author: MR. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois ex rel. Coojar Realty Corporation, Plaintiff-Appellee, v. Village of Burr Ridge, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 66-128.
    Second District.
    March 29, 1967.

      Hooper, Bowers, Calkins and Carney, of Downers Grove, for appellant.
    Rathje, Woodward & Dyer Associates, of Wheaton, William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Kevin P. Connelly, Assistant State’s Attorney, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

A quo warranto proceeding was filed by relator to challenge the annexation of relator’s property to the Village of Burr Ridge, pursuant to leave granted by the trial court. Leave was given to the State’s Attorney of DuPage County to intervene for the State of Illinois as an additional relator praying for an order of ouster as to a portion of U. S. Route 66 (now 1-55). Both petitions allege the illegality of a previous annexation in 1961 of that highway by the Village.

The cause was heard in the trial court on the basis of a stipulation of facts. Chronologically, the Village had first annexed a portion of Route 66 continuing beyond its then borders in a southwesterly direction for a distance of approximately one-half mile with a width of approximately 300 feet as it adjoined the Village boundaries. In 1966 the Village had annexed certain territory lying to the east and west of relator’s property, using Route 66 as a base for the annexation. Thereafter the Village annexed the 126.5-acre Coojar property as wholly surrounded (except for a two-lot portion, which the Village argues is de minimis).

The trial court’s decree found that the 1961 annexation of then U. S. Route 66 was invalid as a “strip” or “corridor” annexation; that the annexation of the subject property abutting thereon was thereby invalidated; and entered a judgment of ouster as prayed by the State.

This appeal raises the no longer novel question of the meaning of the term “contiguous” as used in section 7-1-10 of chapter 24 of the Illinois Revised Statutes (1961):

“Any municipality by ordinance may annex any territory contiguous to it even though the annexed territory is dedicated or used for street or highway purposes under the jurisdiction of the Department of Public Works & Buildings of the State of Illinois, or a county or township highway department . . .”

The position of the Village on this issue is that the statute does not forbid a highway annexation although it results in adding a “strip” or a “corridor” of property to the village; that the only restriction is the requirement of “contiguity,” and that “contiguity” has been found in both annexation and disconnection precedents wherein the “strip” is of even lesser width than the 300-foot width of the highway here; that the court in each case, under its particular circumstances, can determine whether such areas are “reasonably contiguous.”

This court is of the opinion, however, that cases dealing with annexation and disconnection of privately owned tracts which are neither streets nor highways cannot decide this case. There are precedents which deal directly with street and highway annexations which we cannot disregard.

The Illinois Supreme Court in People ex rel. Adamowski v. Village of Streamwood, 15 Ill2d 595, 601, 155 NE2d 635, has defined “contiguous” as applied to annexation of streets projecting beyond the limits of a municipality:

“The word ‘contiguous’ . . . must be defined in keeping with what was the obvious intention of the legislature, which was to make it permissible for a municipality to annex a roadway where, for example, a roadway separates a municipality from territory just the other side of the roadway, which the municipality needs for existing municipal purposes and for natural growth, even though no part of the roadway already lies within the municipality. Contiguous . . . must mean contiguous in the sense of adjacent and parallel to the existing municipal limits . . .”

While that case involved strips of roadway running in all directions from the village, the language of the opinion, we believe, equally clearly condemns annexation of any roadway which is not adjacent and parallel to a municipality’s boundaries. Such annexation is a forbidden “strip or corridor” annexation.

A similar kind of roadway annexation was held invalid by this court in People ex rel. Nash v. City of Loves Park, 59 Ill App2d 297, 207 NE2d 490 (abstract).

Any doubt that the annexation of just one roadway was to be distinguished from annexation of numbers of roadways was dispelled by the Illinois Supreme Court in People ex rel. Village of Worth v. Ihde, 23 Ill2d 63, 69, 177 NE2d 313, by the court’s statement:

. . these properties were contiguous with Worth only by reason of its 1956 annexation of Southwest Highway for a distance of approximately one-half mile beyond the village boundaries, and the validity of their inclusion is entirely dependent upon the propriety of the highway annexation. We had occasion to recently consider a similar situation in People ex rel. Adamowski v. Village of Streamwood, wherein we held that such annexation of highways beyond the corporate limits did not satisfy the requirement of contiguity . . .”

While the divided opinion of the same court in People ex rel. Village of South Barrington v. Village of Hoffman Estates, 30 Ill2d 385, 198 NE2d 97, may appear to give some support to the Village here, in that the annexation of a road bridging a toll road was upheld although it projected beyond village boundaries, we do not believe that the court intended to retreat from the clear position it had taken in the Streamwood and Ihde cases (supra). Unlike those cases, the court in Hoffman was not dealing with an effort by a municipality to extend a strip or corridor into unincorporated territory for purposes of future growth. There a toll road which, by statute, could not be annexed, although parallel and adjacent to the village boundaries, would have prevented any further growth of the village in a direction and into an area in which it was already furnishing municipal functions, and to which it was connected over an almost three-mile common boundary, which, but for the slash of the toll road, would have constituted a clearly contiguous area. The court did not expressly, nor by any fair implication, reverse its findings in the Streamwood, nor in the Ihde eases, which we believe to be controlling precedents under the circumstances of this case.

While there may be circumstances under which a municipality may have relief from the interposition of an artificial barrier which it may never otherwise surmount, this is not authority for its affirmative effort to extend its restraint of ordinary development of an unincorporated area solely by the mechanism of a roadway which it seeks to project beyond its borders with an eye to the future.

The annexation of relator Coo jar’s property here is dependent on the validity of the prior annexation of the portion of Route 66 projecting beyond its borders. We hold that such roadway annexation as here attempted is invalid.

We have considered the argument of the Village that the relators are barred from asserting the invalidity of the highway annexation under the doctrine of Laches. We agree that consideration of this defense is not foreclosed by the filing of relator’s suit within the time provided by the applicable Statute of Limitations (c 24, § 7-1-46, 111 Rev Stats (1965)). Under the facts stipulated in this case and without a showing of inconvenience or public detriment, the trial court acted within its discretionary powers in issuing the Writ of Quo Warranto and the judgment of ouster. Relator Coo jar acted within 36 days of the purported annexation of its property. The village did not, and could not, exercise any control over the highway and was not damaged by its ouster. These facts distinguish this case from People ex rel. Lindsey v. Board of Education, 3 Ill2d 159, 120 NE2d 887, cited by the Village. See Anno 26 ALR2d 828, 842-845.

We do not find it necessary to rule on the failure to secure the consent of the Governor as to a portion of the roadway owned in fee by the State of Illinois; nor to rule relative to the comparatively small gap in the boundaries of one of the sides of the property in question. The judgment of the trial court is affirmed.

Affirmed.

DAVIS and MORAN, JJ., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DAVIS

license: Public Domain

text:
    La Salle National Bank, a National Banking Association, as Trustee Under the Provisions of a Trust Agreement Dated November 25, 1960, and Known as Trust Number 17797, Petitioner-Appellee, v. Village of Burr Ridge, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 66-104.
    Second District.
    March 29, 1967.

      Corrigan and Mackay, of Wheaton, and Hooper, Bowers, Calkins and Carney, of Downers Grove, for appellant.
    Rathje, Woodward & Dyer Associates, of Wheaton, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is a disconnection proceeding commenced by the petitioner, La Salle National Bank, as Trustee, in which it seeks to disconnect 126.5 acres of land from the Village of Burr Ridge, herein called Burr Ridge. The trial court held that the statutory requisites had been met, and ordered the property disconnected. The defendant, Burr Ridge, appealed.

The relevant statute, III Rev Stats 1965, c 24, section 7-3-6, provides:

“The owner or owners of record of any area of land consisting of one or more tracts, lying within the corporate limits of any municipality may have such territory disconnected which (1) is not contiguous in whole or in part to any other municipality; (2) contains 20 or more acres; (3) is not subdivided into municipal lots and blocks; (4) is located on the border of the municipality; (5) if disconnected, will not result in the isolation of any part of the municipality from the remainder of the municipality, (6) if disconnected, the growth prospects and plan and zoning ordinances, if any, of such municipality will not be unreasonably disrupted, (7) if disconnected, no substantial disruption will result to existing municipal service facilities, such as, but not limited to, sewer systems, street lighting, water mains, garbage collection and fire protection, (8) if disconnected the municipality will not be unduly harmed through loss of tax revenue in the future. . . .
“. . . If the court finds that the allegations of the petition are true and that the area of land is entitled to disconnection it shall order the specified land disconnected from the designated municipality. If the circuit court finds that the allegations contained in the petition are not true, the court shall enter an order dismissing the petition.
“An area of land, or any part thereof, disconnected under the provisions of this section from a municipality which was incorporated at least 2 years prior to the date of the filing of such petition for disconnection shall not be subdivided into lots and blocks within 1 year from the date of such disconnecting. A plat of any such proposed subdivision shall not be accepted for recording or registration within such one year period, unless the land comprising such proposed subdivision shall have been thereafter incorporated into a municipality.”

