9 Daly (NY) 102; Kaplan v. Berman, 37 Misc Rep 502, 75 NYS 1002.

Accordingly, the judgment of the trial court is reversed and remanded with directions to vacate the judgment and dismiss the suit at plaintiff’s cost. In view of this result and this record, we do not deem it necessary to direct the trial court to reconsider the petition to find plaintiff and its manager in contempt nor to direct the imposition of punishment for contempt.

Reversed and remanded with directions.

TRAPP, P. J. and CRAVEN, J., concur.


source: Caselaw Access Project

author: TRAPP, P. J.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Johnnie Weaver, Impleaded, Defendant-Appellant.
    Gen. No. 10,690.
    Fourth District.
    April 12, 1966.

      J. Waldo Ackerman, of Springfield, for appellant.

      Raymond L. Terrell, State’s Attorney, and Robert T. Lawley, Assistant State’s Attorney, of Springfield, for appellee.
   TRAPP, P. J.

The defendant appeals from the sentence imposed following the verdict of a jury finding him guilty on counts of an indictment charging robbery, battery and theft, respectively. The brief and arguments are directed to the giving of certain instructions tendered in behalf of the prosecution and to the sufficiency of the indictment.

The trial court gave an instruction that if the jury found that any witness wilfully and corruptly testified falsely to any fact material to the issue, then they had the right to disregard the testimony of the witness, except insofar as corroborated by other credible evidence. It is contended that the instructions given by the court failed to define the material elements of the offenses and hence must be deemed in error under the rule of People v. DeMarios, 401 Ill 146, 81 NE2d 464. The cited case holds that such instruction is erroneous if there is a failure to define the facts material to the issue, but that it is not reversible error to give the instruction where other given instructions define the essential elements of the crime with which the defendant was charged. It appears, from the Abstract, that the court instructed the jury in the language of the statute as to the elements of each offense charged, and that, in addition to such instructions, the court also instructed the jury as to the allegations of the respective counts of the indictment, each of which charged one of the offenses for which convicted. It appears, therefore, that the material elements were before the jury and that there is no reversible error in the giving of this instruction.

Defendant urges that the giving of three instructions, each of which states the allegation of a count of the indictment, is reversible error in that each such instruction could be interpreted by the jury as a statement by the trial court that the defendant committed the acts alleged in the respective counts if the jury substituted the word “because” for the words “in that they” contained in the instruction, or if the jury should see fit to deem the words “in that they” were synonymous with the word “because.” The Abstract, however, clearly shows that the court instructed the jury that all of the instructions given by the court were to be considered in their entirety and as a series of instructions; and the court further instructed the jury in appropriate language that neither the giving of the instructions nor anything said by the court during the course of the trial were to be deemed by the jury as an expression of the court’s opinion as to guilt or innocence of the defendant; and finally, the given instructions expressly state that the indictment, or the counts thereof, are not to be considered by the jury either as evidence of guilt or as the basis for a presumption of guilt. Under such circumstances, there is no reversible error apparent.

The defendant objects to an instruction in the following language:

“The Court instructs the jury that a person is responsible for conduct which is an element of an offense if the conduct is either that of the person himself, or that of another and he is legally accountable for such conduct.”

It is urged that the instruction is abstract and is incomplete in that it does not set out the conduct mentioned in § 5-2 of the Criminal Code (c 38, § 5-2, Ill Rev Stats). The Abstract, however, discloses that the series of given instructions include an instruction in the language of § 5-2, although such instruction does not appear in a sequence with the quoted instruction. It appears to us that considering the instruction as a series, the jury was adequately instructed and that there is no basis for finding reversible error.

The defendant urges that since he was indicted as a principal, it was error for the court to give an instruction which defined an accessory. The citations to the Abstract contained in the argument are not clear and the precise reference intended cannot be ascertained. It appears to be the substance of the argument that since Art 5 of the Criminal Code of 1961 contains no explicit expression that an accessory may be punished as a principal, there is a distinction and change from the former Criminal statute which provided that an accessory before the fact might be indicted as a principal so that there could be no objection to an instruction stating his responsibility as an accessory.

The prosecution points out that the evidence raised the issue of whether the defendant was an accessory and a review of the record discloses no reason to question such premise. The Committee comments to Art 5, Criminal Code, 1961, state that § 5-2 sets out the circumstances in which a person is legally accountable for the conduct of another (Chap 38, § 5-2, S-H Anno Stats, 1961), and the comment continues to state that § 5-2 (c) is a comprehensive statement of liability which includes those situations that at common law, involved the liability of persons in the second degree and accessories before the fact. In People v. Jordan, 303 Ill 316, 135 NE 729, it was held that the giving of an instruction defining an accessory before the fact was proper where the evidence tended to show that one of two defendants committed an assault while the other took the money from the person of the party assaulted. In People v. Finch, 394 Ill 183, 68 NE2d 283, a contention was made, as here, that since the defendants were found guilty under the evidence as principals, an instruction concerning accessories was erroneous. The court stated that though the instruction might be inappropriate, it did not harm the defendant and did not furnish a basis for reversal of the judgment.

Defendant contends that it was error to give an instruction in the following language:

“The Court instructs the jury that while you should not convict each defendant on the possibility that he is guilty, neither should you acquit him on the ground that it is possible that he is innocent, if the evidence in the case establishes his guilt beyond a reasonable doubt. The law does not require the prosecution to introduce sufficient evidence to convince you of the guilt of the defendant beyond a possibility of a doubt.”

No authority has been cited by the defendant. This instruction has frequently been criticized as attempting to define reasonable doubt in both positive and negative terms, whereas the courts currently hold that “reasonable doubt” needs no elaboration, and that such an instruction should not be given. People v. Malmenato, 14 Ill2d 52, 150 NE2d 806; People v. Bowlby, 51 Ill App2d 51, 201 NE2d 136. The defendant’s given instructions include the presumption of innocence and an instruction which, in substance, directed the jury that it must believe from all the evidence and beyond a reasonable doubt that the facts are inconsistent with innocence, and that if two conclusions can reasonably be drawn from the evidence, one of innocence and one of guilt, they should adopt the conclusion of innocence and return a verdict of not guilty. By reason of the full instruction of the jury by the court, it does not appear that the jury were misled and we believe that there was no reversible error.

Defendant’s objections to the sufficiency of the indictment are now controlled by the decision of the Supreme Court in People v. Blanchett, 33 Ill2d 527, 212 NE2d 97.

The judgment and sentence of the trial court are affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


text:
    Alma Crum, Plaintiff-Appellee, v. Everett L. Green, Defendant-Appellant.
    Gen. No. 10,719.
    Fourth District.
    April 12, 1966.
    Rehearing denied May 2, 1966.

      Thomas J. Logue and Tom E. Grace, both of Mattoon, for appellant.
    Dilsaver & Gilkerson, of Mattoon (George N. Gilkerson and Joseph R. Spitz, of counsel), for appellee.
   TRAPP, P. J.

Defendant, Everett L. Green, appeals from a judgment of the Circuit Court of Coles County, Illinois, declaring plaintiff, Alma Crum, winner of the election for Township Supervisor of Mattoon Township.

Defendant’s first contention is that his motion to dismiss the proceeding to contest the election should have been allowed for the reason that § 23-20 and § 23-26 of chap 46 (Ill Rev Stats 1965), are unconstitutional in that they permit a contest to be held and decided upon the results obtained in precincts specified by the plaintiff contestant. The defendant in this casé sought and obtained a recount of the ballots in all of the precincts involved in the election. If the contest proceeding was properly conducted, the defendant was not, in fact, elected to the office on the basis of all precincts involved in the election. We believe that defendant, having had a consideration of all precincts involved as a matter of right under the statutes complained of, was in no way injuriously affected by the statute, and therefore could not assert the unconstitutionality of the statute. The cases of Ryan v. City of Chicago, 369 Ill 59, 62, 15 NE 708; People v. Diekmann, 285 Ill 97, 101, 120 NE 490; and People v. Huff, 249 Ill 164, 169, 94 NE 61, sufficiently illustrate this principle.

Defendant complains that the ballots were not properly preserved and that, accordingly, the results announced by the judges of the election must be allowed to stand.

