text:
    Ernest M. Pearson, Plaintiff-Appellant, v. William E. Sutterlin, Defendant-Appellee.
    Gen. No. 50,758.
    First District.
    January 10, 1968.
    Rehearing denied and supplemental opinion February 16, 1968.

      Jurco, Damisch & Sinson, of Chicago (Junie L. Sinson and James R. Mitchell, of counsel), for appellant.
    Jacobs and McKenna, of Chicago (Royce G. Rowe and Barry L. Kroll, of counsel), for appellee.
   TRAPP, J.

In an action for personal injury, the jury found the issues for the defendant. The trial court denied plaintiff’s motions in the alternative for judgment non obstante veredicto and for a new trial.

The automobile collision at issue occurred at the intersection of Western Avenue and Catalpa Street. Western Avenue extends north and south and provides three lanes of traffic in each direction. There is a “divider” in the middle of the street described as being 4 feet wide and several inches high. The record contains no statement of the width of Western Avenue, but by scaling upon a photograph in evidence, it appears to be approximately 60 feet wide, so that the distance is about 28 feet between the divider and the curb on each side of that street. Catalpa intersects from the west to form a “T” at Western Avenue. The former is described as being 50 feet wide.

Photographs in evidence disclose that as to plaintiff’s car, the front bumper is bent back in a sharp angle almost at its middle, while the left front fender is pushed out or torn away. As to defendant’s car, the left front fender beginning at the inner left front headlight is creased and driven in.

It is argued upon appeal, that the evidence shows that plaintiff, proceeding north on Western Avenue began his signal for a left turn a block south of Catalpa, that he saw cars south of Bryn Mawr Street, which intersects Western Avenue some 400 or 500 feet north of Catalpa Street; that he started to make the left turn from Western into Catalpa but that defendant’s car accelerated at a tremendous rate of speed and struck plaintiff before he could clear the intersection.

There is ample evidence that defendant’s Chevrolet had been modified so that it possessed remarkable capabilities for acceleration. There is testimony that it could surpass the performance of Chicago police cars and that it won drag races. The record supports a conclusion that defendant was driving at a speed in excess of the speed limit. Defendant’s own testimony is that he did not see the automobile of the plaintiff until he, the defendant, was 60 feet distant from it.

This judgment, however, is affirmed upon a consideration of all of the evidence. The plaintiff testified that he drove north on Western Avenue to a point which, if extended west as a line, would be the middle of Catalpa Street, i. e., he was prepared to turn and enter the north side of Catalpa. He stopped a few seconds, his automobile then being headed north. At that time he first saw defendant’s car southbound in the center lane of Western, 150 to 200 feet south of Bryn Mawr. The latter is described as being 400 to 500 feet north of Catalpa. He stated that he was not able to estimate the speed of defendant’s vehicle at this point. During cross-examination plaintiff stated that he had his motor running, but that he was not moving because of the confusing speed and that he was afraid to move as he ordinarily would. Plaintiff stated that he looked for pedestrians crossing Catalpa, and then started very slowly, barely moving in low gear, at which time he saw defendant’s car 200 feet distant and “coming unusually fast.” Plaintiff testifies that he believes that he was “just about moving northwest” when he made this observation, or again that his car faced at an angle northwest. In a discovery deposition about which he was cross-examined, plaintiff stated that his car was partially in the northbound lane on Western Avenue and was just barely moving at a time when plaintiff estimated defendant’s speed at 60 miles per hour. Upon cross-examination plaintiff testified that at the time of impact his car was 10 or 15 feet from the line of the west curb of Western Avenue, i. e., it had moved an apparent 13 or 18 feet from the time he had observed defendant approaching unusually fast. Plaintiff, in describing the movement of his car at one point, states that he expected defendant to “by-pass him instead of swerving” to the west. One interpretation of this statement is that he expected defendant to pass to the east, or behind, his car.

A party’s own testimony may bar his action. McCormack v. Haan, 20 Ill2d 75, 169 NE2d 239. We have carefully examined all of the testimony given by plaintiff and have appraised it in the light of the testimony of other occurrence witnesses. Robertson, plaintiff’s only occurrence witness, testified that he was following some 200 feet behind defendant and that defendant was 75 to 100 feet distant when plaintiff was making a 90-degree turn, so that his car was facing northwest. He stated that at such time defendant’s car was going 45 miles per hour, and thereafter, accelerated rapidly. Lohse, a witness for defendant, testified that defendant was some 50 feet north of the intersection when plaintiff started to turn.

Plaintiff’s testimony shows that he started to make a left turn slowly across the path of an automobile first observed approaching at an undetermined rate of speed, and continued the turn, moving slowly as he again observed it approaching at an unusual rate of speed, once stated to be 60 miles per hour while, by his own testimony, the approaching car was then distant 200 feet.

This case comes within the ambit announced by the Supreme Court in Carter v. Winter, 32 Ill2d 275, 204 NE2d 755. There the court found contributory negligence as a matter of law. In this case a jury heard the testimony and found against the plaintiff, and the trial court denied post-trial relief.

Plaintiff’s primary argument urges the error of the trial court in permitting a Chicago police officer to testify as an expert as to where he, the police officer, had “determined” the place of collision between the cars to be relative to the intersection (this was stated to be some 30 feet south of the south curb of Catalpa Street), upon the ground that his qualifications to reconstruct an unobserved collision were not established in the record. We agree that several years of “investigation” of traffic accidents do not qualify one to express a descriptive opinion concerning what transpired when such investigative experience is defined as observing the position of the cars, providing medical attention for injured parties, arranging to have damaged vehicles moved from the traffic lanes, interviewing witnesses, and preparing and filing reports of the event. The “determination” of the place of impact made by the officer is far removed from that stated by all occurrence witnesses, except the defendant himself, and it, in fact, taxes this Court’s credulity. The evidence, however, is reviewed in the light of plaintiff’s version of the events, and we do not reach the issue of the admissibility of the officer’s “determination.”

The judgment of the trial court is affirmed.

Affirmed.

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

Supplemental Opinion.

We find that in his petition for rehearing plaintiff misapprehended the text of the opinion. The opinion does not say that plaintiff was guilty of contributory negligence as a matter of law. It does say that the verdict of the jury upon the issues of the negligence of the defendant and the contributory negligence of the plaintiff and the judgment entered thereon are affirmed.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE BURKE

license: Public Domain

text:
    Mildred Vokaty, Plaintiff-Appellant, v. Harold Vokaty, Defendant-Appellee.
    Gen. No. 51,815.
    First District, Second Division.
    January 12, 1968.

      Abrams, Linn, Carey, Maragos, and Richter, of Chicago (David Linn, B. John Mix, Jr., and Andre Mandeville, of counsel), for appellant.
    Jerry J. Brousil and Howard R. Weiss, of Chicago (Jerry J. Brousil and Howard R. Weiss, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

A decree was entered granting plaintiff a divorce from defendant on grounds of cruelty and adjusting the property rights of the parties. Plaintiff appeals from that part of the decree which purports to settle the property rights between the parties; no question is raised as to the propriety of that part of the decree granting the divorce.

Plaintiff’s complaint alleged, among other matters, that the parties, through their joint efforts throughout the duration of the marriage, acquired two parcels of real estate, one the family residence in Riverside, Illinois, and the other a summer home in Lake Geneva, Wisconsin. The complaint prayed for an adjudication of the parties’ property rights in the real estate and requested alimony in installments or in gross. Defendant filed an answer and a cross-complaint for divorce, denying plaintiff was entitled to a divorce, admitting the joint acquisition of the real estate by both parties, and praying for a decree of divorce in his favor on grounds of cruelty and desertion and an adjustment of the parties’ property rights.

Although no transcript of proceedings has been filed in this court, it appears from the admitted and undenied allegations of the pleadings, and from the judge’s trial notes incorporated into the common-law record, that the parties were married in January 1941 and that three children were born of the marriage, all of whom had reached majority prior to the commencement of this action. While it appears defendant earned $6,000 to $8,000 in the years 1964 and 1965, the parties managed to accumulate a size-able estate, inasmuch as the Riverside home was valued at $35,000 to $40,000, subject to a $9,700 mortgage, and the Lake Geneva home valued at $45,000, subject to no encumbrance. The parties also owned a 1963 Cadillac automobile, a Dodge automobile, eight shares of Northern Illinois Gas Company common stock, various items of personal property such as household furnishings, and the like, and a bank account, all of undetermined value.