It is the contention of Burr Ridge that: (1) the disconnection would not be within the legislative purpose as the disconnected property would not resume a rural nature; (2) the petitioner failed to show that disconnection would not unreasonably disrupt the growth prospects and plan and zoning ordinances of the Village; (3) the petitioner failed to show that the disconnection will not result in isolation of any part of the Village from the remainder; and (4) the petitioner’s property is contiguous to another municipality, Willowbrook.

The trial court found that the several statutory requirements for disconnection were established by the evidence. We will not disturb such finding unless it is clearly contrary to the manifest weight of the evidence. Anderson v. City of Rolling Meadows, 10 Ill2d 54, 58, 139 NE2d 199 (1956); Stevens v. Fanning, 59 Ill App2d 285, 294, 207 NE2d 136 (1965).

Burr Ridge argues that the statute contemplates that land, when disconnected, must resume a rural character; that the land is to be freed from the burdens of municipal taxation, restrictions and regulations; and that the land is to be disconnected to permit it to remain in an unincorporated area. This contention appears to be based on certain language in specific cases to the effect that the statute is intended to facilitate the removal of lands from the burdens imposed by a municipality. Punke v. Village of Elliott, 364 Ill 604, 611, 612, 5 NE2d 389 (1936); Woodward Governor Co. v. City of Loves Park, 335 Ill App 528, 538, 82 NE2d 387 (1948); Wolbach v. Village of Flossmoor, 329 Ill App 528, 530, 69 NE2d 704 (1946).

In pursuing this thought, Burr Ridge points out— and we believe with ample justification from the evidence — that if the disconnection here sought is approved, the owner will annex the land, as soon as possible, to the Village of Willowbrook. However, we find no statutory proscription of such action; and, we conclude that the cases cited by Burr Ridge, interpreting the statute, do not hold that disconnection is proper only when the land is to revert to a rural character. Rather, we read the statute as intending to provide a means of disconnection from any municipality, if the enumerated requirements are met, regardless of the purpose of the petitioner and, we believe that the cases so hold and that such decisions accord a liberal construction to the statute. In re Certain Territory of Palos Heights, 30 Ill App2d 336, 342, 174 NE2d 574 (1961); Van Bebber v. Village of Scottville, 13 Ill App2d 458, 465, 142 NE2d 711 (1957).

It should be apparent from its last paragraph that the statute is not intended to limit disconnection to those lands which will remain in unincorporated areas. This paragraph provides that under certain conditions, land which is disconnected shall not be subdivided into lots and blocks within one year from such disconnection, and that no plat of any such proposed subdivision shall be accepted for recording within such period unless the land shall have been thereafter incorporated into< a municipality. (Ill Rev Stats 1965, c 24, § 7-3-6.) (Italics ours.)

Burr Ridge next contends that the petitioner failed to show that the disconnection would not unreasonably disrupt the growth prospects and plan and zoning ordinances of the Village. The contention as to the growth prospects is amply answered by petitioner’s exhibit No. 1, which indicates that the area in question is surrounded to the east, south, and west, by the Village of Willow-brook. In view of this circumstance, and of the fact that the Village does not have any sewer mains within a block of the property, maintains no street lights around or within it, and offers it neither police or fire protection, nor refuse collection service, the disconnection of the land in question could not possibly disrupt any service facilities or the substantial growth prospects of Burr Ridge in these directions.

As to the disruption of plan and zoning ordinances, each party presented expert witnesses, who gave opinions supporting their respective positions. Each has suggested that the witnesses for the other offered testimony without valid foundation, but that its own witnesses presented reasoned and well-supported testimony. We have examined the record in detail in this regard and find adequate basis to support the opinions of each of the witnesses. However, it must be remembered that, under the statute, the issue before the court was whether the proposed disconnection would unreasonably disrupt thé planning and zoning ordinances of Burr Ridge. The trial court heard and saw the witnesses. The court’s finding that the statutory requirement was met in this regard is not contrary to the manifest weight of the evidence and will not be disturbed by us.

Burr Ridge further urges that the proposed disconnection, which will cause two “fingers” of its corporate boundaries to extend south beyond the remaining boundary, results in an isolation of these fingers or corridors from the remainder of the municipality. One corridor extends south 2,400 feet, is 170 feet wide and consists of 9.3 acres; the other extends south 1,300 feet, is 170 feet wide and consists of 5.2 acres.

These corridors of land constitute sizeable tracts, which are privately owned and are neither streets nor alleys. The subject property corners upon the Village of Willowbrook at two points. However, it has long been the law that cornering is not sufficient to establish contiguity. Wild v. The People ex rel. W. E. Stephens, 227 Ill 556, 560, 81 NE 707 (1907). It is also the law that the two corridors or fingers are contiguous to Burr Ridge if there is a touching in a reasonably substantial physical sense. Western Nat. Bank v. Village of Kildeer, 19 Ill2d 342, 352, 167 NE2d 169 (1960). Corridors of lesser width have met the test of contiguity. LaSalle Nat. Bank v. Village of Willowbrook, 40 Ill App2d 359, 360, 361, 189 NE2d 690 (1963).

While Burr Ridge concedes that these corridors extending out from its corporate limits are not physically isolated from the remainder of the Village, it contends that they will be economically or functionally isolated. This same contention was presented to this court in LaSalle Nat. Bank v. Village of Willowbrook, supra. We there held that so long as there remains a continuing and connected boundary line, with no cornering, there is no “isolation” as contemplated by the statute. We see no reason to depart from the view there expressed that the word “isolation” refers to physical isolation. It is not for us, under the guise of statutory construction, to rewrite the statute itself to include economic, functional or such other aspect of isolation as might serve a particular purpose when the language of the statute does not permit such interpretation. Western Nat. Bank v. Village of Kildeer, supra, 349, 350. We must take the words found in the statute in their ordinary usual meaning and give them a sensible meaning consonant with the context in which they are used. Illinois Central R. Co. v. Village of South Pekin, 374 Ill 431, 434, 29 NE2d 590 (1940).

The case at bar is unlike those cases in which a substantial portion of the municipality is separated by a disconnection from the remainder, joined only by a narrow strip or roadway. See: Gieseking v. Village of Harvel, 24 Ill App2d 440, 164 NE2d 622 (1960) and In re Disconnection of Territory of Mt. Prospect, 341 Ill App 272, 93 NE2d 578 (1950). The fact that the disconnection in the case at bar results in an irregular border at the location in question, does not result in an isolation. Indeed, the Village of Burr Ridge, not unlike many others, is characterized by extreme border irregularities.

Burr Ridge contends that the petitioner’s land is contiguous to the municipality, Willowbrook, and, thence, requirement (1) of the statute is not met. The land sought to be disconnected “corners” with the Village of Willowbrook in two places. To be contiguous, the tracts of land must “touch or adjoin one another in a reasonably substantial physical sense.” Western Nat. Bank v. Village of Kildeer, supra, 352. Also see: Wild v. The People ex rel. W. E. Stephens, supra.

Burr Ridge admits that if it is confined to the literal mandate of the legislature, then the subject property is not contiguous to the Village of Willowbrook. In People v. Village of Hawthorn Woods, 19 Ill2d 316, 167 NE2d 176 (1960), where two areas of land were connected by a common boundary for a distance of 128.7 feet, the court, in construing the word “contiguity” as used in the statute relating to incorporation, stated at page 360: “We believe that the contiguity in this case is such that it satisfied the literal mandate of the legislature . . . .” The fact that Kildeer and Hawthorn Woods involve an interpretation of the statute relating to incorporation makes them no less applicable to our determination. The People v. Ellis, 253 Ill 369, 376, 97 NE 697 (1912); Wolbach v. Village of Flossmoor, 329 Ill App 528, 531, 532, 69 NE2d 704 (1946).

It is the legislature which is granted the power of prescribing the conditions relative to the alteration of municipalities — whether through annexation, disconnection or incorporation. There is no cogent reason for suggesting that the word “contiguous” means anything different in one statute than in the other. Our only duty or authority is to construe the statutes in a reasonable and sensible manner. Spaulding School Dist. No. 58 v. Waukegan, 18 Ill2d 526, 528, 165 NE2d 283 (1960). Under the circumstances, we must follow the literal mandate of the statute, and absent an actual touching in a reasonably physical sense there is no “contiguity” as the term is used in the statute.

Just prior to the commencement of this proceeding, a strip of land also owned by the petitioner, approximately 120 feet in width — and surrounding the land in question where it adjoined the Village of Willowbrook — was disconnected from Willowbrook. This resulted in a corridor of unincorporated land, 120 feet in width, separating the Village of Willowbrook from the land in question. It is obvious that this was done so that the statutory requirement of an absence of contiguity with another municipality could be met.

