author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Osco Drug, Inc., Defendant-Appellee.
    (No. 72-293;
    Third District
    July 3, 1973.
    Herman Haase, Assistant State’s Attorney, of Joliet, for the People.

      Galowich, Galowich and McSteen, of Joliet, (Theodore A. Groenke, of counsel,) for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

On Nov. 18, 1971, a valid prescription for Butisol Sodium was presented to the prescription counter of the defendant’s drug store in Joliet, Illinois. In the absence of the manager of the store Robert Curl, a registered pharmacist; Corliss Stoxen, an apprentice pharmacist registered in South Dakota and also in Indiana but not then registered in Illinois because he had been recently transferred from Indiana, sold the solution to an investigator for $1.95. Rather than proceed under the Pharmacy Practice Act (Ill. Rev. Stat. 1971, ch. 91, sec. 55), which then provided that any person violating the provisions of the Act could be fined not to exceed $200, the State’s Attorney of Will County in April of 1972 secured a two-count indictment charging the defendant Oseo Drug, Inc., in Count I with maintaining a store used for dispensing controlled substances in violation of section 406(a)(5) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56½, sec. 1406(a)(5)) (then a fine of not more than $10,000, now a Class A misdemeanor for the first offense), and in Count II with unlawful delivery of a controlled substance in violation of section 401(d) of the Controlled Substances Act (then a fine of not more than $15,000, now a Class 3 felony with same fine penalty). Motions to dismiss the indictment were heard and the trial judge entered an order dismissing the indictment. The People have appealed from that order.

The basic point is that Oseo is a “practitioner” under the Controlled Substances Act. The definition of “practitioner” in section 1102 (hh) of the Act includes “® 8 8 pharmacy or other person licensed, registered or otherwise lawfully permitted by the United States or this State to 8 8 8 dispense 8 8 8.” A “Person” is defined in section 1102(dd) to include a corporation. Oseo was and is a licensed, lawful “practitioner” under the Act. Such a practitioner may have its agents act lawfully in its behalf in fulfilling its responsibilities as a practitioner. Section 1302(c) provides:

“The following persons need not register and may lawfully possess 8 8 8:
(1) an agent or employee of any registered 8 8 8 dispenser
8 8 8 if he is acting in the usual course of his employer’s lawful business or employment; 8 8 8.”

It would follow that Oseo was lawfully authorized to dispense the drug in question pursuant to a written prescription.

Section 1312 of the Act regulates the “Dispensing of Controlled Substances”; it shows that other than in regard to the dispensing of Schedule V drugs (sec. 1212) or the dispensing of Schedule III (sec. 1208) and IV (sec. 1210) drugs pursuant to an oral prescription, it is not necessary that a registered individual “personally” dispense the drugs described in Schedules III through V as long as proper procedures are followed in performing the required acts on behalf of a lawfully registered practitioner. The drug here in question is allegedly a Schedule III controlled substance. In section 1312 the legislation makes a specific distinction between Schedule III, IV and V drugs dispensed pursuant to a written prescription as opposed to oral prescription. It provides in sub-paragraph (b) that “a pharmacist, in good faith, may dispense Schedule III, IV or V drugs upon a lawful oral prescription; as opposed to providing in sub-paragraph (a) that a practitioner, in good faith, may dispense * * * Schedule III, IV or V controlled substances * * * upon a written prescription. “Section 1312 then has a whole distinct subparagraph (c) dealing with the dispensing of Schedule V drugs including the requirement that Schedule V drugs may be dispensed “only personally by a pharmacist * * *”. “Only personally” states the legislative intent to have a registered pharmacist individually dispense such drugs. Similarly the provision dealing with a “pharmacist” dispensing Schedule III, IV, or V drugs on oral prescription, states the legislative intent to have a pharmacist perform the dispensing there in question.

On the other hand, there are no such requirements found in the legislative scheme for dispensing of Schedule III and IV drugs pursuant to a written prescription. The only requirement is that a “practitioner” dispense such drugs and defendant Oseo was, in fact, a practitioner within the meaning of the Act and dispensed through its employee in a lawful manner the alleged Schedule III controlled substance pursuant to a lawful prescription.

The essence of the state legislative scheme is made even more clearly visible when compared with similar federal legislation regulating drug abuse which specifically requires the registration of pharmacies, but not of pharmacists employed in such pharmacies. (21 U.S.C. § 823(f).) The House report describing the legislation explains:

“Pharmacies, as distinguished from pharmacists, when engaged in commercial activities will be registered under subsection (f), if they are authorized to dispense under the law of the state in which they regularly conduct business. The Committee inserted this language to make clear that only pharmacies and not pharmacists employed by them will be required to register. * * House Committee on Interstate and Foreign Commerce Report; House Report No. 91-1444, 1970 U.S.C. Cong. and Adm. News, pp. 4566, 4608.

The People’s sole contention is that “the legislature must have intended that when prescriptions for controlled substances were filled, they would be filled in accordance with the Pharmacy Practice Act. (Ill. Rev. Stat. 1971, ch. 91, sec. 55.6 — 15).

The Pharmacy Practice Act has its own penalty provisions and is a regulatory scheme providing for regulation by an administrative agency of the practice of pharmacy in the State of Illinois. Obviously, regulatory prescriptions of that Act are not automatically incorporated into another separate criminal statute. Thus, the indictment herein must stand or fall by the provisions of the Controlled Substances Act and the unauthorized conduct must be conduct unauthorized by that Act and. not the Pharmacy Practice Act. Where two statutes are distinct in purpose, employ different remedies, and provide different penalties for offenses committed, they should not be so construed in pari materia as to employ the remedies of one for the prosecution of another. 50 Am.Jur. Statutes, sec. 420.

It is our opinion that the trial court had ample reason to dismiss the indictment for the reasons discussed above. Therefore, this court has no need to deal with the many other defective aspects urged by defendant.

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

Affirmed.

ALLOY, P. J., and SCOTT, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People ex rel. Guy Robert Woods, Appellant, v. Elza Brantley, Warden, Illinois State Penitentiary, Appellee.
    (No. 72-236;
    Fifth District
    July 2, 1973.
    Kelly D. Long, State’s Attorney, of Hillsboro, for appellant.
    Robert E. Farrell, District Defender, of Defender Project, of Mt. Vernon, for appellee.
   PER CURIAM.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Jack Landis, Jr., Petitioner-Appellant.
    (No. 73-130;
    Fifth District
    July 2, 1973.
    Robert E. Farrell, Deputy Defender, of Defender Project, of Mt. Vernon, for appellant.
    Herbert J. Lantz, Jr., States Attorney, of Chester, for the People.
   PER CURIAM.


author: Mr. JUSTICE GEORGE J. MORAN Mr. JUSTICE JONES

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kenneth Fields, Defendant-Appellant.
    (No. 70-140;
    Fifth District
    July 5, 1973.

      JONES, J., dissenting.
    Matthew J. Moran, Deputy Director, of Defender Project, of Chicago, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendant appeals from his conviction for the crime of armed robbery (Ill. Rev. Stat., ch. 38, par. 18 — 2). His defense was almost totally based on alibi. Prior to trial, in answer to a motion by the State for a list of alibi witnesses and pursuant to section 114 — 14 of the Illinois Criminal Code (Ill. Rev. Stat., ch. 38, Par. 114 — 14), defendant filed a list of alibi witnesses naming five persons. After the State had rested its cáse, defendant’s attorney made a motion to produce the statements which the State had taken from these witnesses.

After the State had rested its case, the following occurred:

“Defense Counsel: Motion to produce, I would say I supplied the Court with what I thought was the authority,- People versus Crawford and the Supreme Court case, People versus Sumner, and these cases show I am entitled to these statements.

The Court: I am not sure either one of those cases has gone that far. Do you have anything else you want to put in the record, Mr. Rice?

Mr. Rice: Yes, Your Honor. We were supplied with the list of alibi witnesses pursuant to our demands upon the defendant to do this, and upon receiving the names of alibi witnesses, we did take routine statements from three of these witnesses, and oral statement from one of them. I submit to the Court these four statements hopelessly do conflict with one another and they are all Missouri people. Upon the reasons we have already given for the Court’s denial of this defense motion to produce these, it is the position of the State if we were to have to reveal what their own witnesses have previously stated we would be in the position that the defense could then call only those witnesses that they could hope to reconcile the statements they have given with whatever evidence may already be before the Court. We feel all impeachment possibilities by the State would be nullified completely. They are all four in hopeless conflict with one another on the facts in this case.