The divorce decree awarded plaintiff all the household goods and effects situated in the Riverside home, in addition to the Dodge automobile, the shares of common stock, and the bank account. Plaintiff was ordered to convey her interest in both parcels of real estate to defendant and the Cadillac automobile was also awarded to him. The decree ordered defendant to assume all outstanding family financial obligations, including the existing mortgage on the Riverside property.

Defendant was further ordered to pay the sum of $40,000 to plaintiff “in full settlement of all property rights arising out of the marital relationship,” $25,000 of which was to be deposited by defendant into a local bank in trust for plaintiff, and the $15,000 balance of which was to be paid by defendant to plaintiff in installments of $100 per month until the full amount was paid.

The trust created by the decree ordered that the trustee pay the net income from the $25,000 to plaintiff in semiannual disbursements “for so long as the plaintiff may live or as may be directed by further order” of the court; that the corpus of the trust shall “be paid or distributed only upon or in accordance with the further order” of the court; and that in the event of the death of the plaintiff “the corpus of the trust shall be paid and distributed in accordance with said further order” of the court. The decree also contained the provision that the parties were thereafter barred and foreclosed from alimony, past, present and future, except as therein set forth. Subsequent to the rendition of the decree and after a hearing was held on plaintiff’s petition to vacate the decree, the trial court modified the decree and allowed the trustee to pay to plaintiff the sum of $100 per month from and out of the corpus of the trust.

Plaintiff maintains the decree, insofar as it purports to settle the property rights of the parties, is incomplete, vague and ambiguous. We agree.

We are in agreement with the proposition of law raised by defendant, that where a consideration of the evidence taken at trial is necessary for the determination of an issue raised on appeal and where the party raising the issue fails to preserve the evidence and fails to file a transcript of proceedings in the reviewing court or a “bystanders” report of proceedings, the court on appeal will indulge every presumption that the judgment or decree was supported by the necessary evidence where the judgment or decree recites that the court conducted a hearing and was fully advised in the premises. See Halperin v. Darling & Co., 80 Ill App2d 353, 225 NE2d 92; Public Federal Savings & Loan Ass’n of Chicago v. La Salle Nat. Bank, 76 Ill App2d 252, 222 NE2d 222; Calumet Federal Savings & Loan Ass’n of Chicago v. Markman, 50 Ill App2d 430, 200 NE2d 419. It is the duty, in such cases, of the party attacking the judgment or decree to preserve the evidence by one of the methods provided in order to show the judgment or decree is not supported thereby.

Here, however, the decree is defective on its face, obviating the necessity of preserving the evidence or a “bystanders” report of proceedings and filing a transcript thereof in this court. The award to plaintiff contains elements of both alimony in gross (a lump-sum settlement) and periodic alimony. The decree initially awards plaintiff the lump sum of $40,000, “in full settlement of all property rights arising out of the marital relationship” of the parties. This clearly is a settlement in gross in lieu of alimony. (See Ill Rev Stats 1965, c 40, Par 19.) The decree thereafter modifies the aforementioned award by ordering that $25,000 thereof be placed in trust for plaintiff, the administration of which was to be controlled by the court. The court reserved the power to control the payment of both the income and the corpus of the trust, even to the extent of providing that the court shall control the payment and distribution of the corpus after the death of plaintiff, thereby in effect making a last will and testament for her as to that part of the corpus remaining after her death.

Plaintiff was further ordered to convey her interest in the two parcels of real estate to defendant although it affirmatively appears from the record that both parties contributed to the acquisition thereof. There is no indication in the decree that this was the most equitable division of the property, albeit section 17 of the Divorce Act states that the court may order a party to convey his interest in real estate to the other party if it appears the latter is equitably entitled thereto. Ill Rev Stats 1965, c 40, Par 18; Yoselle v. Yoselle, 54 Ill App2d 354, 204 NE2d 129.

Nothing is contained in the decree concerning defendant’s cross-complaint for divorce. This point has not been raised on this appeal and the counsel for both parties in oral argument agreed that the decree of divorce in favor of plaintiff on her complaint served as an implied finding against defendant on his cross-complaint.

The decree as to the divorce is affirmed. The decree as to the disposition of the property, the adjustment of the property rights, and the alimony award to plaintiff is reversed and the cause is remanded for further hearings on these questions.

Decree affirmed in part, reversed in part and remanded.

MCNAMARA and LYONS, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lacey Vell Knowles, Defendant-Appellant.
    Gen. No. 50,870. (Abstract of Decision.)
    First District, Second Division.
    January 12, 1968.

      Leonard S. Whitcup and Edward M. Fiala, Jr., of Chicago, for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and David B. Selig, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE LYONS. Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Davis (Impleaded), Defendant-Appellant.
    Gen. No. 51,228. (Abstract of Decision.)
    First District, Second Division.
    January 12, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Anthony J. Onesto, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by PRESIDING JUSTICE BURKE. Not to be published in full.


text:
    Leo Roth, Plaintiff-Appellant, v. Paul Kanchier, Jr., Defendant-Appellee.
    Gen. No. 52,283. (Abstract of Decision.)
    First District, Second Division.
    January 12, 1968.
    Herbert R. Goldstein, of Chicago, for appellant; Epton, McCarthy, Bohling & Druth, of Chicago (Bernard E. Epton and Donald Segal, of counsel), for appellee.
   Opinion by PRESIDING JUSTICE BURKE. Not to be published in full.


author: MR. JUSTICE ABRAHAMSON

text:
    Harold E. Dato, et al., Plaintiffs-Appellees, v. Village of Vernon Hills, etc., Defendants-Appellants.
    Gen. No. 67-54.
    Second District.
    January 12, 1968.
    Rehearing denied February 1, 1968.

      Runyard, Behanna, Conzelman, Schultz & O’Meara, of Waukegan, and John P. Murray, of Chicago, for appellant.
    Hall, Meyer, Fisher, Holmberg, Snook & May, of Waukegan, for appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The Village of Vernon Hills brings this appeal from a decree entered February 28, 1967, by the Circuit Court of Lake County that ordered the Village to permit the plaintiffs to “construct, operate and maintain” a mobile home park on certain property within the Village and enjoined the Village from enforcing the provisions of certain amendments to their zoning ordinance against the property.

The property is a parcel of approximately 53% acres located on the east side of Highway 83 in the Village. It has a highway frontage of 1769 feet, a depth of 1324 feet and is presently vacant. The property immediately to the north is an unincorporated area of Lake County, is zoned for agricultural purposes and used for the growing of nursery stock. The property directly to the south is within the Village of Long Grove and although it is zoned residential it is used as a 300-acre experimental farm by Abbott Laboratories. Across Highway 83 to the west there is a large farm, also within Long Grove, but that portion of the farm directly across from the subject property is too low to cultivate. To the east, the property is bounded by a 210 foot right-of-way of Commonwealth Edison Company upon which are erected electrical transmission towers. The Village of Vernon Hills has an unusual shape, similar to a backward L, with this property being its westernmost extension.

In 1961, the Village adopted a comprehensive zoning ordinance that classified the west 20 acres of the parcel, fronting on Highway 83, as “B-l,” a business use, and the remainder as “R-5.” Under the R-5 Zoning Classification, mobile trailer parks were a permitted use and all uses permitted under R-5 were permitted, by a cumulative provision, under B-l. In the summer of 1963, Harold Dato contacted the owner of the property, Gordon Clavey, in regard to a possible purchase. When Dato learned that the property could be used for a mobile home park, he entered into a contract on December 31, 1963, to purchase the property from Clavey at a price of $4,500 an acre, provided that the necessary permits and licenses could be obtained. Dato proceeded to obtain surveys, engineering plans and a general plan from the National Mobile Home Association for the development of the property as a mobile home park. Water and sewer facilities were assured for the property under the terms of an agreement with the privately owned Vernon Hills Utility Company whereby Clavey paid $2,500 and Dato $2,500 with the understanding that Dato’s portion would be refunded from future connection fees from the property if his particular project did not materialize.

On May 4, 1964, Dato and Clavey met privately with one R. Bennett, a Village trustee, and advised him of their plans and discussed permit fees. Bennett indicated that he thought the plans were “O.K.” but advised them to discuss the matter informally with the other trustees before making an official application. On May 18, Dato and Clavey met Dr. Proctor, also a trustee and later, President of the Village, who also stated that the plans appeared satisfactory but advised against formal action until he could set up an informal meeting with the other trustees. At a regular meeting of the Village Board on May 19, a petition was presented by Wilfred Agosta, a private citizen, requesting that all property zoned R-5 in the Village be reclassified R-4, a zoning classification that prohibited trailer parks.