But as we have suggested, we cannot be concerned with the motives involved, but rather, our regard pertains to statutory compliance. At the time of the hearing, the forbidden contiguity was not present. It is the time of the hearing which controls whether the mandates of the statute are met. LaSalle Nat. Bank v. Village of Willowbrook, supra, 362; In re Petition of Cox, 32 Ill App2d 142, 177 NE2d 247 (1961).

Burr Ridge has also argued that if all of the elements necessary to a disconnection are found to exist, the trial judge still possesses the discretion of denying the request. We do not read the statute as giving the court such discretion. The statute provides that if the allegations of the petition are found to be true, the court “shall” order the land disconnected; and if the court finds that the allegations of the petition are not true, it “shall” dismiss the petition. The discretion to determine what may or may not be relevant to the alteration of municipal boundaries is in the legislature — not the judiciary. The City of Galesburg v. Hawkinson, 75 Ill 152, 156, 157, 158 (1874); Van Bebber v. Village of Scottville, 13 Ill App2d 458, 462, 142 NE2d 711.

We find no error in the determination made by the trial court. There is ample evidence to support its finding that the statutory requirements for disconnection were met. Its judgment is affirmed.

Judgment affirmed.

MORAN and BURT, JJ., concur.


author: MR. PRESIDING JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lorenzo G. Canada, Defendant-Appellant.
    Gen. No. 50,344.
    First District, Fourth Division.
    March 10, 1967.

      Emilie N. Wanderer, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. Roger Horsky, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Defendant was convicted of murder and sentenced to life imprisonment. However, the conviction was reversed and remanded for failure of the trial court to instruct the jury on manslaughter. People v. Canada, 26 Ill2d 491, 187 NE2d 243. On September 12, 1963, a second jury found defendant guilty of voluntary manslaughter and the court sentenced him to a term of six to twelve years. Defendant appealed to the Supreme Court which transferred the case here.

Defendant and William Cunningham, deceased, both resided in a rooming house located at 5225 South University, Chicago. Defendant’s room was on the first floor of the building and Cunningham’s was situated directly over defendant’s. Mrs. Irma Pickens, the key witness for the State, rented a basement apartment on the premises. Unless otherwise indicated, it is from her testimony that the recital of facts in this opinion was derived. About 1:15 a. m. on November 27, 1960, an argument developed between defendant and deceased over whether deceased had informed the landlady that defendant had been making noise. Deceased denied making such a statement, but defendant advanced up the stairs toward deceased, stopping on the way to break a glass against the wall, and engaged the deceased in further argument. A fight started, but other tenants intervened. Defendant then ran downstairs to his room and when he returned to the second floor he carried with him a glass of liquid, a club, and two knives in his back pockets. Deceased reappeared from his room with a hatchet and a hammer, and the two men resumed their fight until it was again broken up by neighbors. At about 2:00 a. m., when deceased was leaving the rooming house, defendant struck him with a club and chased him out of the building. Deceased returned to his room shortly thereafter with a girl friend, and after a period of time left the building to walk her home. At approximately 3:30 a. m. deceased reentered the building. At this time defendant, Mrs. Pickens, and some guests were all sitting in Sweetie Claybourn’s apartment on the first floor of the building. Defendant walked over to the doorway to see who had come in. Deceased had stopped to sit down on a little desk in the hallway. The two men exchanged insults and then defendant took a knife out of his back pocket and, holding it up to deceased’s throat, threatened to run the knife through him. Deceased began to walk up the stairs with defendant in close pursuit carrying a club, a knife in his right hand, and a knife in his back pocket. (There was other testimony that deceased carried no weapons at this time.) Defendant pushed deceased as he followed him up the stairs. Deceased then turned around to defend himself and brought his right hand down, knocking defendant to one knee on the stair below him. As deceased lifted his foot to kick defendant, the latter brought his knife up, piercing deceased in the right thigh, severing the femoral vein. Deceased grabbed the club from defendant and knocked him down the stairs, after which he ran up the stairs and collapsed in front of his room. (Two witnesses for the defendant disputed Mrs. Pick-ens’ testimony that she personally witnessed the occurrence. They claimed that Mrs. Pickens came on the scene after the fight when deceased lay bleeding in front of his second-floor room.)

Mrs. Eleanor Parks, the landlady of the rooming house, testified that when she arrived on the premises at approximately 2:00 a. m. she observed no weapons on the person of deceased, but that defendant had a knife in each pocket of his pants and a container in his hand with something in it which an onlooker described to her as acid. She also testified that she had observed defendant chasing deceased around the building; that she returned to her own apartment after requesting both men to remain peaceful; that at about 3:30 a. m. defendant and Sweetie Claybourn appeared at Mrs. Parks’ apartment, and defendant said to her: “You better call an ambulance because I have cut Cunningham and he lying up there.”

Two police officers who were summoned to the scene of the occurrence testified that they heard defendant answer, “I did it” in response to an inquiry as to who had done the cutting. Further, another police officer testified that the point and center portions of a knife were separately found on the stairs leading to the second floor, and the handle of the same knife was discovered beneath a table on the first floor.

Defendant testified on his own behalf, and his account of the occurrence was substantially different from that of Mrs. Pickens. According to defendant, when he left Sweetie Claybourn’s apartment at about 3:30 a. m. deceased jumped off the desk in the hallway and struck him with a club. Defendant further testified that deceased had a knife stuck in his belt at this time, and that he hit defendant on the head and began kicking him; that he (defendant) tried to escape this attack by running into his apartment, but that deceased followed him and kicked the door open. Defendant then stated that as he reached for a fruit bowl to defend himself, deceased ran out the door, stumbled in the hallway, and ran up the steps. Defendant said he first learned of deceased’s injury when he heard Mrs. Pickens “hollering” that someone was bleeding.

Defendant first contends that he is entitled to discharge under the four-month statute then in effect, which provided as follows:

Any person committed for a criminal or supposed criminal offense, and not admitted to bail, and not tried by the court having jurisdiction of the offense, within four months of the date of commitment, shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner, or unless the court is satisfied that due exertion has been made to procure the evidence on the part of the People, and that there is reasonable grounds to believe that such evidence may be procured at a later day in which case the court may continue the cause for not more than sixty (60) days. ... Ill Rev Stats (1959), c 38, § 748.

On November 30, 1962, the first conviction of defendant was reversed and remanded. People v. Canada, 26 Ill2d 491, 187 NE2d 243. The case was redocketed on February 8, 1963, and continued until February 27, 1963. On that date defendant was arraigned, and the cause was continued to April 8, 1963. The record shows that this continuance was at the request of both the State’s Attorney and defendant’s counsel. After several more continuances at the request of the State, on July 16, 1963, defendant entered a motion for a discharge under the four-month statute. This motion was denied. On August 6, 1963, defendant made a motion for a reconsideration of the petition for discharge, but the court reaffirmed its previous denial of the petition. Also on August 6, 1963, the State moved for an extension of time under section 748 of the statute quoted above. The court granted this request and the cause was continued to September 9, 1963, on which date the trial was commenced.

Defendant’s contention that the four-month statute compels his discharge may be subdivided into two basic aspects:

1. That the State’s failure to bring defendant to trial within four months of November 30, 1962 violated the terms of the four-month statute.
2. That the trial court erred in granting the State’s motion for an extension of time on August 6 because the State failed to show good cause why such an extension should have been granted. The effect of the court order of August 6, 1963, was to defer the trial of defendant to a date beyond the four-month period commencing April 8,1963.

On February 27, 1963, defendant’s counsel appeared at the arraignment of defendant. The record shows that at that time she questioned the court as to the proper procedure to employ if she were to request a continuance. The court responded that her request for a continuance would be granted. In addition, the court informed her of the importance to the State of the four-month statute. The following colloquy then occurred among the court, State’s Attorney, and defense counsel:

The Court (Judge Harewood): In the first instance we usually give time about a month.
Defense Counsel: If we could have some time around the first of April. That would save coming down; then we would likely get to trial.
The Court: Then by agreement. I couldn’t—
State’s Attorney: We will agree if she wants a date 2nd week in April.
Defense Counsel: First week in April would be all right.
The Court: All right, by agreement, let’s say—
Defense Counsel: 4th or 5th.
The Court: Well, the 5th is Friday, so—
Defense Counsel: Suppose we go over to the second week in April then.
The Court: April 8th by agreement.
The Court: You don’t mind being here on that day?
Defense Counsel: No.
The Court: All right, by agreement.

In defendant’s petition for discharge filed in the trial court on July 16, 1963, the happening on February 27 was described as follows: “The trial was assigned to Hon. Richard A. Harewood, and a date of trial was agreed upon by the attorney for the defendant and Mr. Zimmerman, Assistant State’s Attorney.” It was then stated in defendant’s petition that “the date of trial on April 8, 1963 was fixed as a date mutually agreeable to the defendant’s counsel and the State’s Attorney” but that this did not constitute a request for a continuance to that date.