The Court: The Crawford case may indicate that the law may someday be that far that you will have to do that. I don’t know that it says that at this point. It is very broad. I understand this case is on appeal to the Supreme Court of Illinois now. And I don’t think the Sumner case, which is a Supreme Court case, went that far. None of these decisions touch directly on this question of alibi witnesses which might be handled quite differently. There will be reason for handling it quite differently than the other statements talked about in the Crawford case. For that reason, I don’t believe the law at this time requires the State to produce these alibi witness statements, and I am going to deny the defense motion.

Defense Attorney: I have an evidence deposition I would like to read in this case of Mary Dudley. She is a crippled lady. She is unable to come to court and her testimony is important to the defense, in that she remembers seeing the defendant at or near the time of the alleged armed robbery in East St. Louis, in St. Louis, Missouri. For these reasons I would like to read the evidence deposition to the jury.

Mr. Rice: Your Honor, we would object on the basis there is no authority, plus if there were, if the Civil Rules of Procedure were applicable, I don’t believe this is the fashion for the evidence deposition to come before the court.

The Court: Request to read the evidence deposition is denied because I know of no authority for this to be done. Request denied.”

During the closing argument the state’s attorney stated:

“You have Mrs. Brinkley testifying. They are in here trying to pull back December 30 and give him an alibi and put him somewhere at 2:30, because they know the armed robbery occurred at 2:30 on the East side. Mrs. Brinkley tells you he frequently took his wife to work. This is denied by the defendant himself. Mrs. Brinkley (we assume this was a mistake, meaning Mrs. Fields) said in her own handwriting, ‘He said when he left the house he was going to see Ronald Prince, who lives on Cottage.’ But the defendant can’t have you think he left the house to see Ronald Prince, because he said he was going to see Lee Blevins.”

He further argues with regard to the alibi witnesses:

“They didn’t do a very good job. They did not conspire maybe on this stand here today, and there is a reason for that, and that is because our investigator got to these people and got a written statement from them, and with that in our file there is not too far that these people can go.”

Defense counsel’s objection to the latter statement was overruled.

The first question presented is whether the trial court erred when it denied a defense motion to require the State to produce copies of statements of defense alibi witnesses obtained by the state.

We believe that Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), requires that copies of these statements be given to the defendant. For failure to meet the demands of Williams, we must reverse this conviction.

In Williams, Florida’s notice-of-alibi rule was held constitutional against attacks based on the Fifth Amendment’s prohibition of self-incrimination only because of statutory provisions for liberal and reciprocal discovery and disclosure against the state. The opinions in Williams manifest that requiring a defendant to name his witnesses is a drastic, fundamental concession on his part, and can only be valid if liberal discovery is reciprocal. Justice White, for the majority, stated at 399 U.S. 81:

“We need not linger over the suggestion that the discovery permitted the State against petitioner in this case deprived him of ‘due process’ or a ‘fair trial.’ Florida law provides for liberal discovery by the defendant against the State, and the notice-of-alibi rule is itself carefully hedged with reciprocal duties requiring state disclosure to the defendant.”

Mr. Justice Black wrote his “emphatic disagreement and dissent” (399 U.S. at 116) believing that:

“This decision, in my view, is a radical and dangerous departure from the historical and constitutionally guaranteed right of a defendant in a criminal case to remain completely silent, requiring the State to prove its case without any assistance of any kind from the defendant himself.” (399 U.S. at 108)

The majority. opinion by Mr. Justice White, however, felt that these considerations were counterbalanced by reciprocal discovery against the State.

* * Florida law provides for liberal discovery by the defendant against the state, and the notice-of-alibi rule is itself carefully hedged with reciprocal duties requiring state disclosure to the defendant.” (399 U.S. at 81)

The reason for this was stated by Mr. Justice White:

“* “ * The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played.” (399 U.S. at 82)

In Footnote 11 at page 82, the court noted that other states had alibi-notice requirements, but reserved judgment on their validity, as “* * * that conclusion must await a specific context and an inquiry, for example, into whether the defendant enjoys reciprocal discovery against the State.”

Mr. Chief Justice Burger, concurring, stressed that the “enlarged and truly reciprocal pretrial disclosure of evidence and the move away from the ‘sporting contest’ idea of criminal justice” (399 U.S. at 106), would cause both prosecutors and defense attorneys to re-examine their cases in light of the prosecution’s investigation of prospective alibi witnesses. This re-evaluation would lead to disposition of cases without trial in appropriate cases. Such re-evaluation of the case is of course impossible where the prosecution refuses to turn over copies of the statements taken from the alibi witnesses, as the State refused to do in the case at bar. This violation of the demands of Williams requires reversal.

In People v. Tribbett, 90 Ill.App.2d 296, the court said at 302:-

“* 6 * However, if the prosecution’s case is strong because it is full of surprises, this is an advantage that is unjust, because it will not square with the adversary concept — of a contest between well prepared adversaries of equal strength. Surprise negates equality and without that rough equality, a criminal trial will not produce the desired result, which is, to put it succinctly, to discover so far as human agencies can, whether a defendant is guilty or not guilty.”

In the present case the defendant was compelled by statute to reveal the names of his alibi witnesses. This action by the defendant bared his defense to the State. The State investigated the witnesses and took statements from them. The witnesses could not remember all they had said, but the State concealed such information from the defendant. This is the type of “poker game” concealment forbidden by Williams. The State would not have had an opportunity to take these statements except for the defendant’s drastic and fundamental concession. In Williams the Supreme Court of the United States held that such a fundamental concession was only valid if liberal reciprocal discovery is available to the defendant. Surely that discovery extends at least to statements which are in the State’s possession only because of and as a direct result of the disclosure of the defendant. We cannot sanction the State’s attempt at gamesmanship. The mandate of Williams for liberal reciprocal discovery to the defendant is clear.

Any lawyer who has ever tried a case is reluctant to put a witness on the stand when he does not know the contents of a written statement of the witness in the possession of the opposition. It is vital for the defense to know whether or not the written statement given to the State is the same as the oral or written statement given to the defense attorney. If it is different, the defense attorney will want to ascertain which version is true. If he decides that the statement given to the State is false, he will want to inquire whether the statement was given under duress. He can only do this if he has access to the statement. On the other hand, he may ascertain that the alibi witness is not telling the truth and decide to recommend that his client permit him to negotiate a plea with the State. It may also appear that several alibi witnesses gave conflicting statements. In that event the defense attorney must have access to the statements in order to decide which of the conflicting statements is true in order for him to properly defend against the State’s accusations. In the event that the statements are not furnished, counsel may well decide not to use the alibi witness at all even though he believes his client to be innocent, for experience may have taught him that discrepancies between written statements and oral testimony even from truthful witnesses are commonplace.

People v. Crawford, 114 Ill.App.2d 230, 252 N.E.2d 483, dealt with the scope of discovery in criminal cases, and held, inter alia-, that the authority to order pretrial discovery against the prosecution was not limited to items of physical evidence or witness’ statements when further discovery was necessary to insure defendant a fair trial. Discussing the policy behind this, the majority opinion noted:

“Failure to grant discovery or severe limitations on pretrial discovery limiting the same to statements used for impeachment tend not to lend finality to the disposition of criminal case. It is clear now that the failure to make available to a defendant evidence which would be of a substantial benefit to him and which could materially affect the outcome of the case may result in the loss of a conviction.” (Emphasis added.) (114 Ill.App.2d at 236.)

Justice Smith dissented on the ground that only the Supreme Court had authority to promulgate discovery rules, but observed that:

“Under our system of jurisprudence, the obligation that the guilty as well as the innocent receive a fair trial is an essential part of the obligation of the State’s Attorney and his associated law enforcing agencies. I would therefore issue a caveat to State’s attorneys that the failure to disclose to a defendant information which would substantially affect the innocence or guilt of such defendant, retard or deprive him of a proper defense or perhaps even affect his punishment may under the authorities cited in the majority opinion result in punishment for contempt, the loss of a conviction, a retrial or a dismissal of the case.” (Emphasis added.) (114 Ill.App.2d at 239-240.)