The parties stipulated as follows:

“It is hereby stipulated and agreed by and between the parties hereto, through their respective counsel, that after the polls had closed in the Township Election for the Town of Mattoon, Illinois, held on April 6, 1965, the ballots cast in said election were properly wrapped, sealed and secured in canvas bag containers by the respective judges of the election in each precinct and thereafter delivered to the Township Clerk of said Town at the Township office in the evening of said date.
“It is further stipulated that no proof will be required from the judges of the election as to the above facts.”

There were 22 precincts and the ballots for each precinct were delivered to the town clerk in a separate corrugated box approximately 18 inches by 24 inches by 2% inches. On April 7, 1965, the day after the election, the canvass of the election was held and the boxes were stacked in one pile, according to precinct numbers, behind a cabinet in the office. On April 15, 1965, pursuant to a petition for discovery recount, the canvassing board conducted a discovery recount. The town clerk, Mr. King, testified that the ballots had been kept in the same place from April 6th to April 15th.

In the discovery recount each box was opened, the canvas bag removed from the box and opened. Mr. Slover, a member of the canvassing board as town assessor, then turned the package of voted ballots face down and checked for initials of the judges. The voted ballots were then handed to the clerk for counting the voted ballots. The ballots in the other envelopes, both disputed and spoiled, were examined after the envelopes were opened by Mr. Slover. The attorneys and members of the board discussed them. After the ballots in each precinct were counted, the clerk put the voted ballots back in the original brown paper package, sealed the package with scotch tape, placed the package in the canvas bag and tied them with a heavy string. The clerk tied each bag with two knots, a clove hitch and a square knot. He put each bag in its box and stacked them in the corner. On the discovery recount the clerk did not count any spoiled or defective ballots which had been contained in the envelopes marked spoiled or defective.

After the recount of April 15, 1965, the ballots remained in the boxes stacked in the same place in the town clerk’s office until April 23, 1965, when they were turned over to Sheriff Paul Smith.

The town clerk testified that on April 6, 1965, other ballots, being the unused ballots, were brought to him by the election judges. They were separated by the clerk from the voted ballots, removed from the boxes and placed in one big box. The unused ballots were not picked up by the sheriff but were kept in the one big box and were in the town clerk’s office at the time of the trial. The unused ballots were not examined during the discovery recount.

Mrs. Alma Crum, plaintiff, was the incumbent town supervisor and had her office in the same building in the same room as the town clerk’s office. The boxes containing the ballots were separated from the supervisor’s desk by a cabinet. Mrs. Alma Crum did not touch the ballots during the discovery recount. When the town clerk delivered the boxes to the sheriff he put scotch tape around them.

At the time of the trial each box was handed to the clerk and examined and stated to be in the same condition as when handed to the sheriff on April 23rd, and each canvas bag was stated to be in the same condition as when retied by the clerk at the time of the discovery recount on April 15th. During the recount in court, the bag was cut separately as each precinct was counted, and each brown paper package containing the ballots removed, the seal broken and the package opened. At the trial the tally certificates, applications for ballots, and envelopes containing spoiled and defective ballots were observed, and in each case by precinct the ballots were rewrapped, resealed, replaced in the bag and replaced in the box. Before opening each bag, the clerk testified that it was tied in the same way he tied it on April 15th.

There was no evidence offered of any tampering with the ballots and there was no physical indication that this had happened.

This court has compared the results of the ballots counted on the canvass, and the ballots counted by the court on trial, without regard to the rulings of the court on the ballots objected to at the trial. It appears to this court that the canvassing board and the trial court had to examine the same ballots. The applications for ballots and total ballots observed appear to conform in every instance except as herein noted. In Ward 3, Precinct 2, there are two more ballots than applications. There was one torn ballot loose in the bag but not marked spoiled, and the envelope for spoiled ballots stated that one was contained therein but none was found therein. In Ward 6, Precinct 1, there were three more ballots stated to be cast than applications. There were 260 applications. However, three ballots were not counted for either candidate, and three were contained in the defective ballot envelopes and not counted. Whether a judge misinterpreted the count in stating that 263 ballots were cast is unknown. Only 260 ballots were counted and only 257 counted for the candidates with three counted for neither candidate. In Ward 8, Precinct 2, there was one more ballot noted as cast than the applications. However, one spoiled ballot, so marked on the envelope, was not found and could possibly have been counted in the votes cast.

The tally of votes applied for, cast, counted and observed was so close as to confirm the other testimony that the ballots had been properly preserved.

We do not agree that the testimony shows that unauthorized persons had access to the ballots. In nearly every case it is possible that someone who was not authorized could have access to the ballots. We believe that this principle must be taken to mean access which would enable one to tamper with the ballots without the result being observed. All of the facts and circumstances must be considered. Any person who tampered with the ballots in this case would have to untie the bags or cut them and unwrap the sealed packages of ballots and reseal them. In the case of Talbott v. Thompson, 350 Ill 86 at p 92, 182 NE 784, the public was admitted to the vault to examine other records without restraint, the bags containing the ballots were open and unsealed, part of the ballots were stacked against a grill and a hand could be inserted between the bars and persons in the vault could have access to ballots without being observed by the clerk in charge of the office. In Bolton v. Whalen, 350 Ill 50 at 57, 182 NE 780, there were broken seals on bags, numerous erasures on tallies not made by a clerk of the election, bags opened and resewed, resealed bags, finger prints on ballots which had been clear and other evidences of tampering. We think the present case more nearly approaches the factual situation in Bullman v. Cooper, 362 Ill 469 at 472, 473, 200 NE 173.

It is next contended by the defendant that the trial court erroneously excluded 20 ballots in Precinct 3 of Ward 2 upon the ground that the ballots did not contain initials of an election judge. Exclusive of these 20 votes, appellant Green gained 6 votes on the court recount and appellee Crum gained 8 votes. Therefore, except for these 20 uninitialled ballots (of which 16 were voted for Green and 4 for Crum) being excluded, Crum would have remained the victor. The 20 uninitialled ballots are said to be absentee voters, because the ward and precinct designation was printed on ballots of those who voted at the polls, and an ink designation of the ward and precinct was placed on absentee ballots. Appellant offered to bring in the absentee voters to show how they voted. It is contended that the voter should not be deprived of his right to vote because of the failure of the judges to initial the ballot. We hold that the case of Morandi v. Heiman, 23 Ill2d 365, 178 NE2d 314, is controlling and that the trial court was correct in rejecting the uninitialled absentee ballots in Ward 2, Precinct 3. In addition to this authority, it occurs to us that to identify particular ballots or groups of ballots by marks and to permit testimony of the alleged voters of these ballots as to how they voted would create additional undesirable policy problems with regard to elections.

Appellant contends that it could be established by party affiliation which candidate the absentee voter voted for and cites Talbott v. Thompson, 350 Ill 86 on 97, 182 NE 784. We do not interpret this case to mean that an uninitialled ballot may be counted because the case holds the contrary. The question in the Talbott case was rather what votes should be eliminated.

Defendant further contends that spoiled ballots were mixed with good ballots. Since defendant’s tabulation shows that only two spoiled ballots could have been mixed with good ballots (because 2 spoiled ballots that were supposed to be in envelopes were not found), these could not have changed the result of the election. Neither would crediting every irregular finding in reference to Ward 3, Precinct 2, Ward 6, Precinct 1, and Ward 8, Precinct 2 against appellee Crum give the election to appellant Green.

Defendant also contends that since no accounting was made of the unused ballots, such were not properly preserved. Assuming, as we do, that an unused ballot is a totally unused ballot, even if such ballot was mixed with good ballots, this fact, although constituting an irregularity, cannot affect the count of the election. The evidence does show that the unused ballots have been preserved, however informally. Chap 46, § 17-16 (Ill Rev Stats 1963), provides that unused ballots and ballots “spoiled by voters while attempting to vote” shall be returned by the judges to the authority charged with distributing the ballots, and that such shall be preserved for two months. There is no such specific statutory requirement as found in Chap 46, § 17-20 (Ill Rev Stats 1963), with regard to ballots that have been in the ballot box, i. e., ballots which have been counted or which have been designated defective or objected to. As to these there are specifications for wrapping and sealing and securing them in a sealed canvas cover with provision for immediately delivering them to the responsible clerk by two of the judges.

