author: EBERSPACHER, P. J.

text:
    Robert W. Tunnell, Plaintiff-Appellant, v. Edwardsville Intelligencer, Inc., a Corporation, Defendant-Appellee.
    Gen. No. 67-46.
    Fifth District.
    August 14, 1968.

      Dick H. Mudge, Jr., of Edwardsville, for appellant.
    Gordon Burroughs, Burroughs, Simpson and Burroughs, of Edwardsville, and Emerson Baetz, of Alton, for appellee.
   EBERSPACHER, P. J.

This is a defamation suit wherein the plaintiff, Robert W. Tunnell, a licensed attorney and city attorney of Edwardsville, Illinois, brought suit against the defendant, Edwardsville Intelligencer, Inc., a daily newspaper, for publishing and circulating an allegedly libelous article on February 23,1961.

The cause was tried before a jury and on May 11, 1966, the jury returned the following verdict: “We, the jury, find in favor of the plaintiff and against the defendant, and assess plaintiff’s compensatory damages in the sum of $none dollars, and the punitive damages in the sum of $35,000.00 dollars.”

The court failed to enter judgment on the verdict but thereafter on June 29, 1966, ruled on defendant’s motion for a directed verdict which had been made at the close of all the evidence and filed a written opinion which concluded with the following order:

“That the verdict of the jury is contrary to law, and that there is no basis for libel under the facts and the law.
“That the verdict of the jury is in favor of the defendant.
“Judgment is hereby entered in favor of the defendant and against the plaintiff . . . .”

Plaintiff filed his post-trial motion which was denied; and the plaintiff then appealed. After the plaintiff had filed his brief and the defendant its answer, a motion was filed in this Court suggesting the death of the plaintiff and moving to substitute Lena S. Tunnell, Executor of the Estate of Robert W. Tunnell, deceased, as the plaintiff. The plaintiff’s motion was accompanied with a further motion withdrawing the plaintiff’s portion of the appeal that sought a new trial. The defendant filed objection to the motion to substitute and a motion to dismiss alleging that the action had abated upon the death of the plaintiff. There has been no ruling upon the motions and by an order entered by this Court, the motions were taken with the case.

We decide the question of abatement first because if the action abates due to the death of the plaintiff, it would be needless to pass upon the merits of the case.

At common law, and now by statute, a suit in the nature of defamation abated upon the death of either the plaintiff or defendant and was subject to dismissal with prejudice upon such death without the possibility of revivor in the name of a personal representative. Chapter 3, § 339, Ill Rev Stats (1965); Chiagouris v. Jovan, 43 Ill App2d 220,193 NE2d 205 (1963).

However, a second question is presented when the cause is pending appeal for in that event, the cause of action has gone to judgment and a different situation exists. In such a case the cause of action ceases to exist, being merged in the judgment, and consequently so long as the judgment remains in force, the doctrine of abatement has no further application, unless the case is one in which the death wholly eliminates the matter in controversy. Wedig v. Kroger Grocery & Baiting Co., 278 Ill App 378.

In the present case the plaintiff obtained a verdict. However, judgment was never entered upon this verdict. We note that section 68(2) of the Civil Practice Act requires the Court to promptly enter judgment on the verdict upon its return by the jury. Chapter 110, § 68, III Rev Stats 1965. When viewed in this light, the effect of the court’s subsequent order was to set aside the judgment which should have been entered on the return of the jury’s verdict.

The purpose of this appeal is to substantiate by a reversal in this Court, the validity of the judgment, and thus obtain the benefit of the judgment which should have been rendered on the verdict. This, of course, will be the result if the appeal is successful. It is not as if a judgment had never been obtained, in which case, the cause of action would have abated. By the trial court’s action, and this appeal, the judgment is simply held in abeyance and may or may not become effective to the plaintiff, that issue depending entirely upon the determination of the other question in this Court as to whether the court erred in setting aside the judgment. It is our opinion that the effect of the appeal is to suspend the operation of the order setting aside the judgment and to keep a live the judgment until the appeal is determined. It is not a question of whether the cause of action survives, for the cause of action has merged in the judgment and the validity of the judgment is the question at issue.

The question appears to be one of first impression in the State of Illinois as neither of the parties, nor from our own research have we found any Illinois cases bearing directly upon this issue. However, our opinion is supported by opinions in other jurisdictions which have passed upon the issue. Crawford v. Chicago, Rock Island & Pac. Ry. Co., 171 Mo 68, 66 SW 350 (1902); Wright v. Northern Pac. Ry. Co., 45 Wash 432, 88 P 832 (1907).

Under the circumstances of this case it is our opinion that the cause of action had merged into the judgment, that the motion to substitute the plaintiff’s executor as the party plaintiff and the motion withdrawing the request for a new trial should be granted, and the defendant’s motion to dismiss denied.

The article complained of concluded with the following sentence, on which plaintiff based his complaint:

“Rumors on the main stem today had it that Atty. Tunnell was working to break the law, whether it was the city or state law was not explained.”

If the verdict returned by the jury, which made no award for compensatory damages, precludes recovery by the plaintiff, we need not determine whether a case of actionable libel was presented; as a result we consider first defendant’s second contention, i. e. that the verdict finding no actual damages but awarding punitive damages, requires a judgment for the defendant.

On this point defendant relies on the general rule that punitive damages must depend on a concurrent award of actual damages, citing numerous Illinois cases and including Geach v. Olson, 211 F2d 682 (CA 7th, 1955), where it is stated that Illinois courts follow the rule that punitive damages cannot be allowed without proof of actual damage. None of those cases cited are libel cases; although Reeda v. Tribune Co., 218 Ill App 45, concerns a suit against a publisher, in which the court was specifically advised that the declaration did not proceed on the theory of libel nor on “false words causing damage,” and the court found no cause of action stated. The rule which plaintiff contends is applicable in this case is stated in 33 Am Jur, Libel and Slander, §202;

“. . . where the defamation complained of is actionable per se, it is generally held that punitive damages may be awarded even though the amount of actual damages is neither found nor shown.”