The rationale that the State should disclose to defendant any information which would “substántially affect” or “be of substantial benefit to” development of a proper defense (or would “substantially affect” it), supports defendant’s contention in the instant case that the State should turn over copies of statements in its possession taken from defense alibi witnesses. Certainly they would benefit defendant in that the defense counsel could better prepare his defense. Without these statements, defense counsel does not know how credible his witnesses will appeal- to the jury. One of the dangers of an alibi defense is that if the alibi is not believed, many jurors might believe that defendant is guilty, even if nothing in the State’s evidence would lead them to that conclusion on the theory that a false alibi is indicative of guilt. Thus, information which would help defense counsel evaluate his witnesses’ credibility, such as the witnesses’ statements, would “be of substantial benefit to him” and should be given to him under the Crawford rationale.

“There have been developments on several fronts toward con-stitutionalization of the standards of broad discovery. In other areas of criminal procedure, the Constitution has been applied to control police investigative practices even when enforcement of the constitutional limits results in the suppression of reliable and probative prosecution evidence and thereby diminishes the fact-finding effectiveness of the criminal trial. This has properly been done in the pursuit of fundamental values that outweigh the importance of the conviction of any particular law violator. The Constitution has also been applied to protect the right of the defendant to an effective presentation of his defense at trial before a proper tribunal through the right to counsel, the right of confrontation, and the right to a jury trial. Equally appropriate for the imposition of constitutional standards is discovery as a procedure for assisting a defendant in the ascertainment of the fact necessary to establish his defense, complete or partial. Several constitutional provisions are well adapted to this purpose. It is constitutionally as important that a defendant be informed of the evidence as it is that he be informed of his rights.” Criminal Discovery, 50 N.C.L. Rev. 450 (1972).

The Sixth Amendment to the United States Constitution provides:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the States and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

In Chambers v. Mississippi, 35 L.Ed.2d 297, the Court said:

“The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusation. Tire rights to confront and cross-examine witnesses and to call witnesses in one’s own behalf have long been recognized as essential to due process.” 35 L.Ed.2d at 308.

The constitution has always been applied to protect the right of the defendant to effectively defend himself at trial, including the right to effective assistance of counsel and the right to call witnesses in his behalf.

“The right to counsel is empty without the means of obtaining information about the strength or weakness of the prosecution’s case on the basis of which to advise and defend the client or of obtaining evidence to use to establish the client’s innocence, to mitigate his culpability, or to minimize his punishment.” Criminal Discovery, 50 N.C.L. Rev. 463 (1972).

In the present case defendant’s right to effectively defend himself has been severely hampered because of the tactics of the State in depriving him of a proper defense.

We thus hold that where the defendant has furnished a list of alleged alibi witnesses to the state, the state must upon proper request furnish defense counsel with any statements subsequently taken from such witnesses.

Did the state’s attorney’s statement during closing argument that the alibi witnesses did not do a good job, “and that is because our investigator got to these people and got’ a written statement from them, and with that in our file there is not too far these people can go,” constitute reversible error?

Although many cases deal with the various aspects of the question of the propriety of a prosecutor’s comments during closing argument relating to the failure of the defendant to call alibi witnesses to support his alibi, and many cases likewise deal with the issue of the propriety of a prosecutor’s comments on matters not received into evidence or suppressed evidence, our research reveals only two important Illinois cases analyzing a prosecutor’s comments concerning prior statements of witnesses which had not been received into evidence. These cases are People v. Beard, 67 Ill.App.2d 83, 214 N.E.2d 577, and People v. Lowe, 84 Ill.App.2d 435, 228 N.E.2d 563.

The general rule is that the state’s attorney may not comment on matters not sustained by the evidence or insinuate that matters not received into evidence are favorable to the state’s side of the case. See e.g., 23A C.J.S. 149 “Criminal Law”, par. 1093; People v. Dukes, 12 Ill.2d 334, 146 N.E.2d 14, 67 A.L.R.2d 724; People v. Beier, 29 Ill.2d 511, 194 N.E.2d 280. The reasons for this are expressed in a widely quoted passage from Scripps v. Reilly, 38 Mich. 10 (quoted in many Illinois cases, including Beard and Lowe), as follows:

“Everything having a tendency to prejudice or influence a jury in their deliberations which is not lawfully admissible in evidence on the trial of the cause should be, so far as possible, kept from coming to their knowledge during the trial. An impression once made upon the mind of a juror, no matter how, will have more or less influence upon him when he retires to deliberate upon the verdict to be given, and no matter how honest or conscientious he may be or how carefully he may have been instructed by the court not to permit such incompetent matter to influence him or to have any bearing in the case, it will be difficult, if not .impossible, for him to separate the competent from the incompetent, or to show to. what extent his impressions of convictions may be attributed to that which properly should not have been permitted to come to his knowledge.”

Within the context, the question is whether the behavior of the state’s attorney in the instant case in referring to the “written statement(s) * * * in our file” keep the witnesses from “go(ing)” “too far” amounted to insinuating to the jury that material not in evidence supported the state’s case.

In Beard a murder conviction was reversed and remanded for error in a ruling of the trial court that defense requests, for prior statements of prosecution witnesses, be made in the presence of the jury. At three points in the trial, the defense, out of the presence of the jury, requested the state to deliver any prior statements of state’s witnesses, and each time the court told the defense that such a request had to be made in the presence of the jury and overruled defense objections to such procedure. Then, on each occasion, the court instigated the request by asking in the presence of the jury if the defendant wanted the statement. The defendant each time answered that he did want the statements and in each case moved for a mistrial, which motions were each time denied. Then the state’s attorney, in the presence of the jury, offered to stipulate to the statements and again the court overruled defense objections and motions for mistrial. In final argument, the state’s attorney discussed the testimony of witnesses and said, “Did she tell any different story than she ever told? Actually, it is the very statement she made to the police and I gave it to him (defense counsel).” (67 Ill.App.2d at 90.)

Defense counsel objected and moved for a mistrial. The objection was overruled and the motion for mistrial denied. The state’s" attorney then continued: “And I gave it to him. Did he show you jurors any contradictory statements that she previously gave to the police? No, he didn’t.” (67 Ill.App.2d at 90.)

The court in Beard found this to be error. Since defense need not use the impeaching statement, it is improper for such a procedure in tire presence of the jury to be used, as: “It would seem.that the defense attorney is put in the position of having to use the statement or appear to be hiding something from the jury.” (67 Ill.App.2d at 90.) After discussing cases dealing with an attorney arguing, stating, or implying the truth of statements not introduced into evidence, and reciting the quote from Scripps, the court concluded that this procedure was error and reversed.

The rationale of Beard is applicable to the instant case. Here the state, after successfully denying the defense access to the statements of certain defense witnesses, told the jury that the defense witnesses did not do a good job because the state had their written statements (copies of which were denied to the defense) and “with that in our file there is not too far these people can go.” In addition to insinuating that the witnesses might be wanting to lie, this comment insinuated that the statements, which the state would not let the defense see, contained evidence favorable to the state. Under Beard, this is error.

In People v. Lowe, 84 Ill.App.2d 435, it was held that prejudicial error was committed when, instead of acting in the absence of the jury, the prosecutor stated in the presence of the jury that he was turning over certain exhibits to defendant’s counsel for identification after requesting the court reporter, in the presence of the jury, to mark for identification such exhibits, one of which was purported to be testimony of complaining witness before the grand jury and the other to be a police report of the complaining witness. No objection was made. Subsequently, during closing argument the assistant state’s attorney made the following statement:

“On top of that she has always told a consistent story. She told police officer Ali, she told the Grand Jury the entire story and you saw that we turned over any history that exists of what she told at those moments to the defense and you have not yet one iota of serious impeachment out of those statements.” (84 Ill.App.2d at 437.)

Again, the defense counsel did not object. (However, the reviewing court found that the error deprived the defendant of an impartial trial, and reversed despite failure of counsel.to object at trial.)

The court discussed Beard and the Scripps quotation, and applied the rule in Beard with the following comment:

“In the Beard case, bringing the matter before the jury was held to be reversible error. In the case at bar the ■ error is compounded by the state’s attorney’s closing argument concerning these documents. Certainly it would be rather farfetched to say that when these documents improperly are given (in the presence of the jury) to the defendant to permit him to impeach the State’s witnesses, the State can argue — if the documents are not impeaching — that they should be considered by the jury as corroborating the testimony of the witnesses.” (84 Ill.App.2d at 440.)

The Lowe rationale also supports the contention that in the instant cáse the state’s attorney’s closing argument was error. It seems equally “far-fetched” in the instant case for the state’s attorney to say that when the state has denied the defense access to witnesses’ statements that the state can then imply that they support the theory of the state. In Lowe this was considered sufficiently prejudicial to require reversal even in the absence of objection. Here, of course, the comments were objected to, and it was error for the trial court to overrule the objections.