There being such an apparent distinction in the statutory provisions, it would seem that § 17-16 regarding the preservation of unused ballots is essentially directory, for such section does not expressly provide that the unused ballots shall be preserved in a prescribed manner, and it does not appear that the irregularity renders doubtful the evidence upon which the result is declared. Morandi v. Heiman, 23 Ill2d 365, 178 NE2d 314.

Lastly, defendant contends that since appellee Crum was an elected officer who had a key to the office where the ballots were kept, the ballots were automatically not properly preserved. We cannot agree that in every case where an elected officer could obtain access to the ballot packages, the ballots are not properly preserved. Each case of ballot preservation is a matter of proof by the contestant. We believe that in this case the testimony shows the preservation of the ballots as nearly as they could be in their original form. That care was taken at each step to so preserve them is undisputed. The court count is so close to the canvass count except for the known changes based upon rulings on particular ballots as to be confirmatory of the testimony as to preservation of the ballots.

The judgment of the Circuit Court of Coles County is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    John Seidelman and Margaret Seidelman, Plaintiffs-Appellants, v. County of Kane, Carl M. Carlson, County Zoning Enforcement Officer, The Chairman and The Board of Supervisors of Kane County, Illinois, a Body Politic, Defendants-Appellees.
    Gen. No. 65-55.
    Second District.
    April 14, 1966.
    Richard W. Husted, of Elgin, for appellants.
    C. William Richards, of Aurora, and William R. Ketch-am, State’s Attorney, of Geneva, for appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court for the 16th Judicial Circuit, Kane County, wherein the Chancellor denied plaintiff’s request for a declaratory judgment that the Kane County Zoning Ordinance was unconstitutional and void as it applied to plaintiff’s property.

The plaintiffs inherited a four acre rectangular tract of land having a 200-foot frontage on Rural Street and being approximately 880 feet deep. The tract is located approximately 1,000 feet East of the corporate limits of the City of Aurora. At that time the entire four acres were classified as an -F- or farming district. In 1958 plaintiffs petitioned to have the front two acres rezoned to a B-3 or business district classification to permit them to use the land in connection with a boiler repair business. This zoning was granted. Subsequent to this rezoning, plaintiffs applied for a permit to operate a trailer court on these two acres, which permit was granted. Since then down to the present time, the front two acres have been used as a trailer park with 50 trailers in the park.

The two acres subject to this proceeding are to the North of the existing trailer park. This property has no access to any street or thoroughfare other than through the existing two acre trailer park. If the rezoning is permitted, plaintiff intends to modernize the trailer park to accommodate approximately 76 new, modern mobile homes. Immediately to the South of the subject property, across Rural Street, is another existing trailer park which appears to be about 2% times the size of plaintiff’s existing park. On the South side of Rural Street, to the West, the property is zoned for business and industry and adjacent to the trailer park on the South side of Rural Street is a storage yard on which is kept well digging equipment. Approximately 1,000 feet to the East of the subject property, on the North side of Rural Street, is an area zoned for business. In the immediate vicinity over 80% of the land appears to be vacant; there being several scattered residences in the surrounding area'.

The plaintiff’s property is surrounded by an area designated as farming by the Kane County Zoning Ordinance, except to the South, which is industrial. The Plan Commission of the City,of Aurora has adopted a development and general land use plan for the City indicating that for approximately 2,000 feet on the North side of Rural Street a 500 foot strip is to be utilized as light industry, the center of which strip appears to be the existing trailer camp of the plaintiff. The general area appears to have no consistent zoning pattern.

Witnesses for plaintiff testified that the highest and best use of the subject property would be for a trailer park. One of plaintiff’s witnesses, Edward Corbett, the Executive Director of the Illinois Mobile Home Association, testified that mobile home parks as small as plaintiff’s existing one are becoming less and less feasible economically in view of the development and use of the larger, more modern mobile homes. Edward M. Kyser, a realtor and appraiser, called by defendants, testified as to the value of several of the residences in the general area but did not testify as to the diminution in such values, if any, which would result if the request for rezoning was granted. Thornton K. Ware, the Director of Planning for Kane County Planning Department, testified that in his opinion the highest and best use of the land in this area was for single family residences. On cross examination he testified that no permits to build residences in this area were now pending nor had any been sought or issued within the past five years.

As defendants have stated, the burden of proof is upon the property owner challenging the ordinance to show that as applied to his property the ordinance is arbitrary and unreasonable and without substantial relationship to the public health, safety, morals or general welfare. Kelley-Williamson Co. v. City of Rockford, 61 Ill App2d 482, 486, 209 NE2d 681; Lapkus Builders, Inc. v. Chicago, 30 Ill2d 304, 309, 196 NE2d 682. On the other hand, however, where the evidence shows that the gain to the public is small compared to the hardship imposed upon the individual property owners, this burden may be sustained. Dalkoff v. City of Rock Island, 17 Ill2d 342, 347, 161 NE2d 292; La Salle Nat. Bank v. County of Cook, 12 Ill2d 40, 46, 47, 145 NE2d 65. Here the plaintiff does not seek to introduce a new zoning classification into the area but merely seeks to extend an existing classification to cover this additional two acres, which is locked off from any access to a public thoroughfare. Immediately to the South there is another larger trailer park which apparently has been in operation for many years. While the defendants presented evidence as to the values of some of the existing private residences, there was no testimony as to how much those values would be diminished should the subject property be rezoned, nor was there any evidence that the extension of the trailer park would be detrimental to the public health, safety and morals.

The facts in Kuiken v. County of Cook, 23 Ill2d 388, 178 NE2d 338, were substantially similar to those before us. In that case, at Page 395 the Court said:

“We carefully examined the entire record in the light of these particulars and find that the undisputed and substantial damage to plaintiffs by the present ordinance is not balanced by the benefit to the general public. We find no evidence that there is any substantial diminution of value of neighboring residences. While such damage would usually occur by the extension of a trailer park or the creation of a new trailer park, in the case at bar the existing trailer park facilities are numerous and extensive and we feel that they have already accomplished as much detriment to the adjoining area as could be caused by the present extension. (Citation omitted.) We, therefore, feel that the harm to the individual property owner caused by the enforcement of the present zoning ordinance is not balanced by a benefit to the public, and the zoning ordinance, as applied to the subject property, must be declared void. (Citations omitted.)”

The defendant seeks to distinguish the Kuiken case, supra, from the case before us by pointing out that the premises in the Kuiken case were zoned commercial on either side and that the residential area was to the East or to the rear. In the case at bar the area to the North is residential, the area on either side is classified as farming and the area to the South commercial. We do not consider this difference as being substantial, nor do we consider the failure to introduce testimony that the premises in question had a substantial value if used for a trailer camp and little or no value if restricted to residential as being controlling. The evidence disclosed that the tract is inadequate for farming. It has no ingress or egress for residential purposes. There is evidence that an extension of the present operation would be profitable. We, therefore, conclude there are sufficient facts in this record to substantiate that the extension of the trailer camp operation would enhance the value of the property. Applying the principles set forth in the Kuiken case we conclude that the zoning ordinance of Kane County regarding the subject property must be declared void.

The judgment of the trial court is reversed and remanded with directions to the court to hear further evidence relative to the extent to which the plaintiffs propose to use such premises for an expansion of the trailer court operation thereon and to enter an appropriate decree permitting such expansion of use, which decree shall give due consideration to such expanded use of plaintiffs’ property and the compatibility of such use to the uses of the surrounding property. Harshman v. City of DeKalb, 64 Ill App2d 347, 212 NE2d 146.

Reversed and remanded with directions.

MORAN, P. J. and DAYIS, J., concur.


text:
    Carl Calacurcio, Plaintiff-Appellee, v. Charles Levson and Joe Ella Levson, Husband and Wife, and Robert T. Scott, Trustee, Defendants-Appellants.
    Gen. No. 65-100.
    Second District.
    April 18, 1966.