That rule has been reiterated in numerous Illinois defamation cases; see Lorillard v. Field Enterprises, 65 Ill App2d 65, p 78, 213 NE2d 1, p 7; Wade v. Sterling Gazette Co., 56 Ill App2d 101, p 106, 205 NE2d 44, p 47; Cowper v. Vanier, 20 Ill App2d 499, p 501, 156 NE2d 761, p 762. In Lorillard (supra) and the other cases cited therein, the Court reiterated the long established rule that in cases of defamatory falsehood, that is, a statement which is libelous per se, both malice and damage to reputation are presumed. However, since the case of New York Times v. Sullivan, 376 US 254, 11 L Ed2d 686, 84 S Ct 710 (1964), and Curtis Pub. Co. v. Butts, 388 US 130, 11 L Ed2d 1094, 87 S Ct 1975 (1967), malice is no longer presumed if the plaintiff is a public official or a “public figure” nor can malice be presumed if the article complained of is a report of governmental acts or utterances. Lulay v. Peoria Journal Star, Inc., 34 III2d 112, 214 NE2d 746 (1966). However, an examination of those cases discloses that the rule with reference to the presumption of damage to reputation in such case is not changed.

To adopt the view that punitive damages in such defamation cases were dependent upon the allowance of actual damages, would be to allow a defamer some immunity because of the excellent reputation of the person defamed, and allow the defamer to become the beneficiary of the unassailable reputation of the one defamed. In Butts, supra, the U. S. Supreme Court pointed out “We would hold, therefore, that misconduct sufficient to justify the award of compensatory damages also justifies the imposition of a punitive award, subject of course to the limitation that such award is not demonstrated to be founded on the mere prejudice of the jury.” (Italics ours.) Curtis Pub. Co. v. Butts, supra, 87 S Ct 1975, at p 1994. They did not state that an award of compensatory damages was necessary to justify punitive damages, or that punitive damages could only be awarded when compensatory damages were awarded.

We therefore hold that the verdict of the jury was not, as the trial court found and declared, “a finding for defendant”; nor was it a nullity as defendant contends, and a judgment for the defendant was not required by law for the reason that the jury made no award of actual damages, if the language complained of was libelous per se.

Plaintiff, at the time of the trial, was 69 years old and a teacher of business law, real estate and political science at Lincoln College. He had been licensed to practice law in Illinois since 1922, in Missouri since 1921 and in New Mexico since 1947 or 1948. He was a graduate of Washington University Law School and practiced law in Edwardsville from 1922 until 1948. He had taught at Washington University Law School, at Southern Illinois University at Carbondale and at Bradley University before his appointment in the summer of 1960 as city attorney, an office which he held approximately 10 months. He had been twice selected by a major political party as nominee for probate judge and one time as its nominee for circuit judge. His appointment as city attorney was made by the Mayor of the city with whom he was politically aligned, but plaintiff made no speeches or statements nor did he write any advertisements or campaign material during the Mayor’s campaign for reelection, which was being carried on at the time of the publícation of the allegedly libelous article. Plaintiff presented ample evidence of his excellent reputation and the high esteem in which he was held by the general public and the members of his profession.

In Whitley v. Associates Discount Corp., 59 Ill App2d 337, p 340, 207 NE2d 482, Judge Coryn of the 3rd District pointed out that in Illinois there are five classes of words which give rise to a cause of action for slander if falsely communicated, and that a majority of American jurisdictions apply the rules applicable to slander to libel as well; he further pointed out: “If the false words, by their plain, ordinary meaning, and without resort to innuendo, impute anything within the first four offensive categories, the slander is one per se requiring no allegation or proof of special damages.” Included among the first four categories are:

1. Those imputing the commission of a criminal offense ;

2. Those imputing infection with a communicable disease of any kind which, if true, would tend to exclude one from society;

3. Those imputing inability to perform or want of integrity in the discharge of duties of office or employment ;

4. Those prejudicing a particular party in his profession or trade.

Those categories have been reiterated by the First District in Coursey v. Greater Niles Tp. Pub. Corp., 82 Ill App2d 76, 227 NE2d 164, and approved by the Supreme Court in its recent opinion (filed May 29, 1968) affirming that case, 40 Ill2d 257, 239 NE2d 837 (1968). Here the words may fairly be said to fall into two of the four categories, namely, imputing a want of integrity in the discharge of duties of office, and prejudicing plaintiff in his profession.

Defendant in answering plaintiff’s amended complaint denied that the last sentence of the article was wholly false and untrue and denied that it had any knowledge that such statement was false and untrue. We consider the evidence conclusive to the effect that it was wholly false and untrue, as did the trial court. That no such rumor existed at the time the author caused the article to be put into print is the only conclusion that can be drawn from the author’s own testimony.

The trial court, after the verdict, found that the article was not libelous per se, apparently adopting the contention that defendant makes in this Court, to the effect that “clarity in thinking will be served if the Court is reminded that modern ruling under both local Illinois law and Federal constitutional limitations, as presently interpreted, are such that it is simply impossible to have a publication libelous per se when the person defamed is a public official.” Defendant interprets Lulay v. Peoria Journal Star, supra, and New York Times v. Sullivan, supra, as authority for such proposition, but a careful reading of those cases discloses that they do not render a publication which reports proceedings, or one which has to do with the conduct of a public official, immune from being libelous per se. The short answer to such contention may be found in the Supreme Court opinion in Coursey v. Greater Niles Tp. Pub. Corp., supra, in which the Court specifically found the alleged publication to constitute libel per se in a case in which the plaintiff was determined by the court to be a public official and within the New York Times guidelines, which in such case require that the public official need allege and prove that the libelous publication was made with knowledge that it was false or with reckless disregard of whether it was false or not. Our Supreme Court in the Coursey opinion leaves no question that the doctrine of libel per se is applicable when the person allegedly defamed is a public official.