Did the trial court err in denying admission into evidence of an evidence deposition taken from an invalid out-of-state key witness?

At the trial, defense counsel’s request to read into evidence the evidence deposition of a cripple out-of-state witness whose “testimony is important to the defense, in that she remembers seeing the defendant at or near the time of the alleged armed robbery in East St. Louis, in St. Louis, Missouri.” The trial judge denied the request. At no time did the state or the court question the unavailability of the witness.

The deposition in question was an “evidence” deposition rather than a “discovery” deposition. In civil cases, Supreme Court Rule 212(b) allows the use of evidence (but not discovery) depositions for any purpose if the court finds that the deponent is unavailable because of age, sickness, infirmity, or imprisonment. On the facts given, that appears to have been the situation in the instant case. Rule 212, however, does not control in a criminal case.

Subsequently the Illinois Supreme Court promulgated Rule 414, which incorporates the rules for taking civil depositions into the criminal cases. Rule 414 was not effective until October 1, 1971, and thus not applicable to the instant trial.

In view of the foregoing, we do not believe it necessary to consider this alleged error at this time since the trial court will be governed by Supreme Court Rule 414 if this question comes up again at defendant’s new trial.

For the foregoing reasons this case is reversed and remanded to the Circuit Court of St. Clair County for a new trial.

Reversed and remanded.

CREBS, J., concurs.

Mr. JUSTICE JONES

dissenting:

In their opinion the majority reason that the State would not have had an opportunity to take statements from the alibi witnesses except for the defendant’s drastic and fundamental “concession.” They say, and it is true enough, that in Williams the Supreme Court of the United States held that such a fundamental “concession” was only valid if liberal reciprocal discovery is available to the defendant. The syllogism closes with, “Surely that discovery extends at least to statements which are in the State’s possession only because of and as a direct result of the disclosure of the defendant e ° * (and) the mandate of Williams for liberal reciprocal discovery is clear.” It is with this conclusion that I am in disagreement and therefore respectfully dissent.

I believe the majority opinion represents a misapplication and misinterpretation of Williams v. Florida, that it is contrary to a statutory directive of the Illinois legislature and constitutes an unwarranted assumption of rule making power by an appellate court.

The trial in this case was concluded on May 20, 1970. The opinion in the Williams case was filed over one month later on June 22- 1970. But notwithstanding the hiatus in time the majority expressly based their reversal upon the Williams case without even discussing its retroactive application. Yet, a few paragraphs later in their opinion they decline to apply a companion discovery rule permitting the taking and use of evidence depositions because of its non-retroactive application. Clearly the discovery process involved here is a procedural matter and retroactive, application seems totally unwarranted especially when it is considered that .such sacrosanct criminal procedure rulings as those involved in Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684; Escobedo v. Illinois, 378 U.S. 478, 12 L.Ed.2d 977, 84 S.Ct. 1758; Griffin v. California, 380 U.S. 609, 14 L.Ed.2d 106, 85 S.Ct. 1229, and Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 were held to have prospective application only. (See People v. Williams, 44 Ill.2d 334, 255 N.E.2d 385.) The State was taken to task for its failure to adhere to non-existent rules. But, in fact, the State, in declining to furnish copies of statements taken from defendant’s alibi witnesses, and the trial court in sustaining the position, were following the law applicable at the time of trial, viz., statements of-witnesses (other than the defendant himself) were not discoverable at the pretrial stage, but where the relevance and competence of a statement or report was established, the trial judge should order the document delivered directly to the accused for his inspection and use for impeachment purposes. People v. Cagle, 41 Ill.2d 528, 244 N.E.2d 200; People v. Neiman, 30 Ill.2d 393, 197 N.E.2d 8; People v. Wolff, 19 Ill.2d 318, 167 N.E.2d 197.

. The question of retroactive application aside, I believe the majority to have misinterpreted the holding in Williams v. Florida. It is not authority for, and does not require, the result reached by the majority. The opinion pointedly omits to mention the fact that in the Williams case the State had taken a statement from defendant’s alibi witness and used it at the trial for impeachment purposes. The facts present in Williams and the case under consideration are in many respects similar, particularly in that in both cases defendant was required by statute to furnish the State the names of his alibi witnesses, and the State proceeded to take statements or depositions from such witnesses and later used them at the trial. In neither case was pretrial discovery of the statements granted to the defendant, In Williams the alibi witness was impeached upon cross-examination by use of the statement and in this case defendant (so it is argued) was prevented from calling one alibi witness because of the existence of the undisclosed statement which rendered defendant uncertain as to the reliability of his witness.

The court in Williams stated that they need not linger over the sug-gestión that the discovery (of the names of alibi witnesses) permitted the State against petitioner deprived him of “due process” or a “fair trial.” The reason was that the Florida statute provided for liberal disT. covery by the defendant against the State and the notice-of-alibi is hedged with reciprocal duties requiring State disclosure to the defendant. The reciprocal duty imposed upon the State by the statute was that in exchange for defendant’s alibi witnesses the State was required to furnish defendant the names of witnesses it would use in presenting rebuttal evidence to defendant’s alibi. Thus, in Williams the existence of statements taken from defendant’s alibi witnesses was in noway involved in the court’s concern for reciprocity. In fact, majority approval of the use of undisclosed statements is indicated by the presence in the opinion of the following language:

“« « * armed with Mrs. Scotty’s (the alibi witness) name and address and the knowledge that she was to be petitioner’s alibi witness, the State was able to take her deposition in advance of trial and to find rebuttal testimony.”

Later the Williams majority stated:

“Nor would there be self-incrimination problems if, during that continuance, the State was permitted to do precisely what it did here prior to trial: take the deposition of the witness and find rebuttal evidence.”

It is thus seen that the Williams case, stated by the majority to compel the result they reach, in fact sanctions that which the majority says it condemns. This conclusion is buttressed by the significant fact that in the Federal court system there is no pretrial discovery of statements of either government or defense witnesses. Not only do the Federal Rules of Criminal Procedure not provide for such pretrial discovery of witness statements, they expressly exclude them. (Federal Rules of Criminal Procedure, 18 U.S.C.A., Rule 16(b).)

Impliedly conceding that the Williams case does not “require” the conclusion they reach, the majority seek justification and support by adverting to other authorities. If the Williams case is the imperative claimed (which it is not) then one must concede that they were correct in extending and enlarging the criminal discovery rules adopted by our supreme court. But if the majority opinion is to be based on extra-Williams authority then clearly it is without authority or precedent and contrary to a governing statute. In 1964 the Illinois legislature provided in Ill. Rev. Stat., ch. 38, sec. 114 — 13 that: “Discovery procedures in criminal cases shall be in accordance with Supreme Court rules.” The majority opinion is in direct conflict with that statute.

The majority rely upon the “rationale” of the case of People v. Crawford and certain provisions of the U.S. Constitution as justification for their result. But these are not such authorities.

The Fourth District Appellate Court in deciding People v. Crawford expressly state that they were without authority to adopt rules of discovery, a statement apparently overlooked by the majority here. The Fourth District found an inherent power in the trial court to adopt criminal discovery rules when the State possesses information that would substantially affect or be of substantial benefit to a proper defense by a defendant.

The Illinois Supreme Court granted the State leave to appeal in Crawford and appointed the “Supreme Court Committee on Discovery in Criminal Cases” to draft criminal discovery rules. The result was Supreme Court Rules 411 through 415, providing for discovery in criminal cases. Subsequent to the adoption of the rules the Crawford case was remanded without opinion to the circuit court with directions to proceed in accordance with the rules. The directive to the trial court to proceed with discovery in accordance with the rules was a clear limitation upon the “inherent power” of the trial court to develop discovery rules. The objections to such “inherent power” present in the Crawford case are equally present here and equally applicable to an Appellate Court. If an appellate court may adopt rules for criminal discovery an orderly process would be totally lacking and result in a hodgepodge of case-developed rules in each of the five appellate districts. For instance, as it mow stands, ■ discovery in criminal cases in Illinois is governed by Supreme Court • Rules 411 through 415 and the majority opinion in this case. What" further nuances to the supreme court’s criminal discovery rules will be spawned by the action of the majority here?