      Brown, Connolly, Paddock and Roszkowski, of Rockford, for appellants.
    Thomas and Kostantacos, of Rockford, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of Winnebago County wherein the court adjudged plaintiff entitled to an equitable lien in the amount of $3945.39 in and to certain premises owned by defendants, Charles Levson and Joe Ella Levson. The remaining defendant appears to be Trustee under a trust deed to the property and we are not required to consider his interest in determining the issues before us.

The Levsons are owners of an improved parcel of property located in the City of Rockford. By two contracts, one under date of August 5, 1964, and one under date of August 6, 1964, they entered into an agreement with a contracting company, owned by James Wiseman, to make certain remodeling improvements upon the premises. The total contract price was to be $4,600 with $920 down payment. The contract provided the work was to be completed on or before November 6, 1964. What happened thereafter is in dispute.

The plaintiff testified the Levsons came to him, and because of their distrust of Wiseman, asked him if he would handle the financial pay-outs under the contract. According to his testimony, they gave him the $920 down payment and assured him that they expected to receive a loan from the Central National Bank. He agreed to help them and started making pay-outs. When the $920 was exhausted, he asked for more money. They advised him the loan had not been approved as yet, and requested that he advance moneys to them so that the remodeling could be sufficiently completed to permit securing the loan. He agreed. In his complaint he alleged that he had expended $4,225.39 of his own money in paying the contractor, some of the workmen and material suppliers. While the defendants admitted they had given him the $920, they denied ever requesting him to advance any of his own money; denied they had ever told him they expected a loan; and denied that Wiseman had finished the job.

Wiseman testified as to the execution of the contract, the request for additions above and beyond the contract and as to the completion of all but a small part of the remodeling before they discharged him for failure to complete the work before November 6, 1964. As to the negotiations with plaintiff, his testimony supported that of plaintiff rather than that of defendants.

Plaintiff filed his complaint in two counts. In Count I he sought to enforce a mechanic’s lien as subrogee of Wiseman and the others for whose labor and materials he had paid. In Count II he sought to impress upon the property an equitable lien. The defendants filed a counterclaim in which they claimed that plaintiff owed them $750.30 because Wiseman had not finished the work. The court, on motion, dismissed the counterclaim. After hearing the testimony and examining the evidence the court dismissed Count I and entered the order referred to above on Count II of the complaint.

The primary issue is whether the court erred in finding that plaintiff was entitled to an equitable'lien. As this court held in Marshall Savings & Loan Ass’n v. Chicago Nat. Bank, 56 Ill App2d 372, at Page 378, 206 NE2d 117:

“The essential elements of equitable liens include (1) A debt, duty or obligation owing by one person to another, (citing cases) and (2) a res to which that obligation fastens, which can be identified or described with reasonable certainty. (Citing cases.)”

The defendants concede that equitable liens may arise by implication, but on the other hand, assert that because the tendency is to limit rather than extend the doctrine, the agreement to create an equitable lien must be either in writing or must clearly show the parties intended to make the property stand as security for the debt. While the cases they cite make such statements, they are dealing in situations clearly distinguishable from that before us. Crane v. Caldwell, 14 Ill 468.

The trend of modern decisions is to hold that in the absence of an express contract, a lien based upon the fundamental maxims of equity may be implied and declared by a court of equity out of general considerations of right and justice as applied to the relationship of the parties and the circumstances of their dealing, Sentel v. James, 16 Ill App2d 373, 148 NE2d 22. An equitable lien is the right to have property subjected in a court of equity to payment of a claim. It is neither a debt nor a right of property, but a remedy for a debt. Watson v. Hobson, 401 Ill 191, 201, 81 NE2d 885. In this case the trial court determined that plaintiff had expended his own money for the improvement of property belonging to the Levsons and that he did so at their request. To permit them to enjoy the benefits of the improvements without impressing a lien on the property in favor of the plaintiff would constitute unjust enrichment. It is a general rule that if a stranger makes an improvement on land of another, the improvement becomes the property of the owner of the land. In equity, if the owner stands by and permits another to spend money in improving the land, there is an implied promise that the owner will pay the reasonable value of the improvements. Pope v. Speiser, 7 Ill2d 231, 235, 236, 130 NE2d 507. It must follow that when one requests a stranger to improve the land, equity will afford that stranger a just remedy for the debt thereby created.

Defendants’ final contention is that the trial court was mistaken in arriving at the dollar amount of the lien. Plaintiff introduced over 40 exhibits, some of which were cancelled checks and others which were receipts. It appears that the amount of the lien as determined by the court is within the total of the amounts represented by these exhibits. Under the circumstances of this case we are not inclined on review to substitute our judgment, discretion or ability to add and subtract, for that of the trial court.

Absent a more forceful showing of wherein the court erred and for the reasons expressed, the judgment is affirmed.

Judgment affirmed.

MORAN, P. J. and DAVIS, J., concur.


author: MR. JUSTICE DAVIS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Paul Stevens, Defendant-Appellant.
    Gen. No. 65-49.
    Second District.
    March 14, 1966.

      Robert P. O’Meara, of Waukegan, for appellant.
    Bruno W. Stanczak, State’s Attorney, and Jack Hoogasian and Robert J. Smith, Assistant State’s Attorneys, all of Waukegan, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

Defendant-appellant, who was jointly indicted with Bentley F. Pinley for the crime of burglary, entered a guilty plea; was denied probation and was sentenced to the penitentiary for a term of not less than two nor more than six years.

On appeal, he contends that the court erred in permitting him to proceed at arraignment without counsel, and in permitting him to enter a plea of guilty; that the record contains no facts from proceedings had in open court indicating that he understood that he had a right to counsel or understandingly waived that right at arraignment, and is devoid of any facts from proceedings had in open court upon which the court could have found that he understood the nature of the charge against him, and the consequences thereof; and that the sentence is unduly severe.

In order to determine the merits of defendant’s contentions, we have carefully examined the record. Defendant and Pinley were present in open court on February 19, 1964, and each were furnished with a copy of the indictment charging them with the offense of burglary, committed in Waukegan, Lake County. A list of the witnesses was on the back of each copy of the indictment, and each of them received a list of jurors and a copy of the signed statement which each had respectively given. Each told the court his age and acknowledged receipt of the foregoing items.

The Court then inquired, and was told by said parties that they did not have a lawyer. Pinley told the court he would not know whether he could hire a lawyer until after he was out on bond. The defendant stated he had no way of getting an attorney, and the court asked the State’s Attorney to interrogate him in order to determine if he was indigent. The interrogation indicated indigency and the following colloquy then occurred:

“The Court: Q. Mr. Stevens, are you asking the Court to appoint the Public Defender to represent you in this action?

A. No, sir. I don’t think that will be necessary.

Q. You want to proceed without counsel ?

A. Yes, sir.

The Court: All right.

As far as Mr. Pinley is concerned, how much time would you need?

Mr. Pinley: As much as possible, sir.

The Court: Have we fixed bond in this matter ?

Mr. Hoogasian: Yes.

The Court: What is the amount ?

Mr. Hoogasian: Six thousand dollars.

The Court: Are you prepared to make bond ?

Mr. Pinley: Well, I will be later on. I contacted some people in Chicago and they are contacting Mr. Fitzpatrick, the bondsman.

The Court: We will continue this further proceeding toward arraignment, and if the bond question can be worked out meanwhile, you can come before the Court. . . .

The Court: All right, Friday, 9:15 as far as Pinley is concerned.

Mr. Hoogasian: Is Mr. Pinley going to get an attorney ?

The Court: He said if he gets out on bond, he will be able to get an attorney. At that time, we will take up that question.

Mr. Hoogasian: At this time, in reference to Stevens, People move for an arraignment.

The Court: Mr. Stevens, you are charged on the 15th day of February in the year of our Lord 1964, in Lake County, with the offense of burglary in that:

(Court reads substance of the indictment.)

Now, burglary is defined in the statute as: ‘A person commits burglary when, without authority, he knowingly enters into, or without authority remains within a building, housetrailer, watercraft, aircraft, railroad car, or any part thereof, with intent to commit therein a felony or theft.’

Do you understand what the charge is ?

Mr. Stevens: Yes, sir.

The Court: And the penalty set forth in the statute: ‘A person convicted of burglary shall be imprisoned in the penitentiary for an indeterminate term with a minimum of not less than one year.’

You understand what the penalty is?