Defendant contends that the article was a privileged communication and as such required proof that the publication was made “solely for the purpose of causing harm to the person defamed,” and urges that the evidence shows that defendant was reporting and commenting upon governmental matter as it had developed during governmental proceedings and was reporting and commenting during a political campaign which embraced the governmental matter as one of its issues; that the governmental matter was the question of whether the mayor was ignoring an applicable ordinance and statute in making repeated temporary appointments to a post of city employment; the political campaign was a mayoralty contest in which the mayor was running for reelection; the governmental proceedings were meetings of the city council, attended by plaintiff as city attorney and by the mayor; that plaintiff admitted that he had advised and commented on the applicable ordinance and statute, and that plaintiff owed his appointment to the mayor, a friend of long standing. We think the evidence with reference to the matter being, privileged is more significant for what defendant failed to prove than the evidence upon which defendant has commented.

There is absolutely no evidence presented that at any of the council meetings supposedly covered that plaintiff did or said anything that could reasonably give rise to a rumor that plaintiff was working to break any law; the mayor is not the person who is complaining of any defamation — plaintiff is and he was not a candidate for any office. There is no evidence that plaintiff was participating in any way in the mayor’s campaign for reelection. Although the defendant was attempting to make the question of appointments to the Board of Fire and Police Commissioners an issue in the mayor’s campaign for reelection, there is nothing in the record to show that plaintiff, or the mayor on plaintiff’s advice, had made this an issue.

Defendant urges its contention of a privileged communication which requires proof that it was made “solely for the purpose of causing harm to the person defamed” is supported by Lulay v. Peoria Journal Star, supra.

In the most recent proclamation in this field, the Supreme Court in Coursey v. Greater Niles Tp. Pub. Corp., supra, said:

“With respect to defendant’s contention that the article was a privileged comment on quasi-judicial proceedings, the appellate court correctly stated the controlling principle as expressed in the Restatement of Torts, § 611, that a newspaper is privileged to report the activities of a ‘municipal corporation or of a body empowered by law to perform a public duty . . . although it contains matter which is false and defamatory, if it is (a) accurate and complete or a fair abridgement of such proceedings, and (b) not made solely for the purpose of causing harm to the person defamed.’
“It then noted that the Restatement position was adopted by this court in Lulay v. Peoria Journal-Star, 34 Ill2D 112, 115, with that decision being followed by appellate courts in subsequent cases. (E. g., Segall v. Lindsay-Schaub Newspapers, Inc., 68 Ill App2d 209, 215.) However, the court held that ‘These decisions are distinguishable from the instant case, for here the defendants published what turned out to be an inaccurate account of the proceedings of the Fire and Police Commission. The error was therefore solely attributable to the defendants and hence the matter is not within the privilege herein-before discussed.’ 82 Ill App2d at 83.”

The present case is likewise distinguishable from Lulay and the Appellate decisions following it. Here the language complained of does not purport to be an accurate or fair report of any governmental proceedings; it purports to be only a report of a rumor current in the community. While it may be true that there was contention among the City Council with reference to the mayor’s temporary appointments, the last sentence clearly encompassed the “sting or gist” of the alleged libelous publication. It is that sentence that imputes “want of integrity in the discharge of duties of office” and prejudiced plaintiff in his profession. It cannot be said to be an accurate or fair account of governmental proceedings or of the report of issues in a political campaign, and thereby precludes defendant from invoking the fair comment privilege. See Coursey v. Greater Niles Tp. Pub. Corp., supra. As a result the trial court erred in holding that the plaintiff was required to prove that the article was motivated by actual malice solely for the purpose of causing harm to the plaintiff.

Defendant has here, as did defendant in Coursey, contended that the article was not defamatory but only capable of an innocent construction. We have pointed out that under the authority of Whitley v. Associates Discount Corp., supra, the language complained of, even when read with the entire article, cannot be read innocently, and are within these categories which constitute libel per se. In Colmar v. Greater Niles Tp. Pub. Corp., 13 Ill App2d 267, 141 NE2d 652, the Court held an article accusing two lawyers of instigating a lawsuit and charging an “extortionate” fee for their work and that they faced possible disbarment proceedings because of unethical tactics was libelous per se, saying any statement published of an attorney at law with respect to his profession is actionable if it tends to injure or disgrace him as a member of his profession.

In the present case by plaintiff’s instruction #9, the jury was instructed, without objection from the defendant, that in determining the meaning of the words referring to plaintiff they were to take the words used in the sense which readers of common and reasonable understanding would ascribe to them, that is according to their common and ordinarily accepted meaning. Obviously the trial court in the first instance, after hearing the testimony of the author, considered the words ambiguous or equivocal in meaning, and under the authority of Ogren v. Rockford Star Printing Co., 288 Ill 405, 123 NE 587, the question was properly submitted to the jury.

In John v. Tribune Co., 24 Ill2d 437, 181 NE2d 105, our Supreme Court concluded that the publications could not be read as “of and concerning” the plaintiff, since they referred only to a person other than the plaintiff. In its opinion, the Court did not make any reference to Ogren v. Rockford Star Printing Co., supra, and held that the publications were innocent as to the plaintiff since they were not capable of being construed as referring to her. The language there could not be actionable per se because it was held to refer to a person other than plaintiff. Here there is no possible reference to any one other than Attorney Tunnell nor was it contended that he was not the “target.”