On June 2, Agosta’s petition was set for public hearing on June 19, before the Zoning Board of Appeals. On June 16, Dato presented his plans officially to the Board, requested the permits and deposited $4,900 towards the payment of the fees. The June 16 meeting of the Board was recessed until June 23 at which time the Board accepted the recommendation of the Zoning Board, pursuant to their hearing, that all property zoned R-5 in the Village be reclassified R-4 and informed Dato that his application for permits was insufficient. Dato presented additional plans on July 6 to correct the alleged insufficiencies but on July 7 the Board again accepted the recommendation of the Zoning Board. On July 14, Dato was advised that his application was denied, although no reason was given, and his deposit returned.

On January 8, 1965, Dato and Clavey brought suit against the Village to declare the zoning amendments invalid as to their property and the case proceeded to trial on March 1, 1966. In June, 1966, three months after the proofs were closed but prior to the decision of the trial court, the Village rezoned the B-l portion of the property to R-4.

The proceedings in the lower court included a full trial on the merits of the amended zoning ordinance itself including evidence as to value, uses of property in the immediate neighborhood, highest and best use and the other familiar factors to be considered in any litigation of a zoning ordinance. However, the trial court made no finding on those issues but decided the case on the basis of an equitable estoppel. The court filed a detailed and meticulous memorandum of opinion in support of its decision that found that “. . . the entire record as to the activities of the village board in its formal sessions, when taken in view of the suggestions made by various members, including the President of the Board, in informal meetings with petitioner, reveals an inequitable course of conduct on the part of the village which this court finds difficult to condone.” The court concluded that because of the inequitable conduct of the village and in view of the substantial expenditures made by Dato in reliance on the zoning that the Village was estopped from enforcing the restrictions of the amended zoning ordinance against the property.

As a general rule, property owners have no vested rights in the continued existence of any particular zoning classification. An exception to that rule has been recognized in those instances where there has been a substantial change of position, expenditures or incurrence of obligations by a property owner after the issuance of a building permit or in reliance upon the probability of its issuance. Cos Corp. v. City of Evanston, 27 Ill2d 570, 576, 577, 190 NE2d 364. The courts have concluded that in those cases the property owner has acquired a vested property right irrespective of any subsequent change in the zoning classification by a legislative body. Chicago Title & Trust Co. v. Palatine, 22 Ill App2d 264, 267, 160 NE2d 699. There has been no definitive expression as to when an expenditure has become sufficiently “substantial” to create a vested right.

The Village agrees that Dato has expended to date the sum of $2,438.87 for surveys, engineering and organizational expenses and has incurred obligations for a further $1,400. They contend that the $2,500 paid to the utility company cannot be considered an expenditure since it is to be repaid to Dato although on a basis that is somewhat uncertain. It would be a grave mistake, in the view of the Village, to conclude that these sums constitute a “substantial expenditure” since it would invite a property owner to insure the continuance of favorable zoning by a relatively small investment and thereby prevent any further legitimate legislative control over the use of the property. It is correctly pointed out that in the reported cases to date that expenditures have been described as “substantial” only in instances that involved far greater sums than $2,438.87 or even $4,938.87. Although we are not convinced that an expenditure of this size should not be considered substantial, we do not feel that it is necessary to rule on that point. In the case of Phillips Petroleum Co. v. City of Park Ridge, 16 Ill App2d 555, 149 NE 2d 344 (1958), the plaintiff, Phillips Petroleum had an option to purchase a certain lot located within the City that was zoned “D,” a commercial classification that included service stations as a permitted use. On October 19, 1956, Phillips applied for a building permit. The building inspector referred the application to the city council at its next regular meeting on November 6. The council passed a resolution that set up a commission to review all zoning within the city and ordered the building department to refuse all applications for service station permits pending the recommendation of that commission. Phillips demanded a permit and, when it was refused, brought a mandamus action against the City. The trial court dismissed the suit and the zoning ordinance was subsequently amended to prohibit service stations. The Appellate Court for the First District, in reversing the trial court, concluded that the positions of the parties had crystallized as of the date that application for the permit under the existing zoning was made and that the City had no authority to refuse the permit. The court recognized that the City could always rezone property but only in accordance with the provisions of the Cities and Villages Act and that the resolution of November 6 was an invalid attempt to “suspend” the existing zoning. It was not contended that Phillips had made any substantial expenditures or that they had a vested right in the class “D” zoning. The court stated, in part, at page 566, as follows:

“. . . It would be a strange perversion of the law to hold that the defendants could now take advantage of their own wrong and in effect say that by virtue of the subsequent amendatory ordinance the plaintiff could now be prevented from building and operating a filling station since it had not taken any steps under which it could have acquired a vested right, when the reason that it had not was because it was prevented from acting by the invalid resolution passed by the city council. The rights of the parties crystallized at the time when the permit was applied for and was improperly withheld. To hold otherwise would be to give the city, without statutory authority, a right to suspend a zoning ordinance.”

The Village would distinguish this case on the basis that the formal application by Dato for the permit was made on June 16 whereas the Board had commenced at least the preliminary procedures for rezoning including the requisite public hearing by that date. It is obvious, however, that the delay in the application was caused by the actions of the trustees themselves for reasons that must be characterized as, at best, questionable. It is not surprising that Dato followed the advice of the trustees and withheld his application but it would be obviously inequitable to permit the Village to take advantage of his accommodation to them to his material detriment. While, ordinarily, a court will not estop a municipality in matters that involve strictly public rights, it will do so “under special circumstances which would make it highly inequitable or oppressive to enforce such public rights.” Cities Service Oil Co. v. City of Des Plaines, 21 Ill2d 157, 161, 171 NE2d 605 (1961); People ex rel. Beverly Bank v. Hill, 75 Ill App2d 69, 73, 74, 221 NE2d 40 (1966); Paulus v. Smith, 70 Ill App2d 97, 109, 217 NE2d 527 (1966).

Under the circumstances disclosed by the record in this case, we cannot but agree with the trial court that the conduct of the Village was such as to estop it from any attempt to apply the zoning amendments to this property.

Judgment affirmed.

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


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Joseph Mason (Impleaded), Defendant-Appellant.
    Gen. No. 51,236.
    First District, First Division.
    January 15, 1968.

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

delivered the opinion of the court.

In a bench trial, Joseph Mason, Huery Davis and David Parker were found' guilty of the theft of an automobile. Mason was sentenced to one to three years in the penitentiary. In a separate appeal, defendant Mason contends that he was denied effective assistance of counsel because the same Assistant Public Defender represented the three defendants when they had antagonistic theories of defense.

On August 24, 1965, the Chicago police curbed an automobile in which the three defendants were riding. Defendant Mason was driving. The three were arrested after the police ascertained that Mason had no driver’s license and that the ignition had been tampered with. Later, the police determined that the car was stolen, and that it belonged to Lucius Shaw. At the trial, two police officers testified for the State and related the details of the arrest and the interrogation of each defendant.

For the defense, each of the three defendants testified in his own behalf. Davis testified first. He stated that he was inivited by Mason to take a ride in the car with Parker and Mason. He had not seen the car before, and Mason told him it belonged to a friend. Mason and Davis waited across the street in a liquor store for Parker to leave the laundromat where he worked and to join them. The three then drove away and were arrested shortly thereafter. The trial judge examined Davis, and he stated that he did not know who owned the car, and he knew that the car did not belong to either of the other two.

Parker testified next. He had known Mason and Davis for several months. He worked in a laundromat, and at about 1:00 a. m., Mason and Davis were parked in a car in front of the laundromat. He joined them when he “locked up the business,” and they went to get a drink. He had never seen the car before and told the police he did not know it was stolen.

Defendant Mason testified last. He stated that he and Davis had been drinking with Parker at the laundromat, and they were waiting for him to close. While there, “James Brown” joined them. Brown had a car, and “we all four gets in the car.” Brown drove them to a tavern, where Brown got out and entered. They were double-parked, with the motor running, and Brown, while standing in the tavern doorway, told them to park the car and to go in and drink. Mason “happened” to be the one who got under the wheel and, while driving, Davis told him the police were following, and Mason pulled over and parked. He did not know the car was stolen.