Mr. Stevens: Yes.

The Court: Do you know what an indeterminate term is?

Mr. Stevens: Yes.

The Court: What is it ?

Mr. Stevens: It is an indefinite sentence.

The Court: The minimum is one year and the rest depends upon your behavior in the penitentiary. You understand that?

Mr. Stevens : Yes.

The Court: You also understand you have & right to be tried by a jury ?

Mr. Stevens: Yes, sir.

The Court: Have you made up your mind as to what plea you will make to the charge of burglary?

Mr. Stevens: I plead guilty, sir.

The Court: Before the Court will accept your plea, in áddition to the other rights, you have a right to have a counsel of your own choice, or the Public Defender if you are eligible for it, as you appear to be.

Are you giving up those rights ?

Mr. Stevens: Yes, sir.

The Court: Has anybody made any promise to you to induce you to enter this plea?

Mr. Stevens: No, sir.

The Court: And you know they would not be binding on the Court even if they were made ?

Mr. Stevens: That’s true.

The Court: Has anybody threatened you or given you any other reason of any kind to enter a plea of guilty?

Mr. Stevens: No, sir.

The Court: Do you still wish to enter the plea?

Mr. Stevens: Yes, sir.

The Court: All right; the Court having advised the Defendant of his rights and the Defendant having persisted in his plea of guilty, the Court will accept the plea of guilty and enter judgment on the plea of guilty.”

Section 113-3 of the Criminal Code (Ill Rev Stats 1963, c 38, par 113-3) provides that every person charged with an offense shall be allowed counsel before pleading to the charge; and that if the defendant has been unable to obtain counsel before arraignment, the court shall continue the cause for a reasonable time to permit the defendant to obtain counsel and consult with him before pleading to the charge.

The trial court carried out these provisions in letter and spirit. The cause was continued to allow Pinley to determine if he could obtain counsel, and the defendant, when asked if he was requesting the court to appoint counsel for him, replied that he would proceed without counsel.

The admonishments in question are also subject to the pertinent provisions of Supreme Court Rule 26 (Ill Rev Stats 1963, c 110, par 101.26(2) and (3)). These subsections prescribe that in all criminal cases in which an accused, upon conviction, may be punished by imprisonment in the penitentiary, the court, at the time of arraignment and before receiving any plea, shall advise the accused of his right to counsel, and if accused desires counsel and states under oath that he is unable to employ counsel, the court shall appoint counsel for him; and that the court shall not permit a plea of guilty or a waiver of counsel unless from proceedings had in open court, the court finds that the accused understands the nature of the charge against him and its consequences and that he has a right to counsel, which right he understandingly waives.

In our opinion, from the proceedings had in open court, the sum of the colloquy indicated that the defendant understood the nature of the charge against him, the consequences thereof if found guilty, and that he had a right to counsel — which he understanding^ waived. After explaining to the defendant the nature of the charge against him and its consequences, and before accepting his plea, the court further advised the defendant of his right to counsel, and the defendant persisted in giving up such right. Even then, before accepting the plea of guilty, the court asked the defendant a series of questions to ascertain whether such plea was being made because of any promises or threats. It was only after defendant assured the court that his plea was voluntary, that the court accepted the plea. We find no fault with the total procedure.

The defendant now argues that the trial court erred in permitting him to proceed at arraignment without counsel. However, under Illinois law, a defendant may waive counsel. The condition on which a waiver may be accepted is that it shall represent an understanding and intelligent act by one having full knowledge of his right to counsel. The People v. Burson, 11 Ill2d 360, 372, 143 NE2d 239 (1957). We believe defendant’s waiver of counsel met these conditions.

Defendant also urges that the trial judge incorrectly stated the law when he said: “The minimum is one year and the rest depends on your behavior in the penitentiary.” However, when we consider this statement in context with the total admonishment, including the statutory definition of burglary and its penalty, we find no merit in defendant’s contention.

The pertinent- purpose of Supreme Court Eule 26, which requires that the court shall not accept a plea of guilty or a waiver of counsel without adequate admonishment, is to provide a procedure which will eliminate any doubt that the accused understands the nature of the charge against him and its consequences; and to preclude the accused from entering a plea of guilty or waiving the right to counsel without full knowledge and understanding.

The object of the admonishment of the defendant is to inform him of the consequences of his plea of guilty and to give him a right to withdraw such plea if, after hearing the consequences, he desires to do so and be tried by a jury. The People v. Kontopoulos, 26 Ill2d 388, 390, 186 NE2d 312 (1962). We believe the admonishment of the court was more than adequate to accomplish these objects and purposes; and that it complied with the pertinent provisions of section 113-3 of the Criminal Code and of Supreme Court Rule 26.

The defendant further argues that the sentence was unduly severe. Upon motion by defendant, the court vacated the original sentence of not less than three nor more than eight years in the penitentiary, and reduced the term to not less than two nor more than six years. Defendant claims this reduced sentence to be excessive.

The hearing on aggravation and mitigation indicated that defendant had been in various penal institutions since 1941 — when he was 17 years of age. The charges varied — including burglary, petty larceny, drunkenness, forgery and shoplifting. Defendant was addicted to the use of alcohol; considered this a dominant cause for his problems, and was without any family to assist him. The evidence before the court would take defendant out of the classification of a first offender, and would cause him to be considered as a poor probationary risk.

While under section 121-9 (b) (4) of the Criminal Code (Ill Rev Stats c 38, § 121-9 (b) (4)), this court may reduce the punishment imposed by the trial court, it should exercise such power with caution. In the case at bar, the trial judge saw the defendant and heard all evidence at the hearing on aggravation and mitigation. He was in a far better position to appraise the moral character, life, family, occupation, integrity, capacity and criminal record of the defendant and to evaluate the likelihood of his rehabilitation, than the reviewing court. If substantial reasons are offered, a sentence should be reduced in a proper case, but, if within statutory limits, it should not be changed because the reviewing court would have imposed a different penalty or for mere judicial clemency. People v. Valentine, 60 Ill App2d 339, 355, 356, 208 NE2d 595 (1st Dist 1965).

Section 121-9 (b) (4) did not change the standard to be employed by the reviewing court in determining whether a sentence was manifestly excessive. (People v. Hobbs, 56 Ill App2d 93, 99, 205 NE2d 503 (1st Dist 1965)). That standard was defined by the Supreme Court in The People v. Smith, 14 Ill2d 95 (1958), at page 97, 150 NE2d 815, as follows:

“Where it is contended that the punishment imposed in a particular case is excessive, though within the limits prescribed by the legislature, this court should not disturb the sentence unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit and purpose, or that the penalty is manifestly in excess of the proscription of section 11 of article II of the Illinois constitution which requires that all penalties shall be proportioned to the nature of the offense.”

The sentence imposed in the case at bar was within the minimum and maximum limits prescribed by statute. On motion, it was reduced by the trial judge.

The court, in discussing the judicial discretion which is vested in the trial judge, stated in Smith, supra, at page 98, as follows:

“In passing sentence upon a guilty criminal the trial judge is invested with judicial discretion within the limits of punishment fixed by law. If that discretion has not been abused and if the prisoner at the bar has not been materially prejudiced by the procedure which the court adopts in conducting the inquiry required by the Criminal Code this Court will not interfere with the judgment pronounced. People v. Riley, 376 Ill 364. People v. Schmidt, 10 Ill2d 221, 229.”

It is true that Pinley was granted probation for the same offense, but Pinley was younger — a better probationary risk — and his probation was subject to stringent conditions. In addition, the trial court apparently was influenced by Pinley’s family and job status. However, the variance in the sentences does not in itself indicate an abuse of discretion by the trial court. The People v. Marose, 10 Ill2d 340, 343, 139 NE2d 735 (1957); People v. Mitchell, 57 Ill App2d 238, 243, 205 NE2d 655 (2nd Dist 1965). In view of all circumstances in this case, we find no abuse of discretion by the trial court in imposing sentence on the defendant. Consequently, the judgment is affirmed.

Judgment affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Roy Johnson, Defendant-Appellant.
    Gen. No. 65-101.
    Second District.
    March 21, 1966.