In our opinion this language was not capable of an innocent construction. The statement that Attorney Tunnell was working to break the law was equally an attack upon his integrity and honesty as an attorney and in his official capacity as city attorney. Such a statement would also subject him to the scorn and ridicule of his fellow citizens and colleagues. An attorney has a special duty, greater than that of his fellow citizens, to respect and uphold the law whatever it may be. It is difficult for an attorney to differentiate between his conduct as a citizen and his conduct in his capacity as an attorney. The newspaper referred to the plaintiff as an attorney and in his capacity as a city attorney and therefore it must be presumed he was being accused of intending to break the law as an attorney and in his official capacity as city attorney. Such action on his part would have been in violation of his duty as an attorney and as an officer of court as well as in his capacity as city attorney. This kind of accusation would naturally tend to subject the plaintiff to scorn, disrespect, and distrust by his fellow citizens and members of his profession. To publicly accuse an attorney of incompetence or ineptness is bad enough; to accuse him of dishonesty or having formed an intention of breaking the law is inexcusable. It is properly said that any words which charge an attorney with dishonest or improper practices in the performance of his duties as an attorney are actionable per se. 33 Am Jur, Libel and Slander, § 76.

The jury heard the explanation of the article as presented by the evidence of the author, Clarence Anderson, including his stating that he decided after plaintiff filed suit that the meaning would have been clearer if he had used the word “change” instead of “break,” and admitted that he knew of no efforts on the part of the city administration or the plaintiff to have any law changed. Although he testified he had never intentionally deceived the public by anything he had written in the newspaper, he admitted he had written a letter to the editor signed “Peter Johnson,” while employed by defendant; he also testified that he was the assistant to the publisher. Not only did his testimony show that he had serious doubts as to the truth of the publication but reasonable men could from that testimony only conclude that Anderson knew that the language complained of was not true, and his awareness of the fact that he was originating and causing false information to be circulated. His use of a libel against plaintiff cannot be rationalized as resulting from the heat of a political campaign in which plaintiff was not involved.

In New York Times Co. v. Sullivan, supra, the Court held that the first and fourteenth amendments delimit a State’s power to award damages to a public official in a libel action for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not. Coursey v. Greater Niles Tp. Pub. Corp., supra. By Curtis Pub. Co. v. Butts, supra, the U. S. Supreme Court required the same degree of proof for those characterized as “public figures” on the theory that “public figures” as do public officials, command sufficient continuing public interest and have sufficient access to the means of counterargument to be able “to expose through discussion the falsehood and fallacies of the defamatory statements.”

We find no reported cases holding that a city attorney is a public official within the rules affording freedom of comment upon him. On the authority of Illinois court decisions and opinions of the Attorney General, his position is described in 8 ILP, 244. We believe the position of city attorney as therein described, has, or appears to the public to have, substantial responsibility for or control over the conduct of governmental affairs. One in such position is thrust into public controversy, as plaintiff was by defendant in the present case, and at least has the public meetings of the City Council for a forum in which to expose through discussion the falsehoods and fallacies of the defamatory statement. Plaintiff therefore was required to overcome the New York Times Co. v. Sullivan, supra, constitutional protection by proving that the defamatory statement was made with knowledge that it was false or with reckless disregard of whether it was false or not.

Plaintiff’s amended complaint which by reference incorporated the entire article, charged actual malice couched in the language of New York Times v. Sullivan, supra, as follows:

“The defendant composed, printed, published and circulated said article, and particularly the last sentence thereof, as aforesaid, with actual malice, that is to say: With knowledge that it was a false and untruthful statement or with reckless disregard of whether it was false or not.”

The trial court, however, refused to instruct the jury defining actual malice as with the knowledge that it was a false and untruthful statement or with reckless disregard of whether it was false or not, but instead instructed, over plaintiff’s objection, that plaintiff had the burden of proving “that the matter was composed and published with actual malice, that is, solely for the purpose of causing harm to the plaintiff”; in addition, the court gave its own instruction regarding plaintiff’s burden of proving actual malice which advised the jury, “Plaintiff must prove that defendant’s news article was conceived or inspired solely because of a malicious design to injure the plaintiff.” Despite the fact that the instructions imposed a greater burden of proof than the law imposes, the jury found for the plaintiff. It must be assumed that the jury followed the instructions, and in awarding plaintiff a verdict for punitive damages actually found the plaintiff had been injured in his reputation but simply did not award compensatory damages, realized that both plaintiff’s general and professional reputation in the community was of such calibre that it could withstand, without destruction, such rumors, even if they existed. Such reasoning on the part of the jury is particularly logical in view of the fact that they were given plaintiff’s instruction No. 10, which was:

“The Court instructs the jury that if you find that the article of February 23, 1961 was published with actual malice then the plaintiff is entitled to damages as defined in these instructions. In such case, you may award the plaintiff compensatory damages or punitive damages or both compensatory and punitive damages.”

While this instruction was commented upon by defendant’s counsel, the court treated the comments as an objection which was overruled, but in no sense can the comments be interpreted as an objection to the language to the effect that the jury could award either compensatory or punitive damages, or both. **8 In view of defendant’s failure to make a specific objection (that punitive damages could not be awarded without an award of compensatory damages; the position which defendant takes on appeal) there is a serious question whether defendant should now be allowed to be heard to make such contention in this Court, although we have considered that contention.