On cross-examination, defendant Mason said the police asked him questions about the possession of the car, and he told the police that “we had got the car from a girl friend of Parker’s. That was not the truth. I was lying to them then. The three of us kept switching stories back and forth. Davis said we got the car from Parker’s girl friend, too. That was a lie too. Parker said no. I can’t recall what he said at the time. But everybody went against each other, sort of, whatever one said, the other one stated something else. ... I told the police officers about Brown.”

Mason was examined by the trial judge regarding Brown and stated, “I gave my lawyer his address. I gave him the place he was working and living. Brown is single to my knowledge. The last time I saw him was when I was out on bond. He was at the laundromat. I asked him about this car and he said that he wasn’t going to take the blame for it.”

In rebuttal, one of the arresting police officers, James Tobin, testified that he had never heard the name Brown during the investigation nor at the time of the arrest of the three defendants.

Before finding defendants guilty of “theft,” the trial judge carefully reviewed the evidence. As to the testimony of Mason regarding Brown, the court remarked, “I don’t believe that story, I don’t believe that at all.”

Defendant Mason contends that the failure of the trial court to appoint separate counsel for Mason when the conflict in the defendants’ testimony was revealed requires reversal. Defendant asserts: “In the instant case, as the trial progressed, it became apparent that the interests of the three defendants were in conflict and that no lawyer could represent Davis and Parker and give complete loyalty to defendant Mason. When such conflict manifested itself, the court had a duty to suspend proceedings and appoint separate counsel. (Craig v. U. S., 217 F2d 355; People v. Robinson, 269 P2d 6; Lollar v. U. S., 376 F2d 243 (DC Cir 3/20/67) No. 20300.) The court must appoint separate counsel even though defendant did not specifically request separate and distinct counsel. (Lollar v. U. S., supra.) An indigent defendant with little education, cannot be expected to comprehend the existence of conflict or the need for separate counsel. People v. Harris, 155 F Supp 17. Nor is a reviewing court permitted to speculate that a conviction would have occurred even if the defendant was given effective assistance of counsel. ‘The right to have assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.’ Glasser v. U. S., 315 US 60; Craig v. U. S., 217 F 355; People v. Robinson, 269 P2d 6; Lollar v. U. S., supra; Anderson v. U. S., 352 F2d 945.”

In Craig v. United States, 217 F2d 355, it is said (p 359):

“We think it follows from the foregoing findings that although Craig was in no way ‘deprived’ of his right to independent counsel of his own choosing by any act of the District Judge or District Attorney, nevertheless, by reason of a combination of circumstances, not reasonably foreseeable by Court or counsel, he did not receive the effective assistance of counsel to which he was entitled under the Sixth Amendment, and that under the particular circumstances of this case he did not intelligently and voluntarily waive such right.”

Defendant relies heavily on Lollar v. United States, 376 F2d 243. There Lollar argued on appeal that requiring him to share an attorney with his codefendant deprived him of his constitutional right of effective assistance of counsel. The court agreed and said (p 246):

“It remains to be considered whether appellant was prejudiced by joint representation. It is settled that some prejudice, some conflict of interest, resulting from the joint representation must exist before one can be said to have been denied effective assistance of counsel. . . .
“We take as our guideline that Supreme Court’s admonition in Glasser that ‘ [t] he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.’ 315 US at 76. . . . [W] hen there are indications in the record that stir doubts about the effectiveness of joint representation, those doubts should be resolved in favor of the defendant, particularly where, as here, the record fails to indicate whether in assigning counsel the danger of prejudice from joint representation was considered.
“We hold, therefore, that only where ‘we can find no basis in the record for an informed speculation that appellant’s rights were prejudicially affected,’ can the conviction stand. ... In effect, we adopt the standard of ‘reasonable doubt,’ a standard the Supreme Court recently said must govern whenever the prosecution contends the denial of a constitutional right is merely harmless error. . . . Such a standard is clearly appropriate in the present context as well, where to find prejudice is to decide that the defendant has been denied effective assistance of counsel. When measured against this standard, the record in the present case fails to convince beyond a reasonable doubt that appellant was not prejudiced because of the joint representation.”

The State argues “the existence of Brown would have exculpated both Parker and Davis. Yet, neither of these two defendants testified that Brown was present. If Brown had really existed, the Public Defender would have been more than happy to bring out his presence on his direct examination of both Parker and Davis because this would have relieved all three defendants of guilt. The Public Defender never cross-examined Davis and Parker about the existence of Brown because there obviously never was any such person. . . . The judge, as trier of law and fact in the instant appeal, found all three defendants guilty. The judge did not believe any of the defendants’ testimony. If codefendants, Davis and Parker, had been found not guilty and the appellant found guilty, then real prejudice would have been manifested.”

The State also notes that no request for severance was ever made and no conflict of interest was ever suggested by the Public Defender.

In examining the evidence here in the light of the pronouncements of Lollar v. United States, we find no basis in the record for an informed speculation that Mason’s rights were prejudicially affected, nor do we find any prejudice upon which “to decide that defendant had been denied effective assistance of counsel.” The trial judge, in his lengthy examination of defendant Mason about Brown, elicited any further information that might have assisted the court in determining the credibility of Mason or the existence of Brown. For the court on its own initiative to have suspended this trial after the testimony of defendant Mason, in order to appoint separate counsel for Mason and to give the newly appointed counsel sufficient time for preparation, would have been a useless and empty gesture.

We conclude that this record fails to show that defendant Mason was prejudiced because of the joint representation by the Public Defender of the three defendants. For the reasons given, the judgment of the Circuit Court is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


author: MR. PRESIDING JUSTICE BURMAN

text:
    Frederic H. Tarnow, Lee Foxx, etc., Plaintiffs-Appellants, v. Richard G. Hershey, etc., Defendant-Appellee. Consolidated With Lee Foxx, etc., Plaintiffs-Appellants, v. Richard G. Hershey, etc., Defendant-Appellee.
    Gen. Nos. 51,362, 51,535. (Consolidated.)
    First District, First Division.
    January 15, 1968.

      Marvin J. Glink and Ronald M. Glink, of Chicago, for appellants.
    Russell J. Topper, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

In cause number 51362 Frederic H. Tamow and Lee Foxx, for themselves and on behalf of all members or policyholders of Blackhawk Mutual Insurance Company, (Blackhawk), appeal from an order dismissing their complaint seeking a declaratory judgment and other relief. In cause number 51535 Lee Foxx, for himself and on behalf of all members and policyholders of Illinois Automobile Insurance Company (Illinois) a reciprocal, appeals from a similar order. On the suggestion of plaintiffs that the causes have a common identity in ultimate fact, in issue, and in governing principles of law, we have consolidated the two separate appeals for purposes of review.

In the Blackhawk suit plaintiffs sought a declaratory judgment that an assessment levy made by the defendant, the Director of Insurance, on February 5, 1963, was without contractual or statutory authority and was therefore void. They further sought the return of the monies collected by the Director and an injunction restraining him from enforcing or continuing to enforce the collection of such assessments. In the Illinois suit, filed at the same time as the Blackhawk suit, plaintiffs sought similar relief from an assessment levy made against them on October 3,1961. In each of the cases the motion of the Director to strike and dismiss the complaint was sustained and the suit dismissed on the pleadings.

The basic facts are not in dispute since, on defendant’s motion to strike, all well-pleaded facts in the respective complaints are taken as true. The record shows that a decree of liquidation was entered in the Circuit Court of Cook County for the Blackhawk Company on February 27, 1957. The court ordered the Director of Insurance of the State of Blinois, to take possession of the property, business, and affairs of Blackhawk and liquidate the same in accordance with Article XIII of the Insurance Code of the State of Illinois. On February 5, 1963, an order was entered authorizing an assessment against all members and policyholders of Blackhawk who were members at any time during the twelve months ending on March 4, 1957. Shortly thereafter, the Director levied the assessment against the members or policyholders, and for the first time notified the members or policyholders of his claim by reason of such an assessment.

The same proceedings generally were followed in the Illinois case. The decree of liquidation, ordering the Director to liquidate in accordance with Article XIII, was entered on November 15, 1956, in the Circuit Court of Champaign County, Illinois. On May 7, 1957, an order was entered removing the liquidation proceedings to the Circuit Court of Cook County. On May 16, 1960, an order was entered authorizing an assessment against all members and policyholders of Illinois who were members and policyholders at any time during the twelve months ending November 15, 1956. On or about December 27, 1961, plaintiffs received their first notification of the assessment.