      John E. Juergensmeyer, of Elgin, for appellant.
    William R. Keteham, State’s Attorney, and Barry E. Puklin and Gene Armentrout, Assistant State’s Attorneys, all of Elgin, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The question involved in this appeal is whether this court should reduce the punishment imposed by the trial Court upon the defendant, Roy Johnson, pursuant to the power granted to it under section 121-9 (b) (4) of the Criminal Code. (Ill Rev Stats 1963, c 38, par 121-9 (b) (4).)

Centrick Marshall, Martha Burks and Roy Johnson, the defendant in this appeal, were indicted for robbery. A nolle prosequi was entered as to Martha Burks and she became a State’s witness. The Public Defender was appointed as counsel for the defendant and Marshall, and each of them entered a plea of not guilty. Upon motion of the defendant and Marshall, separate trials were granted to them. Marshall was tried before a jury, and a guilty verdict was returned against him.

Thereafter, the defendant, upon advice of counsel, waived jury trial and changed his plea to guilty. Such plea waived any defect, not jurisdictional, and admitted all facts charged in the indictment. It obviated the necessity of any proof whatsoever, and on the question of guilt, no issue remained and there was nothing to try. The People v. Grabowski, 12 Ill2d 462, 466, 147 NE2d 49 (1957); The People v. Terry, 12 Ill2d 56, 60, 145 NE2d 36 (1957).

Both the defendant and Marshall made application for probation, which was denied, and both were sentenced to the penitentiary for a period of not less than three nor more than six years. The defendant appealed from this judgment, and in this Court urges the reduction of his sentence.

The Presentence Investigation Report, which was submitted by the Probation Officer, stated:

“Offense: On September 12th, 1964, at about 10:00 p. m., the defendant Roy Johnson and co-defendant Centrich Marshall, met Roger Thompson, the victim in this case, in the Crystal Lounge, North Broadway, Aurora, Illinois. Thompson stated that he had a sexual urge and defendant Johnson and Marshall told him that they could take care of him but that it would cost him $10.00. The price was agreed on and the trio went to the American Legion Hall, Kane Street, Aurora, Ill., in Thompson’s car, a 1962 Corvair coach. Co-defendant Marshall got out of the car and came back with Martha Burks. The four drove out into the country and parked. Marshall told Martha Burks to make love to Thompson for the money and Johnson and Marshall got out of the car. A short time later Johnson and Marshall came back to the car and removed Thompson. Thompson was hit on the head and knocked to the ground and his billfold containing $65.00 plus his car keys were taken from him. Johnson, Marshall and Burks then left in Thompson’s car. Defendant Johnson was arrested September 18th, 1964 and has spent 162 days in the Kane County jail at Geneva, Illinois.
“Summary: It has been brought to our attention that this defendant, Roy Johnson, while incarcerated in the Kane County jail, has been a constant problem and that Chief Deputy Harry Booth will testify to same. Due to the nature of this crime, coupled with the defendant’s behavior while confined in the county jail, this office considers him to be a poor risk therefore we can only recommend that probation in this case be denied.”

At the hearing on Aggravation and Mitigation, the defendant testified that he was 17 years old on August 5, 1964, a graduate of the 7th grade, had no prior criminal record and was unemployed at the time. He further testified that he did not strike the complaining witness and that when he went with Marshall, he did not realize what was going to take place. This latter testimony was discredited by his plea of guilty.

Counsel urged that defendant was retarded in his mental development, was weak in his ability to resist and was, in effect, a dupe and an innocent bystander with respect to the crime charged. The latter part of this argument is totally inconsistent with the defendant’s plea of guilty.

Counsel further contends that defendant’s sentence is harsh and excessive in that defendant was 17 years of age and was before the court on his first offense; and that the court abused its discretion in giving identical sentences to the defendant and Marshall.

Section 1-7 (g) of the Criminal Code (Ill Rev Stats 1963, Ch 38, par 1-7 (g)), provides:

“For the purpose of determining sentence to be imposed, the court shall, after conviction, consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if any, as to the moral character, life, family, occupation and criminal record of the offender and may consider such evidence in aggravation or mitigation of the offense.”

In construing predecessor statutory provisions relative to the hearing on aggravation and mitigation after a verdict or plea of guilty, it has frequently been held that in determining the degree of punishment to be inflicted, the court is not bound by the usual rules of evidence applicable to criminal prosecutions, but may search anywhere within reasonable bounds for other facts which tend to aggravate or mitigate the offense; and that such hearing is not a trial in the ordinary sense. The People v. Mann, 27 Ill2d 135, 139, 188 NE2d 665 (1963); The People v. Bradford, 23 Ill2d 30, 34, 177 NE2d 139 (1961); The People v. Grabowski, supra 466.

A joint hearing on Aggravation and Mitigation was held for the defendant and Marshall. After hearing the evidence which was offered and after denying Marshall’s application for probation, but prior to pronouncing sentence on the defendant and Marshall, the trial Judge stated:

“There isn’t any question these fellows apparently felt they had this white fellow, the victim, in a position where he, being out with a colored girl and these fellows in a rather illicit enterprise, namely the performing of an act of intercourse with her as a prostitute, and he being a white fellow, he was in such an embarrassing position, even if they took the money, he wouldn’t say anything about it because of the shame he might find himself in. But he didn’t choose to do that. He came here and testified and told a straightforward story. Here is the fellow that was beatened (sic) up and he was beaten up severely.
“This fellow Johnson was part and parcel and picked him up in front of the colored Legion on Kane Street in Aurora, and with the girl and the defendant Marshall took him out where he was along in this concerted enterprise in which they , were all actively engaged. It was a serious and wilful violation according to the proof here, and under the circumstances I don’t feel that Johnson should be afforded probation. . . .”

It appears that the trial judge, in the defendant’s hearing on Aggravation and Mitigation, properly took judicial notice of the testimony which he heard at Marshall’s trial. No objection was offered to the statements of the trial judge, and the Report of the Proceedings in the Marshall trial was not offered in evidence. See: The People v. Hancasky, 410 Ill 148, 157, 101 NE2d 575 (1951); In re O’Malley, 404 Ill 257, 258, 259, 88 NE2d 881 (1949); Dandridge v. Northern Trust Co., 218 Ill App 138, 140 (1st Dist 1920). The hearing was not a trial in the ordinary sense of the word, but rather, was an informal proceeding at which the court would consider pertinent matters affecting aggravation and mitigation of the offense charged.

In People v. Stevens, 68 Ill App2d 265, 215 NE2d 147, we considered the application of section 121-9 (b) (4) of the Criminal Code, and the function of the trial and reviewing courts in the sentencing of criminals. At page 273, in referring to the trial judge, we stated:

“He was in a far better position to appraise the moral character, life, family, occupation, integrity, capacity and criminal record of the defendant and to evaluate the likelihood of his rehabilitation, than the reviewing Court. If substantial reasons are offered, a sentence should be reduced in a proper case, but, if within statutory limits, it should not be changed because the reviewing court would have imposed a different penalty or for mere judicial clemency. People v. Valentine, 60 Ill App2d 339, 355, 356 (1st Dist 1965).
“Section 121-9 (4) did not change the standard to be employed by the reviewing Court in determining whether a sentence was manifestly excessive. (People v. Hobbs, 56 Ill App2d 93, 99 (1st Dist 1965).) That standard was defined by the Supreme Court in The People v. Smith, 14 Ill2d 95 (1958), at page 97, as follows:
“ ‘Where it is contended that the punishment imposed in a particular case is excessive, though within the limits prescribed by the legislature, this court should not disturb the sentence unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit and purpose, or that the penalty is manifestly in excess of the proscription of section 11 of article II of the Illinois constitution which requires that all penalties shall be proportioned to the nature of the offense.’ ”

The sentence imposed in the case at bar was within the minimum and maximum limits prescribed by statute.

In the case at bar, defendant’s argument is predicated on the assumption that he was only an innocent bystander in this offense — that he was a dupe and a tool who took no part in robbing and beating the prosecuting witness. However, under the facts of the case, as known to the trial judge from presiding at the Marshall trial, the defendant actively participated in this sordid offense; and the trial judge so found without objection from the defendant. Under such finding, the trial judge, at the aggravation and mitigation hearing, held that there was no difference in the extent of guilt as between the defendant and Marshall; and that the age and first offense factors were not sufficient to warrant a lesser penalty for the defendant. In addition, the trial judge had been apprised by the Presentence Investigation Report, that the defendant had been a constant problem while incarcerated in the Kane County jail.