We have previously commented on the testimony of the author and his explanation of the article. He testified that he considered that there was such a rumor because of discussions he had engaged in with Legate who contended he was legally a member of the Board of Commissioners and the mayor who contended he was not. He admitted that neither of them told him of any intentions of plaintiff to either break or change any law; that he did not know whether the mayor had discussed the matter with plaintiff and that although he was present at council meeting when plaintiff was present, and the appointments were discussed, the author had never discussed the matter of appointments, the ordinance or statute, with plaintiff. He testified that the sole basis of the story was a conversation he had with the mayor in which the mayor stated, “If this was a law, it should be changed.” He testified that he did not publish the fact that the mayor made such statement in connection with the matter because the mayor did not wish his name used in connection with the matter, although he admitted that defendant frequently found fault with the mayor’s administration in their editorials supporting his opponent. Numerous publications of defendant were introduced into evidence attacking the mayor and using his name, as well as making derogatory remarks about plaintiff.

He testified that the paper did not try to “lambaste anyone.” From this evidence reasonable men might very well conclude that the libelous material was composed and published with a “malicious design to injure the plaintiff.”

The author also testified that he composed the article complained of at about 11:00 a. m. on the date of publication and that the paper in which it was included went to press at 4:30 p. m.; that he had never asked plaintiff what his intentions were, but thought he had tried to contact him either by telephone or going to his office while writing the story. He admitted that it was about six weeks before the mayoralty election which defendant sought to influence and that it was not necessary that the article be published on February 23 rather than a few days later, after an opportunity to authenticate the story. As was said in Curtis Pub. Co. v. Butts, supra:

“In short, the evidence is ample to support a finding of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.”

The jury was by the evidence, justified in determining that no investigation was made of plaintiff’s attempts or intents with reference to either the state law or city ordinance, and no effort made to determine if rumors concerning plaintiff’s attempts or intent existed, and that defendant was in “reckless disregard of whether it was false or not.”

In St. Amant v. Thompson, 390 US 727, 20 L Ed2d 262, 88 S Ct 1323 (1968), the Supreme Court of the United States pointed out:

“The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.”

In Belli v. Orlando Daily Newspapers, Inc., 389 P 579 (1967), the Court said at page 584:

“The defendants made a case — just barely — for the view that the article is capable of being reasonably interpreted as nondefamatory. But since the article on its face is also capable of carrying a defamatory meaning, it is for the jury to decide whether the words were in fact so understood.”

and at page 585 continued:

“We hold that a jury might reasonably conclude that the conduct imputed to Belli was incompatible with the standards of an ethical lawyer and as such violated one of the four traditional categories of libel per se” .... “Any doubt as to the defamatory effect of a publication should be resolved by the common mind of the jury, and not by even the most carefully considered judicial pronouncement.”

We conclude that in the present case the trial court erred in its conclusion, arrived at after the verdict, that the alleged libelous material was nonactionable as a matter of law and in ordering “that the verdict of the jury is contrary to law, and that there is no basis for libel under the facts and the law”; and in entering a judgment for defendant on a verdict for plaintiff.

We therefore grant plaintiff’s motions and deny the motion to dismiss the appeal; we reverse the judgment for defendant and here enter judgment on the verdict in favor of plaintiff, Lena S. Tunnell, Executor of the Estate of Robert W. Tunnell, deceased, against the defendant, Edwardsville Intelligencer, Inc., a Corporation, in the amount of $35,000 and costs.

Judgment for defendant reversed and judgment entered on verdict for plaintiff.

GOLDENHERSH and MORAN, JJ., concur.

       The complete article as published on February 23, 1961 follows:
      1956 Referendum Here Set Up 3-Man Fire Police Board
      By Clarence C. Anderson of The Intelligencer Staff
      Like the old pea shell game, the question of who has jurisdiction in fire and police appointments seemed to be something of a slight-of-hand problem in the city today — at least in some circles.
      On May 22, 1956, the citizens of Edwardsville voted by a 2 to 1 margin to set up a police and fire commission. The powers of this commission were adopted and signed into law by Mayor George L. Moorman, Jr., on June 5,1956.
      Ordinance 1011 states: “There shall be a Board of Fire and Police Commissioners in the City of Edwardsville, Illinois, as provided by law, which shall consist of three members appointed by the Mayor with the consent of the City Council.” Section Two further states: “The Board of Fire and Police Commissioners shall have charge of all appointments to the Fire and Police Departments and shall conduct and hold all entrance and promotional examinations in the manner required by law.”
      The local law was given further teeth with the passage of a law by the General Assembly on May 16, 1957, of the Board of Fire and Police Commissioners Act which made a fire and police commission mandatory in municipalities with a population of more than 5,000.
      Commissioners showed disbelief when City Attorney Robert Tunnell told members of the City Council that he was not familiar with the state statute on the board’s powers and duties but went on to say he did not think such a statute could be passed in Hlinois.
      Mayor William C. Straube told those present that he had personally reappointed John Schwartzkopf of 110 North Kansas St. every 30 days since his first temporary appointment more than a year and a half ago.
      Article 14-10 of the state law entitled, “Temporary appointments” states: “In order to prevent a stoppage of public business, to meet extraordinary exigencies, or to prevent material impairment of either the police or fire department, THE BOARD may make temporary appointments, to remain in force until regular appointments may be made under the provisions of this article, BUT NEVER TO EXCEED SIXTY DAYS." (Editor’s Note: Caps are our own.)
      Commissioners pointed out that Mayor Straube had no jurisdiction whatsoever in making a reappointment every 30 days. Chairman Orval W. Legate told reporters that under the law which governs his group that not even the commission itself had the power to extend a temporary appointment more than 60 days. He also pointed out that at no time did a request to take steps to make the appointment permanent come from the Board of Aider-men. The first step in all appointments must come from the Aldermen asking that the existing vacancy be filled. After this request has been made to the Fire and Police Commissioners, the entire process, according to the state law, is then left in their powers.
      Article 14-4 of the state law states: “The board of fire and police commissioners shall appoint all officers and members of the fire and police departments of the municipality, including the chief of police and the chief of fire department unless the council or board of trustees shall by ordinance as to them otherwise provide.”
      Another question which arose was who would get the appointment to the fire department. Rule 14-8 states: “The board of fire and police commissioners shall prepare and keep a register of persons whose general average standing, upon examination, is not less than the minimum fixed by the rules of the board, and who are otherwise eligible. These persons shall take rank upon the register as candidates in the order of their relative excellence as determined by examination, without reference to priority of time of examination.”