In further justification of their position the majority cite the sixth amendment and the due process clause of the United States Constitution. Curiously they do not state that the result they reach is constitutionally required but seemingly insert those citations as though the only reason their criminal discovery rule was not included was an oversight by the founding fathers. Pretrial discovery in criminal cases never has been held to be constitutionally required. The majority incorporate a segment of an article appearing in 50 N.C.L. Rev. in which the author argues that several constitutional provisions are “well adapted” to the imposition of constitutional standards for criminal discovery, but despite the professorial argument the constitution has not been so invoked. That pretrial criminal discovery is not constitutionally required is also shown by the fact that the Federal Rules still specifically exclude it, as above stated.

Even following the promulgation of the American Bar Association Standards Relating to Discovery and Procedure Before Trial there remains a great disparity of opinion as to whether statements of witnesses of either the prosecution or defendant should be disclosed to the opposite party in pretrial discovery. (See the commentary which accompanies the A.B.A. Standards.) The American Bar Association Standards nowhere provide that a party to a criminal case should be entitled to pretrial discovery of statements of its own witnesses. To hold, as the majority does here, that a party is entitled to pretrial discovery of statements taken from his own witnesses is totally unprecedented and unwarranted.

The majority find certain comments by the prosecutor in his final argument to be improper. The defendant did not raise the question of the impropriety of final argument as one of his points on appeal.

I would affirm the verdict and judgment.


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    Malcolm B. Wallace, Plaintiff-Appellee, v. The Prudential Insurance Company of America, Defendant-Appellant.
    (No. 71-31;
    Fifth District
    July 10, 1973.

      David H. Bremer, of Roberts, Gundlach & Lee, of Belleville, for appellant.
    Leon G. Scroggins, of Kinder, Scroggins & Kinder, of Granite City, for appellee.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This was an action in contract brought by the plaintiff-appellee to recover life insurance benefits for the death of one of the plaintiff’s minor children under an alleged interim or temporary contract of life insurance and, additionally, to recover punitive damages for alleged vexatious refusal to pay, together with attorneys’ fees and interest. The jury returned a verdict in favor of the plaintiff for compensatory damages in the sum of $1000, for benefits under the alleged interim policy of family life insurance, and for punitive damages in the sum of $6000, for alleged vexatious refusal to pay pursuant to the terms of said policy. After entering judgment in the Circuit Court of Madison County on the jury’s verdict in favor of the plaintiff, the trial court entered a judgment order awarding the plaintiff $700 in attorneys’ fees pursuant to Ill. Rev. Stat., ch. 73, § 767, and interest at the rate of 5% on the $1000 interim family policy of life insurance from June 12, 1966, and the costs of suit, pursuant to Ill. Rev. Stat., ch. 74, § 2; defendant, The Prudential Insurance Company of America, has appealed.

On May 24, 1966 plaintiff-appellee, Malcolm B. Wallace, made an application to defendant-appellant, The Prudential Ins. Co. of America, for a family insurance policy. If issued, the policy would have provided life insurance in the amount of $1000 on the life of Malcolm F. Wallace, plaintiff's son. At the time plaintiff executed the application, he paid to Prudential’s writing agent, Edward Opich, the sum of $13.40, representing a sum equal to the first full monthly premium on the policy in question, conditioned upon issuance of a standard policy in accordance with the terms and provisions of the application and conditional receipt of the application. The application was received by the home office , of Prudential on May 31, 1966. After examining it, Prudential’s underwriters, on June 1, 1966, sent a request to the East St. Louis District Office for more information with respect to scar tissue disclosed on the application and also requested, as a routine matter, an inspection report. On June 8, 1966 the inspection report was received, disclosing information that plaintiff had suffered a gunshot wound in 1960 and also suggesting possible excessive use of alcohol. Because of this information, it was determined that a medical examination of the plaintiff would be required before a final decision to accept or reject the application was made. A request was sent to the East St. Louis District Office for arrangements to be made for the medical examination.

On June 12, 1966, Malcolm F. Wallace, the five year old son of the plaintiff, was killed in an automobile accident. Mr. Opich, pursuant to the June 8th instructions, called the plaintiff’s home on June 13, 1966 and was advised of a death in the family. Mr. Opich then called the funeral home and left a message that Mr. Wallace was to be examined on June 14, 1966. The Chicago home office of Prudential was notified of the child’s death. The medical examination was performed and the physician’s report was received at the home office on June 16, 1966. This report disclosed among other things that the plaintiff was a substantial user of alcohol. This medical history was considered by Prudential’s underwriters to be sufficiently serious to reject this application for the family policy on June 24, 1966. The plaintiff was informed of the underwriter’s decision and his premium, which had been collected on May 24, 1966, was tendered to him, along with an offer by Prudential that he make application for a different type of policy. Both were refused.

Plaintiff testified that Mr. Opich stated that, if the first months’ premium were paid at the time the application was taken on May 24, 1966, the policy would take effect immediately. He stated that Mr. Opich told him that Prudential might require a medical examination in conjunction with the application. Plaintiff stated that he recalled something about a conditional receipt, but he did not recall Mr. Opich giving him one. In his discovery deposition, plaintiff stated that he had looked and had not found a conditional receipt, but he was under the impression that he had received some type of receipt from Mr. Opich on May 24, 1966.

Mr. Opich testified that he advised Mr. Wallace that if the initial premium check were given at the time of the application there was the possibility that the insurance coverage would relate back to the date of the application, but also that there was the possibility of a medical examination and, if a medical examination were ordered, the insurance would become effective upon the date of the examination if the policy were ultimately issued. Mr. Opich stated that he did not tell Mr. Wallace that he was insured as of May 24, 1966. Mr. Opich also said that he told Mr. Wallace that the decision of whether or not a physical would be required would be determined by the Chicago home office. He stated that he definitely did give Mr. Wallace a conditional receipt upon receiving the first premium payment on May 24, 1966, and he further stated that he generally explained the conditions contained in the conditional receipt.

Mr. Falk, senior underwriting consultant with Prudential, testified that the death of Malcolm F. Wallace played no part in his judgment to reject this application, that the application was rejected for a variety of reasons, pursuant to guidelines established by Prudential as company policy. Since the application and medical exam revealed that plaintiff had drinking problems, the company’s guidelines respecting drinking as it may affect applicants’ insurability were applied and resulted in a classification that was beyond the maximum for this policy of family insurance. Therefore Mr. Wallace’s application was rejected.

The issues presented for review are:

—whether the trial court erred in denying defendant’s motion for a directed verdict at the close of plaintiff’s evidence, and at the close of all the evidence, and in submitting this case to the jury on the issues of compensatory and punitive damages;

—whether or not the trial court erred in denying the defendant’s motion to strike and dismiss plaintiffs prayer for punitive damages;

—whether the trial court ruled correctly on certain objections to evidence and offers of proof;

—whether the trial court erred in awarding attorney’s fees and interest after the jury returned its verdict.

Dealing initially with the sufficiency of the evidence, the plaintiff argues that, inasmuch as he paid the writing agent of Prudential, Mr. Opich, the sum of $13.41 on May 24, 1966, a sum equal to the first monthly premium payment, there arose an interim, or temporary contract of insurance as applied for in the application and in accordance with the terms of the conditional receipt, which contained the conditions under which interm coverage may arise. Plaintiff in his reply to the defendant’s affirmative defenses neither admitted nor denied receipt of the conditional receipt, and was unable to produce the original conditional receipt at the trial. He stated, however, that he may have received it, but that he was not certain of this fact. Mr. Opich testified unequivocally that he filled in the appropriate, information on the conditional receipt and gave it to Mr. Wallace on May 24, 1966. The defendant-appellant contends that there was no insurance in force on the date of the minor child’s death; for, under the terms of the application and the conditional receipt, tire effective date of the insurance, had the application been accepted, occurred after the date the plaintiffs child was killed. In addition, the insurance was conditioned upon the plaintiff being insurable in accordance with the provisions of the conditional receipt, and the plaintiff was medically disqualified for issuance of the policy in question.

The applicable Illinois law on this subject sustains the defendant-appellants’ allegations. An application for insurance is a mere offer; it creates no rights and imposes no duty upon the insurer. (Moore v. Insurance Co. of North America (1964), 49 Ill.App.2d 287, 200 N.E.2d 1.) Ordinarily, where the application provides that no liability shall attach until its approval by the home office or by a general agent of the company, there is no insurance pending such approval. (Palmer v. Bull Dog Auto Insurance Assoc. (1920), 294 Ill. 287, 128 N.E. 499.) E. T. O’Neill, Interim Coverage: Conditional Receipts, 1964 Univ. of Illinois Law Forum 571 at 574-575.