Plaintiffs contend that inasmuch as the Director of Insurance, as liquidator, failed to notify the members or policyholders of “Blackhawk” and “Illinois” of his claim for an assessment until more than five years after the termination of their policies, the assessments were invalid and void because they failed to comply with the notice requirements of the Illinois Insurance Code. Specifically, they argue that the Director, in ordering an assessment in the course of liquidation proceedings under section 207 of the Code, is bound by the one year notice requirements announced in section 60.

The sections of the Illinois Insurance Code dealing with assessments by the Director of Insurance, as liquidator, are found in the following statutory provisions:

Section 60 (c 73, § 672, Ill Rev Stats 1963) “Procedure when insufficient assets are possessed by company—
“(1) Whenever the Director shall find that the admitted assets of a company subject to the provisions of this article are less than the aggregate of (a) its liabilities and (b) the minimum surplus required to be maintained by section 43, he shall notify the company in writing of the amount of such deficit and require that such deficit shall be made good within such period, which shall not be less than thirty nor more than ninety days, as he may designate. The Director shall have power by service of written notice to require the company to discontinue the issuance of new policies while such deficit exists. If the contracts issued by the company contain a provision for a contingent liability the Director shall order 'the board of directors or trustees of the company to levy an assessment for the purpose of supplying such deficiency, against each member in accordance with the terms of his policy and only on account of losses and expenses incurred while his policy was in force. If the Director finds that the company will make good the deficit or a part thereof from sources other than an assessment, he may permit a reduction in the amount of the assessment to the extent of the sums to be obtained. No member shall be liable for am> assessment unless notified of the company’s claim therefor within one year after the termination of the policy whether by expiration, cancellation or otherwise. (Emphasis ours.)
“(2) If policies containing provisions for a contingent liability are outstanding, and the company fails to levy an assessment within twenty days from the date of such order, or if said deficiency is not repaired within the period specified in the Director’s notice, the company shall be deemed insolvent and the Director may cancel said company’s certificate of authority and shall proceed against it in accordance with Article XIII.
“(3) If, while such deficit exists, any officer, director or trustee of the company delivers, or knowingly permits a new policy to be delivered, either after notice is given by the Director to discontinue the issuance of new policies or after the expiration of the period within which such deficit is to be made good, such officer, director or trustee shall be fined not less than two hundred dollars, and not more than five thousand dollars for each offense. 1937, June 29, Laws 1937, p 696, § 60.”

The above section 60 was amended in 1965 by the addition of the following language to the end of the paragraph (1):

“Nothing contained in this paragraph shall be construed to limit or restrict the authority of any liquidator, conservator or rehabilitator acting under the provisions of Article XIII or XIII% of this Act.”
Section 83 (c 73, § 695, Ill Rev Stats 1963) “Procedure when insufficient assets are possessed by reciprocal—
“(1) Whenever the Director shall find that the admitted assets in excess of all liabilities of a reciprocal are less than the amount required by section 66(2), the Director shall proceed in the manner set forth as provided in section 60 applicable to mutual companies and the reciprocal, its attorney-in-fact or any officers thereof, shall be subject to the same requirements and penalties in said section provided.
“ (2) The attorney-in-fact of any such reciprocal may repair such deficiency within the period designated by the Director, by advancing the amount or any part thereof, at an interest rate not exceeding seven percentum per annum. The funds so advanced shall not be treated as a liability of such reciprocal and such advance including interest thereon shall be repaid only out of the surplus funds of the reciprocal in excess of the amount required by section 66. As amended 1951, July 16, Laws 1951, p 1565, § 1.”
Section 207 (c 73, § 819, Ill Rev Stats 1963) “Levy of assessments.
“(1) In the event of the entry of an order directing the Director to rehabilitate or liquidate any company which has issued assessable policies or contracts of insurance, the Director may, with leave of court, at any time during the pendency of the proceeding, levy such assessment or assessments against the members or subscribers of the company, as may be necessary to pay all allowed claims in full, to the same extent that such assessment or assessments might have been levied by the board of directors, attorney-in-fact or other governing body of the company. Such assessment or assessments shall become due and payable upon the levy thereof by the Director and shall cover the excess of the probable liabilities over the reasonable value of the assets, together with the cost of collection and probable percentage of uncollectibility thereof. The total of all such assessments against any member or subscriber shall not exceed the maximum amount fixed in the contract of that member or subscriber.” (Emphasis ours.)
“. . . As amended 1961, Aug 9, Laws 1961, p 3034, §1.”

Paragraph (1) of the above section 819 was amended in 1965 to read as follows:

“(1) In the event of the entry of an order directing the Director to rehabilitate or liquidate any company which has issued assessable policies or contracts of insurance, the Director may, with leave of court, at any time during the pendency of the proceeding, levy such assessment or assessments against the members or subscribers of the company, as may be necessary to pay all allowable claims in full, to the same extent except as otherwise provided in this section that such assessment or assessments might have been levied by the board of directors, attomey-in-fact or other governing body of the company. Such assessment or assessments shall become due and payable upon the levy thereof by the Director and shall cover the excess of the probable liabilities over the reasonable value of the assets, together with the cost of collection and probable percentage of uncollectibility thereof. The total of all such assessments against any member or subscriber shall not exceed the maximum amount fixed in the contract of that member or subscriber. Only those persons shall be subject to any such assessment who were members or subscribers during the period beginning 3 years before the date the Director of Insurance last serves notice on the company prior to an order of liquidation or rehabilitation to discontinue the issuance of new or renewal policies.” (C 73, § 819, Ill Rev Stats 1965.)

The plaintiffs insist that the provision in section 207 that the Director of Insurance may levy an assessment “to the same extent that such assessment or assessments might have been levied by the board of directors” clearly means that the Director is bound by the notice requirements of section 60 in the same way as the board of directors of an insurance company are bound by that section of the code. Defendant, on the other hand contends that other provisions of section 207 are determinative as to its meaning. The Director points out that he may levy an assessment “at any time during the pendency of the proceeding” ; and that the purpose of said assessment is “to pay all allowed claims in full.” The Director argues that the only clear meaning of these phrases is that he may levy an assessment at any time during the pendency of the liquidation proceedings.

The primary purpose of this court in construing a statute is to determine the intent of the lawmaking body as it is revealed in the language used by the legislature. “Courts will construe the details of an act in conformity with its dominating general purpose, will read text in the light of context, and will interpret the text so far as the meaning of the words fairly permits so as to carry out in particular cases the generally expressed legislative policy.” People v. Gibbs, 413 Ill 154, 163, 108 NE2d 446. (Citations omitted.) The court should interpret the statute so as to give it efficient operation and effect as a whole. Pliakes v. Illinois Liquor Control Commissioner, 11 Ill2d 456, 460, 143 NE2d 47. If the language employed in a statute admits of two constructions, one of which renders the statute of no effect, and the other of which makes the statute a reasonable enactment, that construction which renders the statute effective should be followed. Childers v. Modglin, 2 Ill App2d 292, 119 NE2d 519.

By the language it used in section 60 the legislature clearly and plainly stated that notice of the company’s claim for assessment against its members must be given within one year after the termination of the policy. Had the general assembly in its wisdom intended that this clause should also apply to the Director in liquidation proceedings under section 207 they could simply have provided for the same procedure. There is no question but that, as the plaintiffs point out, the board of directors of “Blackhawk” and “Illinois” could not have validly levied an assessment at the time when the Director did in the instant case. However, as the Director correctly points out, section 60 is plainly directed to the replacement of deficit assets for a going company as well as to the payment of currently accrued claims, while section 207 grants assessment powers to the Director in liquidation proceedings. There are significant distinctions between the two situations.

As stated by the New York Court of Appeals in Beha v. Weinstock, 247 NY 221,160 NE 17:

“The company, as a going concern, from day to day could estimate its apparent contingent liabilities for losses which had occurred, and make from time to time the assessments necessary to meet these losses. Under such circumstances it was reasonable that the company should notify the policyholder as soon as possible, or at least within the year provided by statute. A different situation confronted the liquidator.” (160 NE at p 20.)

In holding that the one-year notice limitation did not apply to assessments levied in liquidation proceedings, under the direction of the Superintendent of Insurance, the court there stated that the winding up of a mutual insurance company, of necessity, took time. “It could hardly be expected that the legislature intended to force the Department of Insurance to collect all of the assets within a definite period of time.” The court in Beha could see no reason for legislative action thus limiting the powers of the Director in liquidation proceedings.