We recognize that if substantial reasons are offered, a sentence should be reduced in a proper case. However, if the sentence is within the statutory limits, as in the case at bar, it should not be changed because a reviewing court would have imposed a different penalty, or for mere judicial clemency.

Under the circumstances of this case, we find no abuse of discretion by the trial judge in imposing sentence on the defendant. The People v. Smith, 14 Ill 2d 95, 98, 150 NE2d 815 (1958). Consequently, the judgment is affirmed.

Judgment affirmed.

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


author: CRAVEN, J.

text:
    William E. Buckler, Sr., Plaintiff-Appellee, v. Sinclair Refining Company and Donald Harris, Defendants-Appellants.
    Gen. No. 65-37.
    Fifth District.
    April 4, 1966.

      Roberts, Gundlach, Lee & Stubbs, of East St. Louis (Carl W. Lee, of counsel), for appellants.
    Reed, Armstrong & Gorman, of Edwardsville (James L. Reed, of counsel), for appellee.
   CRAVEN, J.

This is a damage suit for personal injuries arising out of an automobile accident. The plaintiff alleged his injuries were sustained as the proximate cause of the negligence of the defendant Donald Harris while acting as the agent of the defendant Sinclair Refining Company. The trial court directed a verdict for the plaintiff and against both defendants on the issue of liability. Thereafter the jury assessed damages in the amount of $95,000. The defendant appeals and requests a new trial on the issue of damages. No issue was raised as to the trial court’s determination of the issue of liability.

The defendant assigns the following errors as a basis for a new trial on the issue of damages:

1. Denial of an independent medical examination pursuant to Supreme Court Rule 17-1.

2. Failure to exclude a witness whose name was not furnished in answer to a specific interrogatory.

8. Evidentiary rulings relating to the question of damages.

4. Improper closing argument on behalf of the plaintiff.

5. Erroneous instructions on the issue of damages.

6. Excessiveness of the verdict.

Because the question of liability is not in issue a recitation of the facts surrounding the accident is not required. A detailed chronology of the pertinent pleadings and discovery practice, including trial and pretrial maneuvers, is important because of the underlying premise of the defendant’s appeal. The defendant contends that the trial court permitted the plaintiff to manipulate the pleadings unfairly, avoid proper discovery, utilize improper evidence and prejudicial argument to obtain a verdict for manifestly excessive damages.

The complaint in this cause was filed on July 29, 1964. Count one alleged certain acts of negligence by the defendant Donald Harris, as agent of the Sinclair Refining Company, which proximately caused permanent injury to the plaintiff’s person and loss of past and future income. The prayer asked damages in the amount of $750,000. Count two alleged wilful and wanton misconduct and sought compensatory damages in the same amount. No claim was made for punitive damages.

On August 18, 1964, the defendant filed certain interrogatories, pursuant to Supreme Court Rule 19-11, requesting the names of all doctors who treated or examined the plaintiff after the accident, together with the total medical expenses to date.

On the same date the defendant moved, pursuant to Supreme Court Rule 17, for the production of the books and records of the plaintiff, including income tax returns.

On September 16, the plaintiff answered the defendant’s interrogatories, listing Dr. Charles Y. Lair, a clinical psychologist, and Dr. J. W. Chambers, a dentist. Total to date medical expenses were stated to be $2,028.83. The report of Dr. Lair was attached. This report disclosed :

“Test signs are consistent with a chronic brain syndrome with anxiety and depression. This is marked by intellectual deterioration, mild disturbances of memory, concentration, comprehension and judgment, and increasing emotional instability. It is my belief that the patient is reacting to brain damage,

On September 18, the defendant requested a continuance to discover the basis for Dr. Lair’s conclusion of brain damage and to obtain an independent medical examination. The continuance was denied.

The cause was originally set for September 23, 1964. The complaint was amended on that date to strike the claim for wilful and wanton misconduct, to change the claim for loss of income to loss of earning capacity, and to reduce the ad damnum from $750,000 to $250,000.

The case began on September 28. A mistrial was declared on September 29, and the trial was reset for October 19.

On the date the mistrial was declared the defendant moved for an additional medical examination relating to the alleged organic brain damage caused to the plaintiff. The plaintiff filed a motion to strike, setting forth that prior to trial the plaintiff had submitted to four independent medical examinations at the defendant’s request.

On October 9, 1964, the trial court denied the defendant’s motion for a physical examination.

The plaintiff, William Buckler, enjoyed good health throughout his life and early in his career played college and professional football, at which time he weighed approximately 250 pounds. At the time of the accident the plaintiff was sixty years old, 6 ft. 1 in. in height and weighed 228 pounds. He was operating his own small industry, Buckler Foundry Company, Inc., in which he, his son and his wife owned all the shares. He was a graduate of mechanical engineering, majoring in metallurgy. All his professional life was spent in the field of metallurgy with Central Foundry, at Hope, Alabama, John Deere and Company, Allis-Chalmers and Mount Clemens Foundry, until he founded his own company. The plaintiff testified he personally supervised the operation and instructed the workmen in their duties.

The physical injuries sustained by the plaintiff, according to the medical evidence and the plaintiff’s testimony, included possible brain damage, loss of grip in the left hand due to severed ligaments and tendons, pain and disability in the left hip, blurred vision, loss of hearing in the right ear, impaired general hearing and balance, a fractured cheek bone with accompanying numbness, constant headaches and sleep disturbances, and numerous lacerations to the face and body.

In the plaintiff’s opening statement it was disclosed to the court that Dr. Marvin Eosecan, a St. Louis internist, would be called as a witness. The defense immediately objected because the name of Dr. Eosecan had not been furnished to the defendant in response to the following interrogatory:

“1. What are the names of all doctors who have seen or examined you since the accident alleged in the complaint, . . . ?”

The name of Dr. Eosecan was given by the plaintiff as a treating and examining physican during a discovery deposition taken by the defense on June 13, 1964, prior to the date suit was filed. The defense contends that, since the plaintiff stated this was during the time he was in the hospital for plastic surgery, they had no opportunity to anticipate the nature of Dr. Rosecan’s testimony.

The question of the appropriate sanction, if any, to be employed by the trial court for failure to list a witness in response to a proper interrogatory is within the discretion of the trial court. Ferraro v. Augustine, 45 Ill App2d 295, 304, 305, 196 NE2d 16. Refusal to employ any sanction is not an automatic abuse of discretion (Nagelmiller v. Seibel, 47 Ill App2d 39, 45, 197 NE2d 457), although the trial court may abuse its discretion in failing to employ sanctions in certain cases (Rosales v. Marquez, 55 Ill App2d 203, 204 NE2d 829). Some of the criteria that should be weighed in determining the appropriateness of a sanction are:

1. The surprise to the opposing party.

2. The good faith of the party calling the witness to notify the opposing party.

3. Equal opportunity and access of the opposing party to interview or depose such witness prior to trial.

4. Prejudice resulting to the opposing party from such testimony.

Since the defendant had knowledge that Dr. Rosecan attended the plaintiff, the defendant was not warranted in assuming what the examination disclosed or the nature of Dr. Rosecan’s conclusions. If there was prejudice or surprise it was, at least in part, due to failure of the defendant to inquire more fully into the nature and significance of this examination.

This question is related to the alleged error involving the court’s failure to allow the defendant an independent medical examination relating to the plaintiff’s claim of organic brain damage. The plaintiff asserts that “good cause” has not been shown in compliance with Supreme Court Rule 17-1. The defendant claims that a denial of the examination was error, contending that “good cause” was shown and because of the element of surprise to it. The defendant’s only medical witness, Dr. Herbert E. Rosenbaum, testified to certain tests given Mr. Buckler which failed to indicate any evidence of brain damage. On cross-examination, Dr. Rosenbaum testified that loss of taste and hearing was not indicative of organic brain damage.