        Chairman Legate pointed out that the replacing of John Sehwartzkopf was being done in keeping with the law. The temporary appointee had not taken the fire examination because of his age, the maximum age limit for qualification being 35 years of age.
      Further impetus was given to the powers of the state law by the law firm of McConnell, Kennedy, McConnell and Morris on Jan. 20, 1959 when they ruled that office of police chief for the city was covered by Section 1A-11 of the state law. The ruling was given for a police association of which local law officers are members.
      The question of appointments to the fire and police department is not something new according to Chairman Legate who stated he met with Mayor Straube and Atty. Tunnell six months ago to help familiarize them with the existing laws. Rumors on the main stem today had it that Atty. Tunnell was working to break the law, whether it was the city or state law was not explained.

       The Federal rule does not require the establishment of actual damages as the basis for the assessment of punitive damages. Wardman-Justice Motors v. Petrie, 39 F2d 512.

       “He is the law officer of the city, not a mere servant of the city council; rather he is the legal adviser of the council and of all city officers, under a duty to advise the city officers with respect to their powers and duties, and he represents the city in all legal matters.
      “While he is bound to obey the directions of the city council concerning litigation with respect to matters wholly within control of the council, in matters which merely concern the public, which are for preservation of morals and maintenance of good order, the abatement of public nuisances, and the destruction of dens of vice and infamy, he is wholly independent of the city council and is a servant of the People, and as to such matters is vested with powers and burdened with duties over which the council has no jurisdiction.”

       It is also to be noted that the court gave its own instruction declaring plaintiff to be a public official and “that said article, even if a defamatory falsehood, was privileged, under the guarantees of the freedom of speech and of the press as guaranteed by the First and Fourteenth Amendments to the Constitution of the United States and, that in order to recover he must prove that the article in question was made with actual malice by the defendant, that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

       Defendant’s counsel’s comment was: “We are dubious. Under Sullivan, actual malice is necessary, and under Lulay, actual malice may consist only in a pointed effort to harm the plaintiff, alone. We also believe Sullivan would require a differentiation between compensatory and punitive damages in the pleading and in the instruction and in the verdict; and we believe that Sullivan, in its general aspects, would require proof of damage before damages (compensatory) could be awarded.”

       In one of the editorials the opening paragraph set forth the first amendment of the Constitution of the United States, and accused plaintiff and the mayor of making a travesty of it, and justice; in the same editorial the author stated that Americans had been in at least 8 recorded battles defending principles which they thought were right, in which 1,096,917 were killed and 1,276,-520 were wounded, and referring to plaintiff continued “The usurping of the ideals for which these men fought and died, just as denying a man an opportunity to defend himself, is unexpressable.” In conclusion the editorial accused plaintiff of participating in a mockery “blindfolding all forms of justice and human decency.”


source: Caselaw Access Project

author: TRAPP, J.

license: Public Domain

text:
    Forest R. Clark, Plaintiff-Appellant, v. William H. Morris, Superintendent, Illinois State Highway Police, and Ross V. Randolph, Director, Department of Public Safety, Defendants-Appellees.
    Gen. No. 10,942.
    Fourth District.
    September 12, 1968.
    Rehearing denied October 7,1968.

      Browder, Anthony & Waaler, of Urbana (Jack Waaler, of counsel), for appellant.
    William G. Clark, Attorney General of the State of Illinois, of Chicago (John J. O’Toole and Philip J. Rock, Assistant Attorneys General, of counsel), for appellees.
   TRAPP, J.

Plaintiff, a member of the Illinois State Highway Police, was suspended for thirty days without pay by order of its Superintendent. By the prayer of a complaint for declaratory judgment, the trial court was requested to declare unconstitutional the statute, chapter 121, § 307.13, Ill Rev Stats 1967, and Rule 9 of the Merit Board of the Illinois State Highway Police, which authorized such order of suspension. The trial court dismissed the complaint and plaintiff appeals.

It is the theory of the complaint, and of this appeal, that the statutory provision and the Rule violate the Illinois and Federal constitutional requirements of due process in that there is no requirement of notice of charges and hearing thereon prior to making such order a suspension. It is urged that this form of discipline is a punitive measure which deprives plaintiff of a property right in status.

The statutory provision, chapter 121, § 307.13, Ill Rev Stats says:

“Disciplinary measures prescribed by the Board (Merit Board) may be taken by the Superintendent for the punishment of infractions of the rules and regulations of the division as promulgated by the Department. Such disciplinary measures may include suspension of any State highway policeman for a reasonable period, not exceeding thirty days, without complying with the provisions of Section 14 hereof.” (Parenthetical material supplied.)

Such provision is complimented by § 307.14:

“Except as is otherwise provided in this Act,1 no State highway policeman shall be removed, demoted or suspended except for cause, upon written charges filed with the Board by the superintendent and a hearing before the Board thereon upon not less than 10 days’ notice at a place to be designated by the chairman thereof. At such hearing, the accused policeman shall be afforded full opportunity to be heard in his own defense and to produce proof in his defense. . . .”