An application and receipt which clearly make coverage dependent upon either approval of the application or insurability under the company’s rules as of the time of payment of the initial premium wiH be upheld. Unless the condition precedent is fulfiHed, no interim coverage is in effect. (Scheinman v. Phoenix Mutual Life Insurance Co. (7th Cir. 1969), 490 F.2d 999; Gerrib v. Northwestern Mutual Life Insurance Co., 256 Ill.App. 506.) See also American National Bank and Trust Co. v. Certain Underwriters (7th Cir. 1971), 444 F.2d 640 at 643-44. Whffe there seems to be a question of fact whether or not the plaintiff-appeHee in the case at bar actuaUy received a conditional receipt, it is undisputed that he signed the application form itself wherein it states:

“The undersigned agree(s): * * * (3) that except as may be otherwise provided in the Conditional Receipt * * ®, no insurance shall take effect unless: (a) a policy is issued by the Company and delivered to and accepted by the proposed Insured during the lifetime of the proposed Insured and the other persons now proposed for coverage, * * ®.”

Therefore, even under the terms of the application itself, no contract of insurance was in effect at the time of the minor child’s death, because no policy had been issued by Prudential. And in signing the application form, plaintiff agreed to these terms.

Secondly, the plaintiff-appeHee testified that the defendant’s writing agent stated that if the first month’s premium were paid at the time the application was taken on May 24, 1966, the policy would take effect immediately. The plaintiff’s contention that a temporary contract of insurance was in effect, based upon statements allegedly made by Mr, Opich, is without support.

In Sommerio v. Prudential Insurance Co. of America (1937), 289 Ill.App. 520, 7 N.E.2d 631, cited by the defendant-appellant, the court held, at 528, that “in order to recover upon an application where it is claimed that the approval of the policy by the home office was waived by the writing agent, a clear showing should be made that the agent had authority to waive provisions of the'receipt, and, in the absence of such showing, oral conversations had contemporaneously with the signing of the application should not be given effect as against the express written provisions of the receipt stating otherwise.” And, at 524, the court in Sommerio stated that in order to show that a solicitor has broader powers, or the powers of a general agent, it is incumbent upon the party so contending to show, by competent evidence other than the testimony of the agent himself, the specific authority claimed. In the case at bar, the. plaintiff-appellee failed to show that Mr. Opich, the writing agent, had any authority to waive the provisions of the application or receipt. Plaintiff merely testified as to what Mr. Opich allegedly said at the signing of the application. Furthermore, both the application and the receipt expressly state that “no agent has the authority to waive the answer to any question in the application,- to modify the application, or to bind the Company by making any promises or representation or by giving or receiving any information”. Plaintiff signed the application wherein it states that the undersigned agrees to such conditions; therefore he is bound by those conditions.

The case cited by the plaintiff-appellee to support his contention that there was a waiver, Colontuono v. State Farm Insurance Co. (1972), 8 Ill.App.3d 84, 289 N.E.2d 235, can be distinguished upon its facts from the case at bar. In that case the writing agent, when asked if a physical was required, said no and told the applicant that the insurance would go into effect immediately, all contrary to the conditional binding receipt. On the question of whether or not the agent waived the company’s rights, the court said that was a question to be determined by the trier of fact, but it did so only because there was evidence that the company sales manager trained the writing agents and as part of that training the agents would accompany him on calls. His approach was to inform clients, when asked, that they would be covered immediately upon signing the application and making payment of the first premium. There was no evidence of such practice in the case at bar.

Under the facts of the case before us, the trial court should have allowed the defendant’s motion for a directed verdict at the close of the plaintiff’s case and at the close of all the evidence and the defendant’s post-trial motion for judgment notwithstanding the verdict, with reference to plaintiff’s alleged cause of action for a temporary contract of insurance, because, under the terms of the application and the conditional receipt, no contract was in effect on the date Malcolm F. Wallace died.

The second issue for consideration is whether or not the trial court erred in denying defendant’s motion to strike and dismiss plaintiff's prayer for punitive damages, and whether or not the trial court erred in giving its instructions on damages.

Plaintiff’s complaint involved an action in contract for alleged interim insurance coverage, with a prayer for both compensatory and punitive damages. The defendant alleges that the prayer for punitive damages has no basis in either Illinois statutory or common law. The law on this subject is quite clear — exemplary or punitive damages are not to be allowed in actions for breach of contract. (Wheeler v. Cannon (1899), 84 Ill.App. 591; Restatement of Contracts (1932), sec. 342; 25 C.J.S. Damages (1956), sec. 120.) In Miller v. Board of Education (1968), 98 Ill.App.2d 305, 240 N.E.2d 471, the court held that an elementary school teacher under contract who was wrongfully discharged was not entitled to an award for punitive damages.

This rule does not obtain, however, in those exceptional cases where the breach amounts to an independent, willful tort, in which event exemplary damages may be recovered under proper allegations of malice, wantonness, or oppression. (25 C. S. Damages (1956), sec. 120.) The case at bar is not an exception to the general rule. Other than making a prayer for punitive damages, plaintiff did not attempt to allege facts which would bring this claim for punitive damages under any recognized tort theory. And furthermore, it does not appear that the defendant was either malicious or oppressive by merely applying the rules' and standards of the company in rejecting the plaintiff’s applica-. tion.

Since recovery on the policy cannot be sustained, neither attorney fees nor interest can be sustained.

The judgment is accordingly reversed.

G. MORAN and JONES, JJ., concur.


author: Mr. JUSTICE CREBS

text:
    Russell C. Roberts, Plaintiff-Appellee, v. Ralph Buske, Defendant-Appellant.
    (No. 71-194;
    Fifth District
    July 10, 1973.

      Meyer and Meyer, of Belleville, (George R. Ripplinger, Jr., of counsel,) for appellant.
    H. B. Tunnell, of Litchfield, for appellee. •
   Mr. JUSTICE CREBS

delivered the opinion of the court:

The Circuit Court of Montgomery County sitting without a jury, rendered judgment for $358, plus costs, in favor of plaintiff and against defendant. The issue involved is whether a renewal of an automobile liability policy was accepted by defendant, thereby imposing liability upon him for the annual premium pro-rated up to the time the policy was returned and cancelled.

The facts are undisputed. In September, 1969, plaintiff, an insurance agent, sent defendant a policy which was a renewal of one defendant’s father had previously held. Defendant had not ordered or requested issuance of this policy, but he accepted it and paid the premium. In September, 1970, just prior to the expiration date of the policy, a second unsolicited renewal was sent to defendant and attached to it was a printed notice stating that if defendant did not wish to accept it he must return it or be liable for the premium. Defendant made no response either to this notice or to two subsequent bills mailed to him. Finally, in December, the agent telephoned defendant personally to inquire about the premium. Defendant informed him that he had purchased a policy from another company in August and that since he had not ordered the renewal he felt no obligation to pay for it. The policy was then returned to the company and cancelled, resulting in a loss to the agent for the pro-rated portion of the premium which he had advanced.

In his brief plaintiff appears to accept the fact that the basic requisites of a valid contract are equally applicable to an insurance contract, and that a bare offer imposes no liability upon the person to whom it is made until it is accepted. However he argues that because defendant had previously accepted a renewal policy and thereafter paid the premium his silence in replying to the second renewal constituted an implied acceptance thereof and obligated him to pay the premium.

There do not appear to be any Illinois cases directly in point on this issue. However, other jurisdictions have considered the question. In Preferred Risk Insurance Co. v. Central Surety & Insurance Corp. (D.C. Ark.), 191 Fed. Supp. 797, the facts were almost identical. After purchase of one policy the insured accepted a renewal and paid the premium. Prior to the expiration of the renewal period another renewal was sent to insured but she did not pay the premium, nor did she return the policy, or reply to two subsequently sent bills. She had purchased a different policy from a different company. During this time she had an accident. The second insurance company settled on its policy and then sued the first company to recover its pro-rata share of the loss on the theory that its policy was also effective. The court held that the unsolicited delivery of the renewal policy was a mere offer; that insured’s failure to return the policy or pay the premium did not create an implied acceptance; that her purchase of another policy from another company strongly indicated her rejection of the first company’s offer; and that, therefore, no valid contract of insurance existed with the first company.

In Phelan v. Everlith, 22 Conn. Sup. 377, 173 A.2d 601, a second renewal policy was sent to insured and ignored. The agent, as in the case before us, sought to recover that portion of the premium which he advanced to the insurance company. The court stated that a single transaction does not establish a course of conduct or course of dealing sufficient to constitute an implied acceptance based on silence, and that acceptance Cannot be presumed from a mere failure to decline a proposal.