The interpretation of the statute before us contended for by the plaintiffs would sorely limit the power of the liquidator in proceedings under section 207 “to pay all allowed claims in full.” We cannot assume that the foregoing provision would have been included by the legislature had that body intended for the one year notice provisions of section 60 to apply to liquidation proceedings under section 207. Such an intention would have rendered the grant of power to the Director as liquidator practically nugatory. To determine the assessment necessary to pay all allowed claims in full must take considerable time, and in the case at bar it took five years. No contention is made here that the Director could have accomplished his job in the space of one year’s time.

It is also worthy of note that section 207 allows the Director to levy assessments “at any time during the pendency of the proceeding.” If the interpretation of section 207 sought by plaintiffs was accepted by this court there would be a conflict between the foregoing phrase and the one year notice of assessment requirement of section 60. Such a conflict cannot be considered expressive of legislative intent. Childers v. Modglin, 2 Ill App2d 292,119 NE2d 519.

Section 207 was enacted by the legislature as part of the 1937 Insurance Code; for the first time in this section the state was given the statutory power to assess. It is unbelievable that our legislature intended to defeat, for all practical purposes, the new powers granted to the Director to carry out the new section’s announced purpose. Section 207 clearly demonstrates that the legislature in Illinois intends to have a strong system for the protection of the public when mutual insurance companies require liquidation by the state. For the purpose of carrying out what we conceive to be the legislative intent in the enactment of section 207, and for the purpose of interpreting the statute so as to render its operation logical and efficient, we hold that the Director of Insurance in carrying out his assessment power under section 207 is not limited by the notice requirements of section 60. The Director may assess “at any time during the pendency of the proceeding,” for the purpose of paying “all allowed claims in full.”

We are aware that in Central Mut. Ins. Co. v. Gauss, 292 Mich 309, 290 NW 808, there is language that may give comfort to the plaintiffs. There are some similarities between the statute involved in that case and the one before us in the case at bar. While the interpretation by the court of the Michigan statute is not controlling here, we point out that the Michigan legislature chose to limit the power of assessment of the Commissioners of Insurance to the same powers possessed by the officers of insurance companies. Also, it does not appear from the Michigan statute that the state has the power to assess at any time during the pendency of the liquidation proceeding, a power provided for in section 207.

For the reasons given we find that the order entered dismissing the consolidated lawsuits was correct and is affirmed.

Affirmed.

MURPHY and ADESKO, JJ., concur.


author: MR. JUSTICE ADESKO

text:
    Alyce Schott, Administratrix of the Estate of Robert Schott, Deceased, Plaintiff-Appellee, v. Atchison, Topeka & Santa Fe Railroad, a Foreign Corporation, and The Belt Railway Company of Chicago, a Corporation, Defendants-Appellants.
    Gen. No. 51,629.
    First District, First Division.
    January 15, 1968.
    Rehearing denied February 15,1968.

      Richard F. Koproske and Glen H. Carrier, of Chicago (Glen H. Carrier, of counsel), for appellant.
    Harold A. Liebenson and Milroy Blowitz, of Chicago, for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Robert Schott filed suit against the Santa Fe Railroad for injuries sustained when the automobile he was driving was struck by a Santa Fe train. The train was being operated on railroad tracks belonging to the Belt Railway Company of Chicago (Belt), and it was made a party defendant charged with negligence in the operation and maintenance of the railroad crossing. Robert Schott died from other causes three months before the case was called for trial and his administratrix was substituted as the plaintiff. Santa Fe was dismissed as a party to the cause after the jury was selected and opening statements were made. The first trial resulted in a deadlocked jury. The cause was retried by a second jury and a verdict in favor of the plaintiff was returned in the amount of $10,000. This jury also found, in its answer to a special interrogatory, that Robert Schott was not guilty of contributory negligence.

Belt’s post-trial motion to set aside the answer to the special interrogatory and enter judgment notwithstanding the verdict, or in the alternative grant a new trial, was denied. Defendant appeals from the denial of its motions for a directed verdict during the trial, the entry of the judgment, and from the denial of its post-trial motion.

Belt’s theory of the case is that plaintiff failed to prove a prima facie case; that plaintiff failed to show that any negligence on the part of the Belt was the proximate cause of his injuries; that plaintiff failed to prove how the accident happened and without this element any one of several possible causes not attributable to the negligence of the Belt could have produced the injuries; that plaintiff failed to prove due care on the part of Robert Schott and he was guilty of contributory negligence as a matter of law; and that the court erred in giving certain instructions to the jury.

The scene of the occurrence was in the 4900 block of South Lawndale Avenue. This street, which runs in a general North-South direction, is twenty-feet wide and the only through street between Kedzie Avenue and Pulaski Road, which runs South from 47th Street. Lawn-dale is heavily traveled by both commercial and private vehicles. There are five sets of railroad tracks which cross Lawndale Avenue. The four northern sets of tracks belong to the Indiana Harbor Belt Railroad. The fifth set, where the accident in the instant cause occurred, was owned by the defendant, Belt. The distance from the South rail of track number four to the North rail of track five is 101 feet and six inches.

As one proceeds South on Lawndale and approaches the railroad crossing, you go up an incline to reach the first set of tracks. When you reach the second set, the road levels out. The 100 feet between the Indiana Harbor tracks and the Belt track is a “washboard” road, very bumpy and patchy, with some of the holes being two inches deep.

The only sign designating the Belt track is a crossbar. There is no flasher, no light of any kind, no gate, no permanent watchman and no bell. There is a city streetlight in the middle of the crossing, but the testimony as to whether this light was working the night of the occurrence is conflicting. Although the Belt produced evidence that the crossbar had been treated with reflectorized material in late 1957, or early 1958, other witnesses testified that the crossbar was dirty, weathered, not visible at night and did not contain any reflectorized material.

Schott was a Chicago police officer. He had been visiting the home of a fellow officer who lived one block from the railroad crossing. At about 1:15 a. m., Schott left to go home and proceeded South on Lawndale Avenue. His speed was about 20 miles per hour until he started up the incline at the crossing when he reduced his speed to 10 miles per hour. Schott had never driven in this area before. Although Schott died prior to the trial, both parties stipulated to the use of his deposition as evidence. Schott testified:

“I thought I was over the railroad tracks. I went down another short incline and I ran into — I hit the train. I didn’t see anything; boom, I hit it.”

He thought he had gone over three sets of tracks and traveled 30 feet when he ran into something. He neither saw nor heard any warnings of any kind.

The first point raised by defendant is that plaintiff failed to prove the proximate cause of the accident. It is argued that there are several possible causes of the injury and because plaintiff failed to prove which one led to his injuries, defendant was entitled to a directed verdict at the close of plaintiff’s evidence. The case of Shipley v. Southern Pac. Co., 44 Ill App2d 1, 193 NE2d 862 (1963), is relied upon to sustain this argument. In Shipley, the plaintiff’s theory was that the load in a boxcar had shifted during transit as a result of “humping” operations. The court concluded that plaintiff failed to show that an impact caused the load to shift, nor did he show which of the two carriers caused the impact. We do not feel the Shipley case is controlling here. The plaintiff’s theory in the case at bar is that the railroad crossing was dangerous. Sufficient evidence was produced to demonstrate this fact. Taking the evidence in the light most favorable to the plaintiff, we find that the road was washed out and bumpy, making it difficult to drive on. The only indication of a railroad track was a weathered and dirty crossbar which was difficult to see. The city streetlights were out. The crossing was on a heavily traveled street which was the only through street for about a half mile in each direction. In light of this evidence, we believe the trial judge was correct in refusing to direct a verdict for defendant.

Belt’s second point is that plaintiff did not prove his freedom from contributory negligence and that he was guilty of such negligence as a matter of law. The jury’s answer to the special interrogatory was that plaintiff was not guilty of contributory negligence. In Dee v. City of Peru, 343 Ill 36, 174 NE 901 (1931), an accident occurred in bright daylight on a drawbridge which had a gate undisputedly visible from more than 100 feet. The Supreme Court held that “one having an unobstructed view of a dangerous crossing on a highway is not justified in closing his eyes or failing to look in reliance upon the assumption that that highway is free and open to travel.” Defendant’s reliance on Dee to hold the plaintiff in the instant case guilty of contributory negligence is misplaced. The factual distinction between the two cases is clear. Plaintiff proved he was proceeding at low speed. It was 1:15 a. m. It was pitch-dark. He saw no lights, heard no warnings. This was sufficient to establish the negative aspect of the proposition that he was not guilty of contributory negligence.