The portion of Rule 9 specifically concerned in this proceeding:

“The Superintendent of State Police may impose the following disciplinary measures without presenting the matter to the Merit Board and without a hearing before the Merit Board:
“1. Suspend any highway policeman for infractions of the Rules and Regulations of the State Highway Police for any period in his discretion, not to exceed 30 days.”

The statutory scheme provided for the administration of Illinois State Highway Police as provided in chapter 121, Ill Rev Stats, includes (1) § 307.1 — The Department of Public Safety shall maintain a division known as IIlinois State Highway Police, and its Superintendent shall be appointed by the Governor; (2) § 307.2 — The Superintendent shall be responsible for the administration and control of the division and with the approval of the Director of Public Safety, “. . . shall make and adopt rules and regulations for the direction, control, discipline and conduct of the members of the division . . .”; and (3) § 307.3 — The Governor, with the advice and consent of the Senate, shall appoint a State Police Merit Board consisting of three members. In brief, the Superintendent and the Director of Public Safety establish the rules of conduct and discipline, while the Merit Board serves as a hearing entity and prescribes disciplinary measures. The statute expressly authorizes suspension as discipline, and expressly finds that suspension for not more than thirty days is a reasonable period. The Rule at issue is in the language of such statute.

Due process is compounded of history, reason and the past course of decisions, and is neither an inflexible procedure, nor a technical concept with a fixed content unrelated to time, place and circumstances. The procedures required to provide due process follow determination of the governmental function, as well as the private interest that is affected. Cafeteria Workers v. McElroy, 367 US 886, 6 L Ed2d 1230, 81 S Ct 1743.

In the historical development of the policy of recognizing merit in public employment in this State, the Legislature has consistently authorized suspension without pay for limited periods as an appropriate disciplinary measure, and it has consistently determined that suspension for a period of thirty days, without written charges and hearing, is reasonable. The Legislature has as consistently provided for written charges and hearings where sterner measures of discipline were imposed. We find that while the State Civil Service System, created in 1905, did not provide for suspension, but rather for separation or reduction in rank or pay as discipline, the Legislature did, in 1895, provide for civil service in cities and determined that suspension without pay for a period not to exceed thirty days without a hearing was reasonable. The Cities and Villages Act of 1961 retains the provision in substance, although it does authorize an employee to request a hearing if suspension is for more than thirty days. Chapter 24, § 10-1-18, Ill Rev Stats 1967. The Act of 1911 providing for civil service in park systems, authorized the precise form of discipline, and this statute as amended in 1963 retains the provision with a slight change in language. Chapter 24%, § 91, Ill Rev Stats 1967. The personnel Code for state employees, adopted in 1955, chapter 127, Ill Rev Stats 1967, provides that a Director of Personnel, appointed by the Governor, shall prepare and submit rules to the Civil Service Commission (§ 63bl08bl5), and specifically requires a rule:

“For the imposition as a disciplinary measure of suspension from State service without pay for not longer than 30 days. . . .”

Section 63blll preserves the distinction of requiring written charges and hearing where such suspension is for a period of more than thirty days.

Plaintiff argues, as a comparison, the recent University Civil Service System, which requires a hearing on charges if requested. Chapter 24%, § 38bl4 et seq., Ill Rev Stats 1967. This System only provides for discharge or demotion of an employee, and it appears that there was no legislative contemplation of discipline through suspension.

It is here argued that the authority of older cases, that there was no property right in public office or employment, has been modified through decisions of the United States Supreme Court in Wieman v. Updegraff, 344 US 183, 97 L Ed 216, 73 S Ct 215; Slochower v. Board of Education, 350 US 551, 100 L Ed 692, 76 S Ct 637; United States v. Rasmussen, 222 F Supp 430. None of these authorities were concerned with this issue of discipline or internal management of personnel founded upon rules propounded upon the authority of law. Rather they were concerned with the substantial injury suffered by reason of exclusion from public employment by governmental acts which were termed patently arbitrary or discriminatory. Plaintiff also urges the authority of Cafeteria Workers v. McElroy, 367 US 886, 6 L Ed2d 1230, 81 S Ct 1743, and Greene v. McElroy, 360 US 474, 3 L Ed2d 1377, 79 S Ct 1400. These cases are of a parallel nature, but actually concern persons in private, rather than governmental employment, deemed to be affected by the governmental acts. In Greene v. McElroy, supra, the court’s conclusion was based upon the fact that there was neither a Congressional Act nor an Executive Order serving as a basis for the revocation of security clearance which was found to deprive the petitioner of his employment as an aeronautical engineer. In Cafeteria Workers v. McElroy, supra, the exclusion was upheld where the governmental action was authorized by Executive Order, despite the fact that the individual was not allowed a hearing.

It is apparent that the Legislature intended, through § 307.14, to provide for notice and hearing prior to discharge, demotion, or suspension for more than thirty days, but recognized in § 307.13 that there are occasions for discipline by administrative suspension for thirty days or less. Such legislative determination has continued for many years and we cannot say that it is not a rational basis for internal administration.

Plaintiff cites Pickus v. Board of Education, 9 Ill2d 599, 138 NE2d 532, requiring us to find that this suspension involves “some liberty or property rights of the plaintiff.” In terms of property right the court determined that there was no violation of due process in failing to provide a hearing where there was no impairment of an existing contract, or denial of earned compensation for services performed. See also Jordan v. Metropolitan Sanitary Dist., 15 Ill2d 369, 155 NE2d 297. These cases, too, relate to exclusion from public employment, rather than to internal administration and discipline. Counsel have cited no cases, and we have found none, which relate to questions of due process in matters of administrative discipline.