Where an accused has sought and obtained a continuance within the four-month period or has agreed to such a continuance, the four-month period ceases to run and the defendant is not on that account entitled to a discharge. People v. Williams, 27 Ill2d 327, 329, 189 NE2d 314; People v. Rankins, 18 Ill2d 260, 262, 163 NE2d 814; People v. Ephraim, 17 Ill2d 527, 528, 162 NE2d 431; People v. Niemoth, 409 Ill 111, 116, 98 NE2d 733. Defendant’s counsel argues that her conduct on February 27, 1963, as set forth above, cannot be construed as engendering an agreement by defendant to a continuance, or, in the alternative, that her own inexperience before the Criminal Court of this State produced the “agreement,” and such fact should not redound to the disadvantage of defendant.

Both arguments fail to convince. First, it is well settled that the four-month statute will not run where defendant’s counsel requests or stipulates to a continuance, as was undoubtedly the situation here. People v. Rogers, 26 Ill2d 599, 602, 188 NE2d 22; People v. Tillman, 26 Ill2d 552, 554, 187 NE2d 731; People v. Clark, 17 Ill2d 486, 492, 162 NE2d 413. The argument relating to inexperience of defendant’s counsel cannot be accepted, since the record shows that the trial court explained to her the importance of the four-month statute and, in addition, we note the success of defendant’s counsel in obtaining reversal of defendant’s conviction in his first trial. Counsel does not even argue that she was inexperienced in criminal practice generally, but only in this jurisdiction.

The second aspect of defendant’s contention pertaining to the four-month statute is also without merit. Defendant argues that the State failed to make a proper presentation of a motion for extension of time on August 6, 1963. In support of this argument, defendant refers us to cases in which criminal defendants have been unsuccessful in their appeals from trial court denials of extensions of time to procure additional evidence. People v. Coniglio, 353 Ill 643, 187 NE 799; People v. Williams, 309 Ill 492, 141 NE 296; People v. Donaldson,

255 Ill 19, 99 NE 62. These cases involved section 738 (Ill Rev Stats (1961), c 38, § 738), and the court pointed out that the party seeking a continuance under that section must assert facts in an affidavit upon which the court may determine whether a proper degree of diligence has been exercised and whether it is probable that absent witnesses may be produced at a later date. Section 738 provided:

When affidavit is made for a continuance in behalf of the people or any defendant in a criminal case on the ground of the absence of a material witness, the State’s attorney, or the defendant, as the case may be, shall not be required to admit the absolute truth of the matter set up in the affidavit for continuance, but only that such absent witness, if present, would testify as alleged in the affidavit; and if so admitted, no continuance shall be granted, but the case shall go to trial, and the party admitting the same shall be permitted to controvert the statements contained in such affidavit by other evidence, or to impeach such absent witness the same as if he had testified in person: Provided, that the court may, in its discretion, require the opposite party to admit the truth absolutely, of any such affidavit when, from the nature of the case, he may be of opinion that the ends of justice require it: Provided, further, that this Act shall not apply to applications for continuances made within 30 days from the day on which the indictment is found or information filed.

In the instant case, however, the State did not proceed under this section 738, but rather under section 748, quoted earlier in this opinion. We agree with defendant that the State’s petition contains the type of conclusions, unsupported by facts, which have been found insufficient under section 738. However, section 748 requires neither affidavit nor motion, but only that the court be satisfied that due exertion has been exercised to obtain the relevant evidence on behalf of the State and that there is reasonable ground to believe that such evidence will be obtained in time for trial at a designated later date not more than sixty days from the time the continuance is granted. People v. Tamborski, 415 Ill 466, 472, 114 NE2d 649. The two sections of the statute are not necessarily in conflict. They may be reconciled by application of the well-established principle of statutory construction that a provision intended to apply in a particular situation will prevail over, and be treated as an exception to, a provision designed for general application. Board of Education v. City of West Chicago, 55 Ill App2d 401, 404, 205 NE2d 63; Jansen v. Illinois Municipal Retirement Fund, 58 Ill App2d 97, 105-106, 206 NE2d 249.

It is irrelevant that Sweetie Claybourn, the witness for whose appearance the State sought the continuance, failed to appear at the trial, since the question of whether the granting of the continuance was a reasonable exercise of discretion by the court must be viewed as of the time the petition was considered. People v. Poland, 22 Ill2d 175, 178, 174 NE2d 804. A careful examination of the record reveals a discussion in which the court attentively listened to extended argument for and against the granting of the continuance. The language of the Poland case [at p 178] is especially apt in this situation:

Under the circumstances, we must assume that the court was satisfied that due exertion had been made to secure the evidence and that there were reasonable grounds for believing that it could be procured at a later date. The continuance was granted before the expiration of the four-month period and was well within the sixty days authorized by the statute. We cannot say that the trial judge abused his discretion in granting the continuance. The defendant, therefore, is not entitled to be discharged on the ground that he was not tried within the time provided by law.

We conclude, after careful study of the record, that the trial judge in the case at bar did not abuse his discretion when he granted the State’s petition for a continuance from August 6 to September 9,1963.

Defendant next contends that the evidence at the trial was insufficient to establish defendant’s guilt beyond a reasonable doubt. We have reviewed the evidence and cannot say that it is so unreasonable, improbable and unsatisfactory as to generate in the mind of this court the reasonable doubt necessary to overturn the jury verdict of guilty. People v. Sustak, 15 Ill2d 115, 123, 153 NE2d 849. While there are differences between the testimony of defendant’s witnesses and that of the State’s key witness, Mrs. Irma Pickens, it is well settled that the testimony of a single witness is sufficient to sustain a conviction if the jury believes the evidence and it is not so improbable as to create a reasonable doubt of defendant’s guilt. People v. Greer, 28 Ill2d 107, 111, 190 NE2d 742; People v. Brengettsy, 25 Ill2d 228, 231, 184 NE2d 849; People v. Luckett, 24 Ill2d 550, 553, 182 NE2d 696.

Defendant argues at length that the State’s failure to introduce into evidence deceased’s trousers raises the presumption that such evidence would have been disadvantageous to the State’s case. It is defendant’s position that examination of the trousers would have revealed no cut or tear in the cloth, thus substantiating defendant’s theory that deceased in some way accidentally caused his own death. We see no reason why the trousers were not as accessible to defendant as to the State, but, in any event, “neither the jury nor this court is required to conjure up hypotheses from the evidence (or lack thereof) that are inconsistent with defendant’s guilt, and elevate these potential explanations to the status of a reasonable doubt.” People v. Kelley, 29 Ill2d 53, 59, 193 NE2d 21. See, also, People v. Russell, 17 Ill2d 328, 331, 161 NE2d 309.

Defendant also argues that statements made by him before he was advised of his right to counsel should not have been received in evidence. He relies on Escobedo v. Illinois, 378 US 478, even though he had made no request for counsel. That distinction removes this case from Escobedo and brings it within the rule of People v. Hartgraves, 31 Ill2d 375, 202 NE2d 33. Further, the guidelines of Miranda v. Arizona, 384 US 436, are “available only to persons whose trials had not begun as of June 13, 1966.” Johnson v. New Jersey, 384 US 719, 734. Examination of the record reveals no evidence of involuntariness in the taking of defendant’s statements, and we find no error in their admission into evidence.

Defendant also contends that the court erred in denying his motion to have an anatomical chart taken into the jury room. The State’s Attorney objected and explained his reasons, but advised the court that he would have no objection to the passing of the chart among the jurors in open court. After a brief discussion, defendant’s counsel agreed to this alternative. Whether or not certain evidence should accompany the jury to the jury room rests in the sound discretion of the court, and unless the course taken by the court is prejudicial to the accused, the action of the trial court will not be disturbed. People v. Allen, 17 Ill2d 55, 62-63, 160 NE 2d 818; People v. Ciucci, 8 Ill2d 619, 625, 137 NE2d 40; People v. Hauck, 362 Ill 266, 273, 199 NE2d 821. That the jury was given unrestricted time to examine the chart in question immediately prior to retiring to the jury room leaves us convinced that the court did not abuse its discretion and that no prejudice resulted to the defendant by virtue of the ruling.

Alleged error involving improper closing argument by the State’s Attorney is not subject to review, because defendant did not see fit to make timely objection thereto in the trial court. People v. Winters, 29 M2d 74, 80, 193 NE2d 809; People v. Donald, 29 Ill2d 283, 287, 194 NE2d 227.

Finally, defendant argues that prejudicial error occurred when the trial judge, some time after the jury had retired to deliberate, recalled the jury to the jury box and inquired of the foreman: “If the jury deliberated longer, is it possible that the jury will arrive at a verdict?” Defendant relies on People v. Brothers, 347 Ill 530, 180 NE 442, but we find in that case nothing which would require reversal in the case at bar. The trial judge here did not, in our opinion, say or do anything which was calculated to influence the jury’s verdict.