There is no evidence of wilful concealment of an element of damages or of a prospective witness. The plaintiff’s witness was known to the defendant prior to the time that suit was filed. Failure to pursue more exhaustive discovery procedure should not require the exclusion of material evidence or require suspension of all legal proceedings to allow the defendant to obtain expert rebuttal testimony. Perhaps a continuance, another physical examination, exclusion of Dr. Rosecan as a witness were possible appropriate sanctions. However, we cannot say that the trial court abused its discretion in failing to invoke them under the circumstances of this case. Even if we were to find an abuse of discretion by the trial court in a case where there is no question of liability, and where the injuries are serious, the wide latitude afforded a jury in assessing damages would preclude a finding of prejudicial error unless the abuse was clear and the prejudice apparent.

The plaintiff introduced no evidence of medical expense. The defendant then attempted to read into evidence the plaintiff’s answers to interrogatories propounded by the defendant wherein the total amount of medical expense was stated to be $2,028.83. The plaintiff objected and, with leave of court, amended his complaint to delete the claim for medical expense. The court then, on the grounds of immateriality, excluded the defendant’s offer to show the amount of the medical expense. After the close of all the evidence the defense suggested an instruction directing the jury to exclude medical expenses as an element of damages. Instead, the standard damage instruction (IPI sec 30.01, et seq.) was given and the element of medical expenses deleted. No written instruction to disregard medical expenses was actually tendered the trial court by the defense.

The defendant contends that the plaintiff’s answers to the defendant’s interrogatories are binding upon the plaintiff as admissions of a party-opponent. Answers to interrogatories may be used as admissions if the answer is relevant and material to issues in controversy. (Supreme Court Rule 19-11 (4); Supreme Court Rule 19-10(2) (a), (b).) They may impeach an inconsistent position taken by the party at trial or they may have independent evidentiary value in establishing a material element or issue in the litigation. The fact that they may be used as admissions of a party-opponent does not in and of itself make them relevant. McNealy v. Illinois Cent. R. Co., 43 Ill App2d 460, 193 NE2d 879. Discovery has wide latitudé. One of the reasons for such latitude is to define and distinguish the material issues from the collateral. Therefore, every matter which is “fair game” for discovery is not necessarily relevant in light of the pleadings and proof presented at the time of trial.

The defendant further argues that the jury inferred a large medical bill due to the serious injuries of the plaintiff. Medical expenses are not correlated with the nature and extent of a specific injury. A relatively minor injury might require continuing care and attention with all the attendant and cumulative expenses. A severe and permanent loss, such as loss of a limb or bodily function, might result in a minimum of medical expense, especially where the damage is irreparable. There is no evidence here that the plaintiff attempted to recover medical expenses through inference and no circumstances which warrant a negative instruction on a nonexistent issue. Since no such instruction was tendered, no error can be assigned.

The defendant contends that Dr. Lair was not competent to express an expert opinion based upon his examination and testing of William Buckler. The defendant argues that Dr. Lair was not a medical expert and, therefore, could not diagnose or give an opinion on the existence of an organic injury or condition. Dr. Lair is a practicing clinical psychologist in St. Louis and on the faculty of St. Louis University medical school. He obtained his Ph.D. in 1954 from Vanderbilt University. To render an opinion an expert need only possess special skill or knowledge beyond that of the average layman, and the determination of his qualifications rests within the sound discretion of the trial judge. People v. Jennings, 252 Ill 534, 550, 96 NE 1077. The weight to be attached to such an opinion is a question for the jury in light of the expert’s credentials, the facts upon which he bases his opinion and any limitations placed thereon during cross-examination. A clinical psychologist’s credentials have long been recognized as sufficient to allow him to express an opinion in areas not within the realm of ordinary experience. Jenkins v. United States, 307 F2d 637, 643, 644.

The plaintiff originally made claim for loss of past and future income. In his discovery deposition, taken prior to the filing of this suit, the plaintiff testified he had lost income between $10,000 and $15,000. The plaintiff’s tax returns and those of Buckler Foundry Company, Inc., showed an increase rather than a loss in salary or income. The plaintiff later amended his complaint to allege “loss of earning capacity” rather than loss of income, thereby eliminating loss of income as an element of damages. Impairment of earning capacity is a proper element of damage to be considered by the trier of fact. 15 ILP Damages, sec 142, at 528. “Becovery of damages for loss of earning capacity is not merely a recovery for wages lost . . . .” See 25 CJS Damages, sec 87, at 952, and cases there cited.

The defendant claims this is an attempt to obscure the court’s “search for truth.” The only real issue in this case is the extent and nature of the plaintiff’s injury and disability and whether, in light of all the evidence, the jury’s award is excessive. Loss of income and medical expenses were not in issue in this case and the amount of such losses and any inconsistencies or prior admissions regarding them are, at best, collateral to the court’s “search for truth.” Instructions were neither given nor offered, nor was any argument made as to either loss of earnings or medical expenses.

You can neither prove nor disprove the nature and extent of a person’s injury or disability by showing that he was inconsistent, or even untruthful, about an element of damage to which he is laying no claim. An increase in salary in a corporate business where the employee is also the manager and majority shareholder has no essential relationship to earning capacity, and therefore, under this state of the record, evidence of actual income was properly excluded.

Finally, the defendant argues that prejudicial conduct by the plaintiff while testifying and prejudicial closing argument by the plaintiff’s counsel contributed to the allegedly excessive damages awarded by the jury. The plaintiff rubbed his right eye several times while testifying. The defendants requested a recess and demanded a mistrial or that the plaintiff be instructed to discontinue this practice in the presence of the jury. The court instructed the plaintiff not to rub his eye if he could avoid it. The motion for mistrial was denied. The plaintiff informed the court that his vision was dimmed because of an eye spasm. The spasms were testified to previously by Dr. Kinney, an eye specialist. The jury was not recalled until the spasm had ended. There was no evidence that the attack was feigned or done with improper motive. Such conduct, where innocent and partially involuntary, is not grounds for a mistrial unless aggravated and repeated or the effect is so apparent as to have unquestioned influence upon the jury’s ability to try the issues in controversy fairly. The determination of this issue is primarily one for the trial judge, and absent apparent error he will not be reversed. Ellison v. Sinclair Refining Co., 41 Ill App 436, 444, 190 NE2d 635.

The defendant also suggests that the following argument of plaintiff’s counsel introduced a punitive element to the damages sought: “Mr. Buckler is asking you for the sum of $250,000.00. Now, that may or may not be a lot of money to Sinclair, but I say to you . . .” Objection was made by the defendant and sustained by the court; the jury was instructed to disregard the statement. Defense counsel then made a motion for a mistrial which the court denied. Plaintiff’s counsel then resumed his argument, stating: “$250,000.00 is no more than payment for the injuries that they have caused to Bill Buckler. . . .”

The defendant further objects to the following argument of plaintiff’s counsel: “That is why Bill Buckler is asking you for the full amount that he has sued for, not fifty percent, not twenty-five percent, or if you return the verdict here for twenty-five percent of the amount that he is asking, in my opinion, it would be a slap on the wrist and a victory day for Sinclair.” No objection was made at the time to this argument. The defendant now contends that this was a punitive argument and an attempt by the plaintiff to obtain a large verdict by penalizing the corporate defendant. The above arguments were not proper. However, the second argument was not objected to and the first was ruled upon by the court in favor of the defendant. In addition, the plaintiff subsequently qualified his language in the original statement to clarify to the jury that he was seeking only full compensation for the injuries caused to William Buckler.

These quotes are isolated and not illustrative of an attempt by the plaintiff to obtain damages of a punitive rather than a compensatory nature. The interruption of plaintiff’s counsel in argument, the adverse ruling by the court, together with the admonishment to disregard the statement of plaintiff’s counsel, certainly had an adverse effect on any weight the jury might attach to the force of the argument of plaintiff’s counsel to substantiate valid compensatory damages. The court’s ruling was to the defendant’s benefit and cured any error in the original statement. In such case no error can be claimed absent irreparable or incurable prejudice. We find no evidence of such prejudice in this record. The jury’s award was substantial as were the injuries to the plaintiff.

We find no error in this record requiring a reversal for a new trial. The judgment is affirmed.

Judgment affirmed.

TRAPP, P. J. and SMITH, J., concur.