This court is familiar with the cases which hold that ordinarily a train on a crossing is sufficient warning to any traveler. However, in Petricek v. Elgin, J. & E. Ry. Co., 21 Ill App2d 60, 157 NE2d 421 (1959), this court stated that this general rule is based on the principal element of perceptibility. We find that issue also present in the instant case. Whether the train on the track was adequate warning or whether the Belt was negligent in failing to have a better warning system because of the nature of this crossing was a question of fact properly submitted to the jury.

The final point raised by defendant is that the jury was improperly instructed. Over defendant’s objection, the following instruction was given to the jury:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
“ ‘Hereafter, at all of the railroad crossings of highways and streets in this state, the several railroad corporations in this state shall construct and maintain said crossings, and the approaches thereto, within their respective rights of way, so that at all times they shall be safe as to persons and property.’ ” IRS, c 114, § 62, p 1824.
“If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was negligent before and at the time of the occurrence.”

This is precisely the same instruction given the case of McElligott v. Illinois Cent. R. Co., 37 Ill2d 459, 227 NE2d 764 (1967). The Supreme Court held that this instruction is erroneous because it fails to reflect judicial modification of the statute. However, in McElligott the trial judge, in his discretion, had granted a new trial. The Supreme Court was affirming the actions of the trial judge. In the instant case the trial judge did not feel that the instruction prejudiced the defendant and refused to grant a new trial. We do not feel this was an abuse of discretion.

Defendant also objects to plaintiff’s issues instruction. The defense did not submit any issues instruction of its own. The instruction was in the approved form of IPI 20.01 and set forth the allegations of the complaint. We find no error here.

The third and final error raised is the refusal of the court to give defendant’s instruction No. 17 which was IPI 73.01. This instruction was properly refused because plaintiff did not know that he was on a railroad crossing. His testimony was that he believed he had passed the crossing after going over what he thought were three sets of tracks. If plaintiff’s belief in this fact was negligence, the jury could have so found under the other instructions given.

For the foregoing reasons, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BURMAN, P. J. and MURPHY, J., concur.


text:
    Lake Shore Savings and Loan Association, a Federally Insured Association, Plaintiff-Appellee, v. American National Bank and Trust Company, a National Banking Corporation, as Trustee, etc., Defendant, and Irving Atkins, Defendant-Appellant.
    Gen. No. 51,826.
    First District, First Division.
    January 15, 1968.

      L. Louis Karton and Marovitz, Powell & Pizer, of Chicago, for appellant.

      Alex Janoski and Mitchell Kilanowski, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This appeal is taken by defendant, Irving Atkins, from an order denying his petition pursuant to section 72 of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 72) to vacate a default judgment entered against him in a foreclosure proceeding.

The record reveals that plaintiff, Lake Shore Savings and Loan Association, filed a suit to foreclose a $60,000 mortgage. The mortgage had been executed by the American National Bank and Trust Company, as trustee, under a land trust. Under the terms of the trust the defendant, Atkins, was the sole beneficiary. The bank, as trustee, and Irving Atkins were both made parties defendant and each was served with summons. No appearance or answer was filed by either defendant, and an order of default was duly entered against each. The court then entered an order referring the cause to a Master in Chancery. The Master reported a balance due of $58,977.30 plus costs, expenses, attorney’s fees and money advanced for the payment of real estate taxes. In addition, the Master made a finding of fact that Atkins was obligated to pay plaintiff’s expenses amounting to $20,-209.84, incurred in the repair and maintenance of the premises. The Master further found that Atkins was personally liable for any deficiency because he was guilty of fraud and deceit in obtaining the loan. On March 15, 1965, the Master’s Report was approved by decree of the court. After a foreclosure sale of the property the court entered judgment against the defendant, Irving Atkins, holding him personally liable for a deficiency of $27,548.-26. This judgment was entered on April 20,1965. On May 25, 1965, Atkins was served with execution, and on June 8, 1965, he filed a petition to vacate the default judgment of April 20th. His petition to vacate under section 72 was supported by affidavit. Plaintiff moved to strike the petition and his motion was sustained. This appeal followed.

In his affidavit, Atkins states, under oath, that he has a good and meritorious defense. He further states that when he was served with summons he was advised by his attorney that the complaint did not allege a cause of action against him and did not contain any allegations upon which a deficiency judgment against him could be based. His first knowledge of the deficiency judgment entered against him was when he was served with execution.

The defendant contends, on appeal, that the court erred in finding him guilty of fraud and deceit in the absence of any allegations in the complaint to inform him that such a claim would be made against him. Secondly, he contends that the court was without jurisdiction to enter a deficiency judgment against him because he was not the maker of the note or the mortgage. We believe that the defendant’s first contention is dispositive of this appeal.

The question as to whether the defendant was properly found to have committed fraud in procuring the mortgage loan requires the setting out of the pertinent allegations of the complaint. In paragraph one the plaintiff seeks to foreclose a mortgage and the Bank, as trustee, and Atkins are made parties defendant. In paragraph three (c) the Bank alone, as trustee, is named as the mortgagor of the premises. In paragraph three (k) the Bank, as trustee, is named as the owner. In paragraph three (1) the following appears: “Name or names of persons, in addition to said owner or owners, who are joined as defendants whose equitable rights to redeem is sought to be barred: Irving Atkins.” In paragraph three (m): “Name or names of persons claimed to be personally liable for deficiency: American National Bank and Trust Company, a National Banking Corporation, as Trustee . . . and Irving Atkins.” In the prayer for relief, the plaintiff prays for the foreclosure of the mortgage, for a personal deficiency decree, for the appointment of a receiver after sale, in the event of a deficiency, and for the appointment of a receiver pendente lite.

The gravamen of the complaint is a foreclosure of a mortgage on a note executed by a bank, as trustee, and for a deficiency judgment in rem. The defendant, Atkins, did not sign the note or the mortgage. The Master found that Atkins obtained the loan upon fraudulent and deceitful representations. He concluded therefrom that the defendant was personally liable for any deficiency following the sale of the mortgaged premises and the court approved these findings.

Plaintiff’s complaint, however, is barren of any allegations charging Atkins with fraud and deceit. The very object and purpose of pleadings require that the parties be confined to the matters contained therein, and therefore, no evidence can be considered except that which tends to prove well pleaded facts. It is a well established rule that a party to a suit, either at law or equity, cannot have relief under proofs which are not supported by allegations of fact. Stowell v. Satorius, 413 Ill 482,109 NE2d 734. A judgment cannot be had against parties for fraud and deceit when no facts are alleged in the complaint to sustain it. Cummins v. Commonwealth Edison Co., 64 Ill App2d 320, 213 NE2d 18.

Fraud is never presumed. It must be alleged or proved only by allegations and proof of facts constituting the fraud. ILP, Fraud, § 36. A party charged with fraud must be apprised of the facts and circumstances that allegedly constitute his fraudulent actions so that he knows what he is called upon to answer. Tabbert v. Guerine, 342 Ill App 444, 96 NE2d 642. The defendant, in the instant case, was not informed by the complaint that he would be called upon to answer charges of fraud in the foreclosure proceedings, therefore, the Master exceeded his authority in hearing evidence and making a finding on this issue, and consequently the court’s order approving the Master’s Report is void. Kryl v. Zelezny, 290 Ill App 599, 8 NE2d 223; Armstrong v. Obucino, 300 Ill 140, 133 NE 58; Forsberg v. Harris, 27 Ill App2d 159, 169 NE2d 388. See also, City of Chicago v. Chatham Bank of Chicago, 54 Ill App2d 405, 203 NE2d 788.

Plaintiff states in its brief that the purpose of section 72 is merely to correct errors of fact and is not available to a petitioner as a means of correcting errors of law. This is not a correct statement of the law. A motion under section 72 is proper for the correction of errors of law apparent on the face of the record. Collins v. Collins, 14 Ill2d 178, 151 NE2d 813. In the instant case the entry of a personal deficiency decree based on fraud, where no facts constituting fraud were set forth in the complaint, presents an error of law apparent on the face of the record, and therefore, is properly brought to the court’s attention by motion under section 72.

The plaintiff next contends that the defendant’s motion to vacate the judgment against him, under section 72, was properly denied because the defendant failed to exercise diligence in presenting its defense. We cannot agree. When a court exceeds its authority in rendering a judgment that judgment is subject to collateral attack. Armstrong v. Obucino, 300 Ill 140, 133 NE 58. We have already pointed out that the court in the instant case exceeded its authority in finding the defendant guilty of fraud and in ordering a personal deficiency judgment on the basis of that finding. A motion under section 72 is an appropriate method for vacating a void judgment. Auto Exchange, Inc. v. Litberg, 34 Ill App2d 329, 181 NE2d 359. Oak Park Nat. Bank v. Peoples Gas Light & Coke Co., 46 Ill App2d 385, 197 NE 2d 73. As the judgment originally entered was void, we need not consider whether defendant exercised due diligence in terms of section 72. Oak Park Nat. Bank v. Peoples Gas Light & Coke Co., 46 Ill App2d 385, 197 NE2d 73.