The judgment of the Criminal Court of Cook County is affirmed.

Affirmed.

DRUCKER and McCORMICK, JJ., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    United States Brewing Co., a Division of Canadian Ace Brewing Co., an Illinois Corporation, Plaintiff-Appellee, v. The Village of Alsip, a Municipal Corporation, et al., Defendants-Appellants.
    Gen. No. 51,194.
    First District, Third Division.
    March 30, 1967.
    Briody and Gentile, of Blue Island (Henry A. Gentile, of counsel), for appellants.
    Schultz, Biro & Karmel, of Chicago, for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from a final order of injunction restraining the defendant, The Village of Alsip, and officers thereof, from interfering with the plaintiff’s sale of its product known as “Jet” Near Beer, and with the subsequent sale of said product to the ultimate consumer regardless of the age of said purchaser. The trial court in its final order decreed that the Village of Alsip was not authorized by statute, nor otherwise, to adopt the ordinance in question.

The defendant Village contends that the Village had authority to adopt the ordinance in question and that the complaint did not state a cause of action.

This case was decided on the complaint and motion to dismiss.

The defendant, the Village of Alsip, filed a motion to dismiss the complaint filed by the plaintiff seeking an injunction against the enforcement of a village ordinance. The pertinent portion of the ordinance is as follows:

“Section One. That it shall be unlawful for any person or persons to sell any beverage containing any amount of alcoholic content, and more popularly known as ‘near beer’ to any person under twenty-one years of age.”

The complaint alleged that the plaintiff was engaged in making and selling a nonalcoholic malt beverage known as “Jet” Near Beer, and that the ordinance was illegal. The pertinent parts of the complaint are the following:

Paragraph 1 of the complaint alleged that the plaintiff is engaged in making and selling malt beverages in the city of Chicago.

Paragraphs 2 to 8 alleged facts establishing that “Jet” Near Beer is not subject to the provisions of the Blinois Liquor Control Act, (B1 Rev Stats 1963, c 43, par 94), and that it contains less than one-half of one percent of alcohol by volume. The complaint further alleged that “Jet” Near Beer was made in the same manner as regular beer but that the alcohol was thereafter removed so that it contained less than one-half of one percent of alcohol by volume.

Paragraphs 10 and 11 alleged that the adoption of the ordinance was not authorized and was illegal.

The complaint further alleged that the plaintiff has been placed in a position where it has been threatened with irreparable damage by the illegal actions of the defendant in interfering with the sale of its product in the Village of Alsip. The complaint also alleged that the plaintiff’s product is nonalcoholic, relying upon the Liquor Control Act of Elinois, which excludes near beer from its application, and upon certain letters received by the plaintiff from the Elinois Liquor Control Commission, the Alcohol and Tobacco Tax Division, Internal Revenue Service, U. S. Treasury Department and sections 5051-5052 of the United States Internal Revenue Code which does not require the payment of a federal beer tax on any product that contains less than one-half of one percent alcohol by volume.

The sole question before us for determination is whether or not the Village of Alsip has the power to pass an ordinance prohibiting the sale of a beverage containing less than one-half of one percent of alcohol by volume.

The defendants contend that the Village of Alsip had authority to adopt the ordinance in question under its statutory police powers and under the authority given to villages by section 11-5-3 of the Cities and Villages Act (El Rev Stats 1963, c 24, § 11-5-3), which provides as follows:

“The corporate authorities of each municipality may prevent intoxication, fighting, quarreling, dog fights, cock fights and all other disorderly conduct.”

The defendants then argue that persons under twenty-one years of age, who may be susceptible to the intoxicating effects of near beer with alcoholic content and to the stimulating effect of drinking the near beer, would be curbed from intoxication, fighting, quarreling and disorderly conduct by the ordinance in question. However, there are no facts in this case which would indicate that near beer, or any beverage containing less than one-half of one percent of alcohol by volume, is intoxicating. The defendants could not have raised it because they filed a motion to dismiss the complaint. The complaint, on the other hand, alleges that it is nonalcoholic but that it contains less than one-half of one percent of alcohol by volume.

Historically, beverages containing less than one-half of one percent of alcohol by volume have been considered and construed to be nonintoxicating.

The Eighteenth Amendment to the Constitution of the United States, which was proclaimed ratified on January 29, 1919, in 40 US Statutes at Large, p 1941, read as follows:

“SECTION 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
“SECTION 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.”

Section 3 provided the period in which it would become inoperative unless ratified.

Pursuant to this amendment of the constitution the Congress of the United States on October 28, 1919, adopted what was known as the Volstead Act, the title of which was “An Act to prohibit intoxicating beverages, and to regulate the manufacture, production, use, and sale of high-proof spirits for other than beverage purposes, and to insure an ample supply of alcohol and promote its use in scientific research and in the development of fuel, dye, and other lawful industries.” Title I of said act contains in part the following language:

“The words, ‘beer, wine, or other intoxicating malt or vinous liquors’ in the War Prohibition Act shall be hereafter construed to mean any such beverages which contain one-half of 1 per centum or more of alcohol by volume: Provided, That the foregoing definition shall not extend to dealeoholized wine nor to any beverage or liquid produced by the process by which beer, ale, porter or wine is produced, if it contains less than one half of 1 per centum of alcohol by volume, . . .” (Emphasis supplied.)

Section 1 of Title II of the same act of Congress reads in part as follows:

“SEC. 1. When used in Title II and Title III of this Act (1) The word ‘liquor’ or the phrase ‘intoxicating liquor’ shall be construed to include alcohol, brandy, whisky, rum, gin, beer, ale, porter, and wine, and in addition thereto any spirituous, vinous, malt, or fermented liquor, liquids and compounds, whether medicated, proprietary, patented, or not, and by whatever name called, containing one-half of 1 per centum or more of alcohol by volume which are fit for use for beverage purposes: Provided, That the foregoing definition shall not extend to dealeoholized wine nor to any beverage or liquid produced by the process by which beer, ale, porter or wine is produced, if it contains less than one-half of 1 per centum of alcohol by volume, . . .” (Emphasis supplied.)

The foregoing may be found in Statutes of the United States 1919, First Session, 66th Congress, pages 305, 307 and 308.

The State of Illinois in 1921 adopted the Illinois Prohibition Act and in section 2 of that act provided that the phrase “intoxicating liquor” did not extend to dealcoholized wine nor to any beverage or liquid produced by the process by which beer, ale, porter or wine is produced, if it contains less than one-half of one percent of alcohol by volume. Smith-Hurd Illinois Revised Statutes 1923, chap 43, § 2. The Liquor Control Act of Illinois, entitled “An Act relating to alcoholic liquors” was approved on January 31, 1934, after the repeal of the Eighteenth Amendment to the United States Constitution. Section 1 of chap 43 (111 Rev Stats 1963, c 43, par 94) reads in part as follows:

“Section 1. This Act shall be liberally construed, to the end that the health, safety and welfare of the People of the State of Illinois shall be protected and temperance in the consumption of alcoholic liquors shall be fostered . . .”

Section 2.05 of the same act states that the provisions of the act shall not apply to any liquid or solid containing one-half of one percent, or less, of alcohol by volume.

From the foregoing constitutional amendment and the acts of Congress and of the State of Illinois, it can be readily seen that near beer including less than one-half of one percent of alcohol by volume has been construed to be nonintoxicating and not subject to any of the legislation relating to intoxicating liquor. Section 1 of the Liquor Control Act of Illinois (111 Rev Stats 1963, c 43, par 94), provides that the act shall be liberally construed to the end that the health, safety and welfare of the People of the State of Illinois shall be protected and temperance in the consumption of alcoholic liquors shall be fostered. By that very act, beverages containing one-half of one percent of alcohol by volume are excepted from the Liquor Control Act and it is obvious that the legislature considered that it was not necessary in the interest of health, safety or welfare of the People of the State of Blinois that the sale or manufacture of a beverage containing less than one-half of one percent of alcohol by volume be regulated. The inference can readily be drawn, also, that our legislature construed near beer as being nonintoxicating, for certainly, if it were intoxicating it would be in the interest of the health, safety and welfare of the people to regulate its sale and manufacture. The argument of the defendant is based on the theory that near beer is an intoxicating beverage and for that reason should not be sold to persons under the age of twenty-one. Such a conclusion cannot be based upon the history of legislation construing intoxicating liquors, both by the Congress of the United States and the legislature of the State of Illinois.

The Court of Appeals of Georgia in Campbell v. City of Thomasville, 6 Ga App 212, 64 SE 815, defined near beer in the following language on page 821:

“Also, at the beginning of the opinion, we may as well introduce to bench and bar this new recruit in the ranks of that army of subjects which are wont to trouble the courts, ‘near beer,’ and give its name a place in the roll of judicial definitions. ‘Near beer’ is a term now of general currency in this state, and perhaps elsewhere, used to designate any and all of that class of malt liquors which contain so little alcohol that they will not produce intoxication, even though drunk to excess. It includes all malt liquors which are not within the purview of the general prohibition law.”