We agree with these principles and believe them applicable to the facts now before us. Plaintiff had sent only one other renewal to defendant and that was for a policy previously held by defendant’s father. He stated that he also sent a copy of the policy to defendant’s mortgagee, but that adds little to his argument. Where property is mortgaged it- -is normal procedure to provide the mortgagee with a copy of the policy, attaching a mortgage clause so that the latter may be assured that his interests are protected. The same procedure would have been followed by any other insurance company and was not a singular service rendered by plaintiff. Plaintiff also argues that if defendant had had an accident he, undoubtedly, would have looked to plaintiff’s company for coverage. This is a pure assumption, and irrelevant, and there is authority to the contrary. (Standard Casualty Co. v. Boyd, 71 N.W.2d 450, 75 S.D. 617.) Defendant was covered by another policy issued by another company and he would have no reason to look to plaintiff’s company for coverage.

We recognize that the practice of sending renewals oftentimes serves the best interests of an insured; but, likewise, it serves the best business interests of the insurance agent. And it is the agent, as the ■offeror, who must assure himself that his offer has been accepted. Under ordinary circumstances silence cannot be relied upon to establish an acceptance of an offer to enter into a contract. (Corbin on Contracts, Vol. 1, sec. 72.) We do not preclude the possibility of an implied acceptance being established under certain circumstances. However, as held in the cases above cited, we cannot find that acceptance of a single previous renewal in itself is sufficient to constitute an implied acceptance of a second renewal based solely on the silence of the offeree. Not only is the mailing of a first renewal policy insufficient to show a previous course of dealing between the parties, the plaintiff presented no evidence regarding the customary trade practice, if any, in situations similar to that presented here. It is obvious that plaintiff feels abused in that defendant did not inform him that he had bought another policy, but a simple telephone call would have revealed this fact and there would have been no reason for plaintiff to have incurred the loss caused by his unwarranted assumption.

The judgment of the Circuit Court of Montgomery County is reversed.

Reversed.

EBERSPACHER, P. J., and JONES, J., concur.


author: Mr. JUSTICE CREBS Mr. JUSTICE GEORGE J. MORAN

text:
    Zamir Bavel et al., Plaintiffs-Appellees, v. L. C. Cavaness, Admr. of the Estate of Lillian D. Rausch, Defendant-Appellant.
    (No. 71-254;
    Fifth District
    July 10, 1973.

      G. MORAN, J., dissenting.
    Listeman, Bandy & Hamilton, of Belleville, (James J. Gomric, of counsel,) for appellant.

      J. C. Mitchell and W. A. Armstrong, both of Marion, for appellees.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Plaintiffs filed an action in the Circuit Court of Williamson County wherein they sought recovery for personal injuries and property damage incurred in an automobile collision. Defendant filed a motion to dismiss the complaint which motion was denied, whereupon defendant made application pursuant to Supreme Court Rule 308 for permission to appeal the interlocutory order denying his motion to dismiss. Defendant’s application was allowed and this appeal followed. It is defendant’s sole claim that the complaint here is barred by the Statute of Limitations.

The facts in the case are as follows: On July 14, 1967, plaintiffs were involved in an automobile accident wherein a car which was driven by one plaintiff and in which the other plaintiff was a passenger collided with an automobile driven by Lillian D. Rausch, a resident of the State of Indiana. Lillian Rausch died in the collision and her estate was opened in Indiana on July 19, 1967 and closed on April 3, 1968. On July 14, 1969, exactly two years after the accident, plaintiffs filed suit in the Circuit Court of St. Clair County naming as defendants the Estate of Lillian D. Rausch, its executors and heirs. By reason of diversity of citizenship the cause was transferred to Federal District Court where the individual who was served with the complaint filed a motion to dismiss" alleging that the Statute of Limitations had run and that the plaintiffs had failed to file a complaint against any proper party within the time allowed by said Statute. On January 18, 1971 the Federal District Court held that the suit was void ab initio by virtue of plaintiffs’ failure to name a proper party-defendant and the complaint was therefore dismissed. No further action was taken in the Federal court. However, on April 21, 1971 plaintiffs sought the appointment of defendant, the Public Administrator of Williamson County, and over his objection letters of administration were issued, whereupon suit was immediately filed. Defendant then filed a motion to dismiss the complaint on the grounds that it was barred by the Statute of Limitations which motion was denied and he now appeals.

The cause of action here involved accrued on July 14, 1967, the date of the accident, and the suit before us was filed approximately three years and ten months after that date. The Illinois Statute of Limitations provides that actions for an injury to the person shall be commenced within two years next after the cause of action accrued (Ill. Rev. Stat. 1967, ch. 83, sec. 15) and that actions for an injury done to property shall be commenced within five years next after the cause of action accrued (Ill. Rev. Stat. 1967, ch. 83, sec. 16). It is therefore obvious that Counts I and II of plaintiffs’ complaint, which relate to personal injuries, were barred by the Statute of Limitations unless one or more of the exceptions contained in that Act extended the time in which they were required to plead. It is also clear that Count III of the complaint, which deals with claimed property damage, is not barred, it having been filed within the time limited by law.

One of the exceptions to the general limitation period relied upon by plaintiffs is contained in section 20 of the Limitations Act wherein it is provided that “If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, and is not otherwise barred, an action may be commenced against his * * * administrators after the expiration of the time limited for the commencement of the action, and within nine (9) months after the issuing of letters * * * of administration.” (Ill. Rev. Stat. 1967, ch. 83, sec. 20.)- Plaintiffs claim that this exception prevails in the case now before us and that their personal injury action cannot be barred for their failure to initiate the suit before the general two-year period of limitation. It is their position that although they didn’t bring this suit until after the two-year statute expired, they did bring the action within nine (9) months after April 21, 1971, the date defendant was appointed as administrator, and that the suit was therefore not barred. This argument overlooks the fact that on July 19, 1967, approximately three (3) years and ten (10) months prior to. defendant’s appointment in Illinois, an administrator for the estate of the deceased defendant was appointed in Indiana, her place of residence and the situs of her estate. Section 20 makes no distinction as to where the letters shall be issued, referring simply to issuance of letters, and it is clear that the plaintiffs did not initiate their suit within nine months from the date the Indiana estate was opened.

It is not necessary for us to determine whether plaintiffs were required to file within nine months from the date the letters of administration were issued, which would have the effect of reducing the applicable two-year limitation period, for it is clear that plaintiffs failed to file either within nine months after the letters were issued or within two years after the cause of action accrued and that they are therefore barred regardless of which limitation period is applied.

Plaintiffs also claim that section 24(a) provides statutory relief from defendant’s assertion of the Statute of Limitations. That section provides «a # * or if the plaintiff is nonsuited, or the action is dismissed for want of prosecution then, whether or not the time limitation for bringing such action expires during the pendency of such suit, the plaintiff, his . heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, * * * after the plaintiff is nonsuited or the action is dismissed for want of prosecution.” Ill. Rev. Stat. 1967, ch. 83, sec. 24(a).

It is axiomatic that in order to have a civil suit in tort there must be a plaintiff and a defendant and it is likewise clear that the prime requisite as to parties, whether plaintiffs or defendants, is that they be either a natural or artificial person and that the capacity to be sued exists only in persons in being and not those who are dead or have not yet been bom. (29 I.L.P., Parties, sec. 21, p. 164.) In the instant case the suit was initiated against the “Estate of Lillian D. Rausch, its executors and heirs”. These named defendants are not “parties” within the above definition and therefore the suit under consideration was a complete nullity. (Compare Reed v. Long, 122 Ill.App.2d 295, 259 N.E.2d 411.) As a matter of law, therefore, there was no action upon which to base the one-year extension provided by section 24(a). A case which was legally never in existence cannot be dismissed or nonsuited for it was a nullity from its inception and incapable of legally being acted upon. We realize that the purpose of the statute extending time for bringing suit where action has been commenced and plaintiff has been nonsuited is to facilitate disposition of litigation upon merits and to avoid frustration upon grounds unrelated to the merits. (Roth v. Northern Assurance Co., 32 Ill.2d 40, 203 N.E.2d 415.) Here, however, where there was no defendant there was no action capable of being heard on the merits. Failure to name a defendant is not a mere technicality in procedure or form but constitutes rather a total absence of a cause of action. The statute in referring to a “new” action pre-supposes an old or prior action filed within the original limitation period and here, as a matter of law, there was no such prior action. It is therefore evidence that plaintiffs did not commence a “new” action when they filed the complaint now before us, but rather commenced the only action, which action was filed well beyond the limitation period allowed.