We find no merit to plaintiff’s contention that because Atkins failed to appeal from the March 15th foreclosure decree he cannot object to the personal deficiency judgment of April 20th. The fact that the court properly exercised its authority in entering the foreclosure decree does not prevent the judgment of April 20th, in which the court exceeded its authority from being subject to collateral attack. We have reviewed Sitek v. Thomas, 80 Ill App2d 32, 225 NE2d 115, cited by plaintiff during oral argument and find that it is inapplicable on the facts.

For the reasons stated we hold that the deficiency judgment against defendant, Irving Atkins, is void. The order of the Circuit Court denying the petition of Irving Atkins to vacate the deficiency judgment heretofore entered by the trial court against him is reversed.

Reversed.

ADESKO and MURPHY, JJ., concur.


text:
    Continental Distributing Co., Inc., a Corporation, Plaintiff-Appellant, v. Harry Keller, Defendant-Appellee.
    Gen. No. M-51,980.
    First District, First Division.
    January 15, 1968.
    Rudnick & Wolfe, of Chicago (Lester D. Foreman and Paul D. Rudnick, of counsel), for appellant.
    Morris A. Gzesh, of Chicago, for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Plaintiff appeals from an order which struck plaintiff’s amended complaint and dismissed the action. Plaintiff, a wholesale liquor dealer, sued defendant on a guaranty by which defendant guaranteed payment of liquor purchases by a retailer. The trial court found the guaranty was void because it violated the Illinois Liquor Control Act (Ill Rev Stats, c 43).

The amended complaint alleges that plaintiff, a wholesale liquor “distributor,” would not extend open account credit to the “Blue Flame Lounge, Inc.,” a “retailer”; that defendant, Harry Keller, in order to induce plaintiff to sell the lounge on a “thirty-day open account basis,” executed on August 14, 1961, his written guaranty, wherein he unconditionally guaranteed “at all times the payment when due for any purchases heretofore made or which may hereafter be made from Continental Distributing Co., Inc. by Blue Flame Lounge, Inc., ... to the extent of $1,000.00”; that on February 5,1963, plaintiff sold to the lounge merchandise in the sum of $580.62, which the lounge used and failed to pay for; that a judgment obtained by plaintiff against the lounge is uncollectible, and defendant Keller has refused to pay the $580.62.

Defendant’s motion to strike the amended complaint and to dismiss the action basically alleged that the agreement was “unlimited as to time as to any open account sales” and “is illegal being against public policy such purported agreement stimulating the extension of merchandising credit to a retailer where not warranted . . . ; further, such purported agreement circumvents and violates Illinois Revised Statutes, 1965, chapter 43, section 122.”

The Liquor Control Act was passed for the regulation of the liquor trade, for the purpose of fostering and promoting sound and careful manufacture, sale and distribution of alcoholic liquors, in order to foster temperance in the consumption of such liquors, in the interest of the protection of health, welfare and safety of the people (25 ILP, Liquor, § 14). Section 94 of the Liquor Control Act provides:

“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 and promoted by sound and careful control and regulation of the manufacture, sale and distribution of alcoholic liquors.”

Section 122 of the Act provides as follows:

“122. Receiving money or credit from manufacturer or distributor — Report of delinquent retail licensees —Cure of delinquency — Revocation of license.] § 4. It is unlawful for any person having a retailer’s license or any officer, associate, member, representative or agent of such licensee to accept, receive or borrow money, or anything else of value, or accept or receive credit (other than merchandising credit in the ordinary course of business for a period not to exceed 30 days) directly or indirectly from any manufacturer, importing distributor or distributor of alcoholic liquor, or from any person connected with or in any way representing, or from any member of the family of, such manufacturer, importing distributor, distributor or wholesaler, or from any stockholders in any corporation engaged in manufacturing, distributing or wholesaling of such liquor, or from any officer, manager, agent or representative of said manufacturer. It is unlawful for any manufacturer or distributor or importing distributor to give or lend money or anything of value, or otherwise loan or extend credit (except such merchandising credit) directly or indirectly to any retail licensee or to the manager, representative, agent, officer or director of such licensee. . . .
“No right of action shall exist for the collection of any claim based upon credit extended to a distributor, importing distributor or retail licensee contrary to the provisions of this Section.”

In considering section 122, in Weisberg v. Taylor, 409 Ill 384, 100 NE2d 748 (1951), it is said (p 387):

“[I]t is now well recognized, that the State may, in curbing intended evils, impose regulations on the liquor traffic more stringent than would be permitted or allowable in other businesses. . . . Our first inquiry, therefore, is whether or not the imposition of credit restrictions has any relationship to the public health, safety, or welfare within the police powers of the State.”

And on page 388:

“The evils of the ‘tied house’ have long been recognized and most, if not all, of the States, including our own, have prohibited the furnishing by manufacturers or distributors of buildings, bars, equipment, or loans of money to a retailer. The restriction or curbing of credit by legislative enactment is but a logical extension of these prohibitions and is directly connected with the evils long recognized in the ‘tied house.’ Moreover, few people, if any, would deny that the restriction of credit reduces the power to buy and a reduction in the power to buy reduces the volume of sales. Credit restrictions on a nationwide basis are inaugurated on the theory that they will ultimately reduce sales and the consumption of goods. ... It is, therefore, our considered opinion that the credit relations here imposed do have a direct connection and relationship to the protection of the public health, safety and welfare.”

Defendant argues that restrictions on liquor trade being in the interest of good government should not be relaxed or frittered away, and that plaintiff’s position calls for a strict construction of the statute to serve the private ends of the plaintiff rather than serve the purpose of the statute.

Defendant asserts, “Plaintiff has not by its amended complaint set forth any allegation which overcomes the basic obstacle that the statute does not permit such a guaranty under any circumstances irrespective of whether, at the time a purported guaranty is given by an individual to a distributor, open account credit to a retailer is or is not justified. . . . Certainly, the health, safety and welfare of the People of the State of Illinois are not protected and temperance in the consumption of alcoholic liquors is not fostered and promoted by the extension of merchandising credit to an unstable retailer where not warranted.”

Plaintiff argues, “The sale of a commodity on a thirty-day open account basis and a collateral agreement of guaranty by which both parties to the sales transaction benefit must be kept separate and apart. . . . Had the guaranty been limited to a thirty-day period, presumably no arguable violation of the Statute would be presented; but its continuing nature beyond the thirty-day period is not in violation of Section 122, because it is not an extension of credit or loan which are the only transactions prohibited. ... A continuing guaranty was employed merely as a matter of convenience to both parties. That continuing guaranty, however, was in substance and effect equivalent to a series of individual guaranties coextensive with each extension of credit to which it applied.”

Neither plaintiff nor defendant has cited any authority which we consider to be determinative of the issue here. Although the guaranty shows that it was intended to effect the extension of credit to the lounge, it was neither a loan of money nor an extension of credit. It was a contract by which the defendant obligated himself for the performance of an obligation by a third person (the lounge) in the event that the third person failed to perform, and it was not a primary obligation (20 ILP, Guaranty, § 2). Its continuing nature in no way impinged upon, circumvented or extended the 30-day credit period permitted by the statute. It is our opinion that it does not violate the statute when used to collect an account upon which credit was extended to a retail licensee in accordance with the provisions of section 122. If, on a trial, the evidence shows that the guaranty was used to circumvent the statute, the provisions of section 122 are sufficient to bar plaintiff’s alleged right of action.

The use of the corporate form by a retailer is not prohibited by the Liquor Control Act. If the corporate form is used as a shell to avoid the responsibilities of the Act, we believe the legislature can easily stop the practice. If guaranties of payment of distributor-retailer accounts were intended to be prohibited by section 122 as a credit restriction, we believe the legislature would have so stated, irrespective of the period of credit time restriction.

For the reasons given, the order striking the amended complaint and dismissing the action with prejudice is reversed, and the cause is remanded for further proceedings consistent with the views herein.

Reversed and remanded with directions.

BURMAN, P. J. and ADESKO, J., concur.