In People v. Cioppi, 322 111 353, 153 NE 604, the court found that an indictment using the term “intoxicating liquor” included brandy, whiskey, rum, gin, beer, ale and wine, and in addition thereto any spirituous, vinous, malt or fermented liquor, liquids and compounds, whether medicated, proprietary, patented or not, and by whatever name called, containing one-half of one percent or more of alcohol by volume, which are fit for use for beverage purposes. By such definition near beer was excluded.

In Village of Westville v. Rainwater, 294 Ill 409, 128 NE 492, the defendant Rainwater was charged with selling and delivering a malt, cereal or grain beverage in violation of an ordinance of the Village of Westville. The ordinance in question made it unlawful for anyone to sell any malt, cereal, grain or fruit beverages without first having obtained a license to do so, which shall be known as a retail soft drink license. The ordinance provided that nothing therein contained shall be construed as operating to grant the right to sell beverages containing more than one-half of one percent alcohol. The defendant sold and delivered within the limits of the Village a beverage prepared from malt containing less than one-half of one percent alcohol by volume without a license. On page 412 the court said:

“The business of delivering to the purchaser beverages containing less than one-half of one percent alcohol by volume was a lawful business, and the authority to require appellee to take out a license is not expressly or impliedly conferred on municipalities by the Cities and Villages Act.”

In that case the court referred to the malt liquors containing less than one-half of one percent of alcohol by volume as nonintoxicating beverages.

An act which deprives a citizen of his liberty or property rights cannot be sustained under the police power unless a due regard for the public health, comfort, safety or welfare requires it. Western Theological Seminary v. City of Evanston, 325 Ill 511, 156 NE 778.

We do not believe that the ordinance in question bears any relationship to the public health, comfort, safety or welfare, and there is no express authority that we can find in the statute giving a village the right to prohibit the sale of nonintoxicating beverages.

The defendants further contend that the Village may exercise police power concurrently with the State if the Village action is not repugnant to the State’s exercise of the power. In Town of Cicero v. Weilander, 35 Ill App 2d 456, 467, 183 NE2d 40, the court said:

“Municipal authorities cannot under a general grant of power adopt or pass ordinances which infringe on the spirit of the State law or which are repugnant to the policy of the State as declared by its general regulations, but the police regulation of a municipality may differ from those of the State on the same subject if they are not inconsistent therewith.”

The ordinance before us is inconsistent with the policy expressed by the State in the Liquor Control Act, in that the ordinance prohibits that which the State permits and it cannot be said that the ordinance complements the statute.

For the foregoing reasons we believe that the trial court properly denied the motion of the defendant to dismiss the complaint.

In deciding this case we have not considered the sufficiency of the complaint with regard to the allegation that the manufacturer sold “Jet” Near Beer in the city of Chicago. While the defendant contends in this court that the allegation would not justify an attack upon an ordinance of the Village of Alsip, the point is raised for the first time on appeal, and for that reason will not be considered here. People ex rel. Deynes v. Harriss, 333 Ill App 280, 77 NE2d 439.

The decision of the trial court is affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE BURKE delivered

text:
    Diane Gringer, Plaintiff-Appellee and Appellant, v. George Dattilo, Defendant-Appellant, and Alfred H. Schmidt, Sr., Administrator of the Estate of Alfred H. Schmidt, Jr., Deceased, Defendant-Appellee. Alfred H. Schmidt, Sr., Administrator of the Estate of Alfred H. Schmidt, Jr., Deceased, Plaintiff-Respondent, v. George Dattilo, Defendant-Petitioner.
    Gen. Nos. 50,510 and 50,584.
    First District, Second Division.
    December 6, 1966.

      Howard C. Sorensen and Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appellant, George Dattilo.
    Martin J. McGuire, of Chicago (Martin J. McGuire and Philip J. McGuire, of counsel), for appellant, Diane Gringer.
    Hubert E. Hermanek, Robert 0. Duffy, and Beverly and Pause, of Chicago (Hubert E. Hermanek and Robert O. Duffy, of counsel), for appellee, Alfred H. Schmidt, Sr.
   MR. JUSTICE BURKE delivered

the opinion of the court.

The actions arose out of an occurrence on the morning of December 18, 1957, involving four automobiles and three successive collisions on Mannheim Road, a 4-lane, north-south highway, a short distance north of its intersection with Irving Park Road, near Schiller Park. Two of the automobiles were traveling southbound and the other two were traveling northbound. The two northbound vehicles were driven by plaintiff Diane Gringer and by Thomas Kolar, who is not a party to these proceedings. Defendant George Dattilo was operating one of the southbound vehicles. The other southbound automobile was operated by Alfred Schmidt, Jr., and contained a passenger, Jacques LaVoise, both of whom died as a result of injuries received in the accident. For convenience, the Estate of Schmidt shall be referred to as “Schmidt.” The Estate of LaVoise is not involved in this appeal.

Plaintiff Gringer brought an action against both Schmidt and Dattilo, and Schmidt brought an action against Dattilo; the cases were consolidated for trial. The jury returned a verdict in favor of Dattilo and against Schmidt in the Schmidt-Dattilo action and the trial court granted Schmidt’s motion for a new trial. In the action of Gringer against Schmidt and Dattilo, the jury returned a verdict in favor of Gringer and against Schmidt and Dattilo in the amount of $10,000. Judgment was entered on the verdict against Dattilo, but the court granted Schmidt’s motion for judgment notwithstanding the verdict. Dattilo appeals from the judgment for Gringer and against Dattilo. Gringer appeals from the judgment notwithstanding the verdict in favor of Schmidt and against Gringer. Dattilo filed a petition for leave to appeal from the order granting a new trial in the action of Schmidt against Dattilo.

Shortly before 8:00 a. m. on December 18, 1957, the Dattilo automobile was proceeding southward on Mannheim Road in the outer lane toward Irving Park Road. It is undisputed that the morning was foggy or misty, the pavement wet and visibility fair. Traffic was backed up some 300 feet in the Dattilo lane to the Irving Park intersection and, after waiting for another vehicle to pass on his left and observing no traffic in the inner lane, Dattilo turned into the inner southbound lane of traffic. Dattilo testified that he had on his parking lights, that he looked into his outside rearview mirror, but not the inside mirror, before he turned, that there was a “blind spot” created by his outside mirror for a few feet behind his automobile, and that he gave no turn signal prior to changing lanes. Dattilo stated that he proceeded in the inner lane for some three to five seconds, approximately 100 feet, when he was struck in the rear by the Schmidt automobile. The Dattilo automobile remained in its lane after the impact, but the Schmidt automobile careened into the inner northbound lane of traffic. The impact occurred some 200 feet north of the Irving Park intersection. Some 500 feet to the north of the intersection was a “SLOW” sign.

Diane Gringer testified that she was proceeding in the inner northbound lane, passing the Kolar automobile when, before she knew it, the Schmidt automobile was upon her and struck her automobile. She stated that either her or Schmidt’s automobile then struck the Kolar vehicle which was traveling in the outer northbound lane. Mrs. Gringer stated that the Schmidt automobile was traveling approximately 55 miles per hour as it approached her automobile and that the Dattilo automobile was approximately 100 feet in front of the Schmidt automobile after the former had changed lanes.

The police were summoned after the accident and reports were made. The evidence indicates that there were scratches along the back end of the Dattilo automobile, that its left rear fender was caved in, and that there was damage to the right front end of the Schmidt car.

In his appeal against Diane Gringer, George Dattilo maintains that it was error to give Gringer Instruction No. 1 because it directed a verdict on liability in favor of Gringer and against Dattilo whereas the evidence on the issue was conflicting and presented a question of fact for the jury. The instruction reads:

“You are instructed that as a matter of law, you must find in favor of the Plaintiff, Diane Gringer, against Alfred Schmidt, Sr., Administrator of the Estate of Alfred Schmidt, Jr., Deceased or against George A. Dattilo or against both of the said defendants herein.”

It was reversible error to give this instruction in that it amounts to a directed verdict whereas the evidence on the question of liability was conflicting.

An issue of fact arose as to who was liable. The evidence shows that only the Schmidt vehicle crossed into the northbound lanes of traffic, resulting in the collision with the Gringer automobile, whereas the Dattilo automobile remained in its proper lane. Furthermore the allegations of negligence remaining in the Gringer complaint after some charges were stricken were not submitted to the jury. Other than Gringer Instruction No. 1, no instruction on issues between Gringer and the two defendants were given to the jury.

Gringer maintains that Dattilo admitted liability in his argument to the jury. Although it does appear that defense counsel admitted that Gringer was an innocent party, that statement does not constitute an admission of liability on Dattilo’s part.