Under the views herein expressed, we find that the trial court erred in denying defendant’s motion to dismiss that portion of plaintiffs’ complaint that relates to their personal injury actions. Defendant’s motion did not, however, differentiate between the claims for personal injury and that for property damage and it is clear that a valid action for damage to property was commenced within the time limited for such actions. The judgment of the trial court denying defendant’s motion to dismiss is therefore affirmed as to Count III of plaintiffs’ complaint, being that portion of the complaint stating an action for property damage, and is reversed as to Counts I and II of said complaint which are purported personal injury actions that are barred by the Statute of Limitations and therefore properly dismissed.

Affirmed in part, reversed in part.

EBERSPACHER, J., concurs.

Mr. JUSTICE GEORGE J. MORAN

dissenting:

The majority holds that the plaintiffs cannot rely upon the exception to the general Limitations Act contained in section 20 (Ill. Rev. Stat. 1967, ch. 83, par. 20) because an administrator for the estate of the deceased was appointed in Indiana and plaintiffs did not initiate their suit within nine months from the date the Indiana estate was opened. In so doing the majority relies upon a theory not advanced by the appellant in the trial court or in this court.

If we decide this case on the plain language of section 20 as we should, we are bound by the interpretation given it by Roberts v. Tunnell, 165 Ill. 631, where the court said at 632-633:

“The note became due February 7, 1880, and but for the death of the maker the time limited for bringing an action would have expired February 7, 1890. George B. Allen died June 5, 1887,— before the expiration of that time. The cause of action on the note survived, and suit might be brought against his administrator whenever he should be appointed. None was appointed until August 23, 1894, and the bill was filed to foreclose the mortgage in less than one year from such appointment. These facts bring the note within the provision of section 19 of the act in regard to limitations, in force July 1, 1972, as follows: ‘If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his executors or administrators after the expiration of that time, and within one year after the issuing of letters testamentary or of administration.’ By this section, where a cause of action survives and is not barred at the death of the debtor, the creditor is allowed one year after letters of administration are issued in which to bring such action.”

Nor do I agree with the majority’s holding in regard to section 24A (Ill. Rev. Stat. 1967, ch. 83, par. 24A).

Section 24A applies in situations in which an action is brought within the proper period or initial period of time given by statute and the plaintiff is nonsuited for want of jurisdiction in the initial court. Roth v. Northern Assurance Co., Ltd. (1965), 32 Ill.2d 40, 203 N.E.2d 415.

The Supreme Court in holding that Section 24A applies to non-suiting for want of jurisdiction said in Roth at 42-43:

“We consider first the defendants’ contention that the statutory reference to a nonsuit’ does not include the dismissal of an action for want of jurisdiction. In 1942 this same contention was considered and rejected by the Circuit Court of Appeals for the seventh Circuit in Sachs v. Ohio National Life Insurance Co. (7th Cir.) 131 F.2d 134. After carefully reviewing the authorities, the court said, ‘The act is remedial, reflecting a legislative intent to protect the party who brings the action in good faith from complete loss of relief on the merits merely because of procedural defect. Such remedial statutes should be liberally construed, so as to prevent destruction of the purpose of the legislation. * * * In both common law nonsuit and dismissal for want of jurisdiction the order is due to some defect in the procedure or proof which prevents a trial on the merits. The obvious purpose of the statute was to give a plaintiff an opportunity to try the merits and it is illogical to assume that the legislature meant to prevent hardship in the case of a nonsuit, but not in that of dismissal for want of jurisdiction. The contrary is clearly intimated in the only pertinent decisions; and by them we are bound. It follows that, as plaintiffs had commenced their new action within a year after the first one had been dismissed for want of jurisdiction, they were not barred.’”

Other Illinois cases have supported the filing of new actions under Section 24A when the original suit has been dismissed for want of jurisdiction. In re Estate of Breault, 113 Ill.App.2d 356, 251 N.E.2d 910; Factor v. Carson, Pirie, Scott and Co., C. A. 1968, 393 F.2d 141.


author: Mr. JUSTICE JONES

text:
      In re Estate of Terrilyn Randell, a Minor.
    (No. 72-307;
    Fifth District
    July 10, 1973.

      Rehearing denied July 27, 1973.

    Meyer and Meyer, of Greenville, for appellant.
    Dick H. Mudge, Jr., of Edwardsville, for appellee.
   Mr. JUSTICE JONES

delivered the opinion of the court:

This is an appeal from an order of the trial court denying a petition for appointment of the mother of a minor child to be the guardian of the person of the child.

On April 9, 1969 the parents of the child were divorced by a decree rendered in the Circuit Court of Madison County, Illinois. By the terms of the divorce decree the father was granted custody of the minor child together with that of her three sisters and the mother was granted visitation privileges. After the divorce the mother remarried and became a resident of Indiana and the father remarried and became a resident of Missouri. In 1971 the mother filed a petition to modify the decree of divorce in which she sought custody of the children. After extensive hearings her petition was denied by order entered on February 17, 1972. The child in question is the. eldest of the four daughters and on May 25, 1972 she attained the age of 14 years. On June 7, 1972 a petition to appoint the mother guardian of the person of the child was filed by an unrelated friend of the mother who resided in Madison County, Illinois. Attached to the petition was the nomination of the minor, then over 14 years of age, of her mother as guardian of her person. After a hearing on the merits the trial court denied the petition.

On appeal the petitioner contends that upon reaching the age of 14 years the minor had a right to nominate the guardian of her person, subject to court approval, and that the trial court was in error in denying her petition. However, we do not reach that issue presented by the parties in their briefs. The petition for appointment of guardian states the address of the minor to be Florissant, Missouri. The testimony of the minor was' that she was living with her father at the same address as that stated in the petition. There was no other evidence regarding the place of residence of the minor and we must therefore assume the minor is a non-resident of Illinois. Furthermore, the petition affirmatively shows that the minor has no estate in Illinois. In view of these established facts the Circuit Court of Madison County was without jurisdiction to entertain the petition or to appoint a guardian for the minor child.

Section 133 of the Probate Act (Ill. Rev. Stat., ch. 3, sec. 133) provides:

“On the filing of a verified petition by a reputable citizen of this State or on its own motion the court may appoint a guardian for a minor wherever it appears necessary or convenient. If the minor is a resident of this State, the guardian of his estate and person shall be appointed by the court of the county in which he resides. If the minor is not a resident of this State, the Guardian of his estate shall be appointed by the court of the county in which he owns real estate or, if he owns no real estate in this State, by the court of the county in which he owns personal estate.”

Thus, in order to secure the appointment of a guardian for a minor in the State of Illinois that minor must either reside in or own property in Illinois. It was so held in People ex rel. Kaiser v. Medart, 166 Ill. 348, 46 N.E. 1095 and Barnsback v. Dewey, 13 IH.App.581, in which the courts were considering statutes whose provisions were essentially similar in their pertinent parts to section 133 of the Probate Act. Our case of In re Guardianship of Smythe, 65 Ill.App.2d 431, 213 N.E.2d 609, is not contra since there the minors owned property in the State of Illinois.

The evidence here shows the essentials necessary to invoke the jurisdiction of the court under this statute, either residence or property, are lacking. Where the trial court has no jurisdiction an appeal can confer no jurisdiction on the reviewing court. The objection to jurisdiction may be interposed at any time, even by the court of appeal on its own motion. Barger v. Slayden, 411 Ill. 237, 103 N.E.2d 645; People v. Indus trial Savings Bank, 275 Ill. 139, 113 N.E. 937; People v. LaPorte, 28 Ill.App.2d 139, 171 N.E.2d 95; In re Estate of Hirsh, 27 Ill.App.2d 228, 169 N.E.2d 591.

Judgment affirmed.

EBERSPACHER, P. J., and MORAN, J., concur.


author: Mr. JUSTICE GOLDBERG.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Paul Roberts, a/k/a Maurice Jones (Impleaded), Defendant-Appellant.
    (No. 55002;
    First District (1st Division)
    June 4, 1973.
    Gerald W. Getty, Public Defender, of Chicago, (Stanley Sacks and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and Albert Rosendahl, Assistant State’s Attorneys, of counsel,) for thé People.
   Opinion by

Mr. JUSTICE GOLDBERG.