Thomas v. Cagwin, 43 Ill App2d 336, 193 NE2d 233, cited by Gringer in support of the instruction, is inapplicable to the case at bar. The evidence in the Thomas case showed that either one of two defendants, or both of them, had crossed the center line causing the accident there in question. In the case at bar, however, no evidence exists that the Dattilo automobile crossed the center line, but, on the contrary, the evidence shows that the automobile remained in its lane after the accident. Furthermore, in the Thomas case, counsel for the defendants agreed that one of the defendants had to be negligent, which is not the situation in the case at bar.

In her appeal against Schmidt, Diane Gringer maintains that the trial court erroneously granted judgment notwithstanding the verdict in favor of Schmidt in the light of the evidence in the record tending to show negligence on his part. In determining negligence as a matter of law on a motion for directed verdict or for judgment notwithstanding the verdict, the evidence must be construed most favorably to the party against whom the motion is directed. Brown v. Motor Cargo, Inc., 12 111 App2d 476,139 NE2d 805.

There. is evidence that the Dattilo automobile traveled some 100 feet in the inner southbound lane when it was struck in the rear by the Schmidt automobile while the latter was traveling approximately 55 miles per hour on a wet pavement some 200 feet from a controlled intersection and striking the Dattilo automobile with such force that the Schmidt automobile careened into the northbound lanes of traffic. There is also evidence that the Dattilo automobile was some 100 feet in front of the Schmidt automobile after the former moved into the northbound lanes. It cannot be said that there was not an issue of fact for submission to the jury as to the alleged negligence of Schmidt. It was error for the trial court to have granted judgment notwithstanding the verdict in favor of Schmidt and against Gringer. Bartolomucci v. Clarke, 60 111 App2d 229, 208 NE2d 616.

Testimdny was given at the trial by one of the investigating police officers to the effect that Dattilo was to blame for the accident. An objection to this testimony was improperly overruled. Trial counsel for Gringer is charged with indulgence in a personal attack on the attorney for Dattilo. We assume that on a retrial there will be no reason to complain on this ground.

The Schmidt post-trial motion in the action of Gringer against Dattilo and Schmidt asks for judgment notwithstanding the verdict, which the court granted. The Schmidt motion did not seek the alternative relief of a new trial. The trial judge therefore was not called upon and did not make any ruling on a motion for a new trial in the case of Gringer against Dattilo and Schmidt as is provided by Section 68.1 of the Civil Practice Act; nor does Schmidt argue for or seek a new trial in his brief filed in this court.

For these reasons the judgment for Gringer and against Dattilo is reversed and the cause remanded for a new trial; the judgment notwithstanding the verdict for Schmidt and against Gringer is reversed and the cause remanded with directions to reinstate the judgment for $10,000 in favor of Gringer and against Schmidt. The petition by Dattilo for leave to appeal from the order allowing a new trial in the action by Schmidt against Dattilo is denied in a separate order entered today.

Judgment for Gringer and against Dattilo reversed and cause remanded for new trial; judgment notwithstanding the verdict for Schmidt and against Gringer is reversed and cause remanded with directions to reinstate the judgment for $10,000 in favor of Gringer and against Schmidt. Petition by Dattilo for leave to appeal from the order allowing a new trial in the action by Schmidt against Dattilo denied on separate order.

BRYANT, P. J. and LYONS, J., concur.

On Rehearing

Having further reviewed the briefs and having considered the petition for rehearing, and the cases cited, we have decided to adhere to our opinion.


author: JUSTICE GOLDENHERSH.

text:
    William Vanover, et al., Plaintiffs-Appellants, v. Clyde Kreher, Defendant-Appellee. Bert Kreher, Third Party Plaintiff-Appellee, v. William Vanover, Third Party Defendant-Appellant.
    Gen. No. 66-124.
    Fifth District.
    April 15, 1967.
    Meyer and Meyer, of Belleville, for appellants; Brady, Donovan & Hatch, of Belleville, for appellee.
   Opinion by

JUSTICE GOLDENHERSH.

Not to be published in full.


author: MORAN, P. J.

text:
    Hartford Accident and Indemnity Company, Plaintiff-Appellee, v. Hugh Major, Defendant-Appellant.
    Gen. No. 66—20.
    Fifth District.
    April 19, 1967.

      Ralph T. Smith, of Alton, for appellant.
    Chapman & Strawn, of Granite City (Norman H. Kinder, Jr., of counsel), for appellee.
   MORAN, P. J.

Defendant appeals from a judgment for the plaintiff in its suit against the defendant for unpaid insurance premiums and against the defendant on his counterclaim for the return of overpayments. The case was heard by the court without a jury.

The plaintiff, Hartford Accident and Indemnity Company, hereinafter referred to as Hartford, is engaged in the general insurance business. Its complaint alleged that it had issued four insurance policies to the defendant, Hugh Major, hereinafter referred to as Major, the sole proprietor of a trucking business: A workmen’s compensation policy, which remained in effect for one year (WH 257042); a renewal workmen’s compensation policy, which was cancelled by Hartford five months after its issuance (WH 105593); a general automobile liability policy, which was cancelled by Major (C 244534) ; and a general liability policy, which covered Major’s business premises and which was also cancelled by Major (C 224755).

Concerning the two workmen’s compensation policies, the evidence indicates that no claim for premiums was made until June, 1962, fifteen months after the first policy had been issued and three months after the renewal policy had been issued. At that time, Major received a premium statement, which was based upon an audit by Atwell, Vogel & Sterling, insurance auditors. Major immediately objected to the statement, contending that he was not liable for the premiums claimed under the workmen’s compensation policies because these premiums were based on the earnings of drivers of leased equipment who were not, as a matter of law, his employees and therefore were not intended to be included within the coverage of the policies.

Major is licensed by the Interstate Commerce Commission to transport goods for hire in interstate commerce and is also licensed by the Illinois Commerce Commission. All of the tractors he used in his business were owned by other individuals or companies and were used by him under the terms of written lease agreements entered into between him and the respective owners. The trucks in each case were leased with the drivers. In some instances, the drivers operated their own equipment; in other instances, they operated equipment owned by the lessors. When they operated equipment owned by the lessors, they were paid by the lessors.

The evidence on behalf of Major disclosed that the drivers could make deliveries by any route they chose; that they could hire other persons to drive their trucks without any objection by Major; that they could trip lease to other carriers whenever Major could not arrange jobs for them; that the leased drivers were also required to pay for repairs, gasoline, oil, tires, equipment, and licenses; that they were paid by the job, not on a time basis; that they did not receive a payroll check from Major, but that the money “received from Major was on truck lease statements”; that they paid the collision insurance on their vehicles; and that Major did not withhold any income tax from the money which he paid to them.

Major argues that the foregoing evidence proves that the drivers in question were, as a matter of law, not his employees, but were independent contractors if they drove their own equipment, and employees of independent contractors if the equipment was owned by the lessors of Major.

Hartford contends that one or more of the following furnish an evidentiary basis for finding that the drivers in question were employees of Major:

The last sentence of paragraph 13 of the lease contract reads: “LESSEE reserves the right to cancel this agreement forthwith if equipment is not maintained and operated to the satisfaction of LESSEE.”

Plaintiff’s Exhibit No. 276 is a Truck Lease Statement issued by Major to which the following note was attached: “If your logs are not up to date within 3 days or have not been corrected, your paycheck will be held.” Plaintiff’s Exhibit 271 is also a Truck Lease Statement issued by Major to which the following note was attached:

“On your logs you must show in Line 4, on duty not driving, all time spent loading and unloading, when you are required to remain with the vehicle. Your logs will be checked against the shipping order, and must agree with same.”

Plaintiff’s Exhibit 317 was a notification by Major to all drivers and reads as follows:

“We want to call your attention to the fact that we must know where you are at all times. In most cases we expect delivery of loads the following morning. If this cannot be met, you must call us. You may call 24 hours a day.
“Drivers have been driving thousands of miles unnecessarily due to the fact they are not calling us when they are unloaded.
“In no case should you ever take a load from Waukegan, Illinois without this office first dispatching you. It means dollars both to you and the company to follow this pattern.
“You must never in any case trip lease without first calling the office. Also when trip leasing for M. C. Slater, Scherer Freight Lines, Thru-Way Motor Transport, etc., you must furnish a copy of each day’s trip lease for both companies.”

Plaintiff’s Exhibit 318 reads as follows:

“Beginning February 27, 1961 dispatching of trucks to load at Johns-Manville in Waukegan will be handled from the Wood River Terminal.
“Each driver will be required to load his own load, except in some cases Smitty’s Spotting Service will load rush loads on spare trailers we have in Waukegan.
“When you reach the Waukegan Area — phone the Wood River Terminal and you will be given your instructions.
“In no case are you to call Johns-Manville or any other shipper in the Chicago Area.
“If we have no load for you — try to wild-cat a load for another carrier — if you are successful in getting a load notify the Wood River office of your destination.”

Hartford argues that these exhibits indicate at least six ways in which Major controlled the drivers: (1) The sweeping language used in paragraph 13 of the Lease Contract was equivalent to a provision that Major had a right to fire the driver; (2) by the note attached to Plaintiff’s Exhibit 276, he could withhold their checks; (3) by Plaintiff’s Exhibit 271, he required them to show how their time was spent while on trips; (4) by Plaintiff’s Exhibit 317, the drivers could never trip lease without first calling the office; they could never take a load out of Waukegan, Illinois, without first being dispatched by the office; (5) by Plaintiff’s Exhibit 318, the drivers could not call Johns-Manville or any other shipper in the Chicago area; and (6) he told them where to load and unload.

In Coontz v. The Industrial Commission, 19 HI 2d 574, at 577, 169 NE2d 94, our Supreme Court said:

“When previously confronted with similar issues, this court has consistently pointed out that there can be no inflexible rule which may be applied in all situations to determine whether one is an employee or an independent contractor, and have held that the answer in each instance depends upon the analysis of the facts of the particular case. (Henry v. Industrial Commission, 412 Ill 279; Kijowski v. Times Publishing Corp., 372 Ill 311.) No single facet of the relationship between the parties is determinative, but many factors, such as the right to control the manner in which the work is done, the method of payment, the right to discharge, the skill required in the work to be done, and the furnishing of tools, materials or equipment have evidentiary value and must be considered. (Henn v. Industrial Commission, 3 Ill2d 325.) Of these factors, the right to control the work is perhaps the most important single factor in determining the relation, (Crepps v. Industrial Commission, 402 Ill 606,) inasmuch as an employee is at all times subject to the control and supervision of his employer, whereas an independent contractor represents the will of the owner only as to the result and not as to the means by which it was accomplished. Immaculate Conception Church v. Industrial Commission, 395 Ill 615; Besse v. Industrial Commission, 336 Ill 283; Lawrence v. Industrial Commission, 391 Ill 80.”

Applying these principles to the case at bar, we believe that there was a reasonable basis for the trial court’s finding that the drivers in question were employees of Major.

We find the trial court was correct in its decision for another and more cogent reason — in that Major was a motor carrier of goods in interstate commerce operating under authority of a certificate of license issued by the Interstate Commerce Commission. The transportation of goods in interstate commerce by a motor carrier subjects the carrier to the applicable provisions of the federal statute, 49 USCA 301, et seq., governing such carriage and the rules and regulations of the Commission.

Title 49 USCA 304(e) provides:

“Subject to the provisions of subsection (f) of this section, the Commission is authorized to prescribe, with respect to the use by motor carrier (under leases, contracts, or other arrangements) of motor vehicles not owned by them, in the furnishing of transportation of property— ((
(2) such other regulations as may be reasonably necessary in order to assure that while motor vehicles are being so used the motor carriers will have full direction and control of such vehicles and will be fully responsible for the operation thereof in accordance with applicable law and regulations, as if they were the owners of such vehicles, including the requirements prescribed by or under the provisions of this chapter with respect to safety of operation and equipment and inspection thereof, which requirements may include but shall not be limited to promulgation of regulations requiring liability and cargo insurance covering all such equipment.”

The Interstate Commerce Commission, under whose authority Major was at the time operating, provided by rule that every lease or interchange of vehicles involving interstate commerce, “shall provide for exclusive possession, control, and use of the equipment, and for the complete assumption of responsibility in respect thereto, by the lessee for the duration of said contract, lease or other arrangement.”

In compliance with said rule, Major used a standard leasing contract containing the following provision:

“4. It is understood that the leased equipment under this agreement is in the exclusive possession, control, and use of the authorized carrier lessee and that the lessee assumes full responsibility in respect to the equipment it is operating, to the public, the shippers and the I.C.C.”

We agree with the holding of the Supreme Court of North Carolina in Brown v. L. H. Bottoms Truck Lines, 227 NC 299, 42 SE2d 71, wherein the court said at page 75:

“The transportation of goods in interstate commerce by motor vehicles was required to be under the rules and regulations of the Interstate Commerce Commission, and the Brown truck could only have been used in such transportation by the defendant franchise carrier as one of its fleet of trucks under its license plates. Hence it would seem to follow that control of the operation for the period of the lease was given to the licensed carrier, and that the owner-driven truck was in contemplation of law in its employ and the driver for the trip stood in the relationship of its employee, as found by the Industrial Commission.
“We think the applicable rule, under the facts here presented, is that the lease or contract by which the equipment of the authorized interstate carrier was augmented, must be interpreted as carrying the necessary implication that possession and control of the added vehicle was, for the trip, vested in the authorized operator.
“This conclusion is in accord with well-considered decisions in other jurisdictions.”

Major also contends that even though the drivers in question might be considered employees of Major, they were not intended to be included within the coverage of Major’s compensation insurance. Chapter 48, section 138.4(3), Smith-Hurd Illinois Annotated Statutes, Workmen’s Compensation, provides that “(e) very policy of an insurance carrier, insuring the payment of compensation under the Act shall cover all the employees and the entire compensation liability of the insured . . .” This provision of the Act constitutes a part of the policy of the insurance in the present case. Willis v. Fidelity & Deposit Co. of Maryland, 345 Ill App 373, 103 NE2d 513; The People v. G. H. Cross Co., 361 Ill 405, 198 NE 356; Landis v. New Amsterdam Cas. Co., 347 Ill App 560, 107 NE2d 187; Konrad v. Hartford Accident & Indemnity Co., 11 Ill App2d 503, 137 NE2d 855.

Concerning both the automobile liability and the general liability policies, the evidence indicates that Major effected cancellation and that Hartford computed the total premium due by using the short-rate premium table. Major argues, however, that the short-rate premium table should not have been applied, since the cancellation was necessitated by Hartford’s refusal to provide adequate service. Major testified, without a denial or the presentation of contrary evidence, that he could not contact his agent for forty-five days prior to the cancellation, even though he made numerous attempts; that when he contacted Hartford’s St. Louis office, it did nothing but state that he should talk to his agent; that he had mailed material to the St. Louis office, but that there was no response; and that he had contacted his agent’s wife and had left messages, but no call had ever been received. Major also testified, without contradiction, that he lost a very good customer and a $15,000 per month business because Hartford did not pay a legitimate claim for cargo and property damage after it had been notified; that Hartford did not supply him with any forms after the notification; and that he also had to pay a number of small claims because he was unable to contact his agent and process the claims. Major concluded that “we felt that we had no insurance. We had no service, ... so we cancelled the policy. . . . (W)e felt we had no protection.”

The field auditor for the plaintiff testified that “the short-rate penalty” in a total amount of $657.71 was added to the premiums of these policies because Major requested the cancellation of the policies himself. Under the circumstances of this case, the finding of the trial court that the plaintiff was entitled to the short-rate premium cancellation is against the manifest weight of the evidence.

Major also claims that the undisputed testimony discloses that a $1,000 mathematical error was made in computing the premiums under the personal injury policy. The field auditor of Hartford, who was the only witness to testify concerning the premium computation on this policy, testified that:

“The total earned premiums under the policy for bodily injury was seven thousand three hundred three dollars and one cent, ($7,303.01), for property damage was two thousand six hundred seventy-one fifty ($2671.50). Against these premiums we credited the deposit premium and record premiums during the year, of six thousand one hundred seven four one three ($6174.13) for bodily injury and three thousand two six one sixty-nine ($3261.69) for property damage.” (Emphasis added.)

The trial court allowed the sum of $1,538.69 for the item of damage rather than the sum of $538.69, which would have been the proper amount due if this testimony were correct. However, since the testimony of this witness on this item of damage, when considered as a whole, is rather confusing, the trial court is directed to hear evidence concerning this item in order to determine the exact amount of premium due under this policy. Major makes no contention in this court concerning the allowance of interest by the trial court.

For the foregoing reasons, the judgment of the trial court is affirmed, insofar as its finding that the workmen’s compensation premiums were properly computed, and as to the other portions of the claim, the judgment is remanded for further proceedings not inconsistent with the opinion.

Affirmed in part, reversed in part and remanded.

GOLDENHERSH and EBERSPACHER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James E. Hanover, Defendant-Appellant.
    Gen. No. 66-122.
    Fifth District.
    April 24, 1967.
    Joseph Cohn, of East St. Louis, for appellant; Richard E. Richman, State’s Attorney of Jackson County, of Murphysboro, for appellee.
   Opinion by

JUSTICE GOLDENHERSH.

Not to be published in full.


author: PRESIDING JUSTICE MORAN.

text:
    The People of the State of Illinois, Appellee, v. Danny Thompson, Appellant.
    Gen. No. 66-33.
    Fifth District.
    April 26, 1967.
    Theodore Van Winkle, of McLeansboro, for appellant; Frank Bonan, State’s Attorney of Hamilton County, of McLeansboro, for appellee.
   Opinion by

PRESIDING JUSTICE MORAN.

Not to be published in full.