Plaintiff argues that individual members of the Highway Police may be subject to repeated suspension for the same charge or charges. In this case plaintiff was served with a notice of suspension by the Superintendent, which specified violations of three rules, identified by number.

The administrative abuse predicted is foreclosed through the decision in People ex rel. Lasser v. Ramsey, 23 Ill App2d 100, 161 NE2d 690 (1959). There, an employee under City Civil Service was suspended for thirty days, returned into service for one day, and again suspended for thirty days. The procedure was repeated. In a mandamus action, the court determined that there was no statutory authority for repeated suspensions upon the same charge, as such would constitute a virtual power of removal contrary to the specific terms of the statute relating to removal.

Plaintiff argues that he asked for a hearing which was denied. Such fact does not appear in the record. Counsel have not included in this record the rules and regulations relating to procedures whereby faults charged against individuals are brought to the attention of the Superintendent for his action. It is reasonable to conclude that he reviews and acts upon the reports of subordinate authority (cf. chapter 127, § 63bl08bl5, wherein the Director of Personnel may review suspensions without pay for longer than thirty days). There is no basis for concluding that the Superintendent of the division of Illinois State Highway Police will be arbitrary and unreasonable in his official actions.

Plaintiff argues that suspension without pay is not authorized under chapter 121, § 307.13. While the statute is not as explicit upon this disciplinary measure as other statutes, it would be incongruous to conclude that the Legislature would provide a form of discipline which would propel this Court into conferring that which many individuals might deem a happy boon and a favor, i. e., pay without work. The status of being “without pay” is an incident of suspension. Nolting v. Civil Service Commission, 7 Ill App2d 147, 129 NE2d 236. By the argument here made we would be required to hold that a member of the Highway Police, after a hearing by the Merit Board and an order of suspension for three months, would be entitled to draw his pay during such period.

Although argued in constitutional terms, the provisions in Rule 9 for other forms of discipline are not at issue in this proceeding. Finding no abuse of discretion in the trial court in dismissing the complaint for declaratory judgment, its order is affirmed. Bathe v. Stamper, 75 Ill App2d 265,220 NE2d 641.

Affirmed.

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


text:
    Lou Ann Millette, a Minor, by Patrick Millette, Her Father and Next Friend, Plaintiff-Respondent, v. Donald Adcock, Defendant-Petitioner.
    Gen. No. 67-45. (Abstract of Decision.)
    Second District.
    September 25, 1968.
    Rehearing denied November 4,1968.
   Opinion by PRESIDING JUSTICE ABRAHAMSON. Not to be published in full.


author: SMITH, P. J.

text:
    Ellis Whitlock and Margaret S. Whitlock, Plaintiffs-Appellees, v. Steve Evans, Defendant-Appellant.
    Gen. No. 10,905.
    Fourth District.
    September 26, 1968.

      Sebat, Swanson and Banks, of Danville (Robert J. Banks, Jr., of counsel), for appellant.
    John A. Lambright, of Danville, for appellees.
   SMITH, P. J.

We granted defendant’s petition for leave to appeal from an order of the trial court setting aside a jury’s verdict in favor of the defendant and granting a new trial. There is nothing asserted or shown in the record in rulings on evidence, instructions, conduct of counsel or otherwise that might be said to have induced an improper verdict or deprived the plaintiffs of a fair trial. Thus, the single issue here presented is whether the trial court properly exercised its discretion in granting a new trial.

There is no conflict in the evidence as to the occurrence events worth mentioning. Plaintiffs, husband and wife, were driving north on a through street protected by a stop sign with the husband driving. The accident occurred about 9:00 p. m.; a drizzling rain was falling and freezing on the pavement; plaintiffs’ speed was about 15 to 20 mph; plaintiff-driver saw the defendant’s car when it was about two car lengths from the intersection and as they were about to enter the intersection; there was no salt, sand, cinder or other abrasives on the street; plaintiff-driver did nothing except proceed onward at the same speed although he watched the defendant’s car from the time he first saw it enter the intersection until about the time of the impact and, as abstracted, said to his wife, “This fellow is not going to stop, I don’t think.” Plaintiffs’ car was struck at the left-rear fender and bumper by the right-front fender and bumper of defendant’s car, spun around and hit a parked car and a post.

Defendant was a sixteen-year-old boy, had taken a driver’s training course and received his driver’s license some six to eight weeks before the accident. He had never driven on ice before; he slid a bit three or four blocks from the accident; had no difficulty at intervening intersections; didn’t see the stop sign until he was about 10 feet from it, thought it was obscured by window steaming or otherwise, but did not mention this in his report to the police officer. He was traveling east under 20 mph because of the icy and slick conditions of the street, saw the Whitlock car to his right as it was about to enter the intersection and applied his brakes gradually; the speed of his car decreased; he turned to the left; the car responded and slid and skidded into the left-rear of the plaintiffs’ car with the right-front of his car striking the left-rear of the plaintiffs’ car. He had made three stop signs preceding the occurrence without any problem or difficulty. The stop sign was five feet from the intersection and he did not see it until he was about ten feet from it. His testimony as to his observation of the stop sign or an obstruction is somewhat equivocal. He testified “I was about ten feet from the stop sign before I saw it. I think I looked at the stop sign once or twice later that evening. This is one thing I couldn’t remember too well. It seems like there was something obstructing it. I didn’t mention the obstruction in my deposition. I hadn’t really remembered it. That is my only trouble. I think it is right that I did not tell the police officer or the Whitlocks that night that there was anything obstructing my vision of the stop sign.”

In our judgment, the propriety of the order granting the new trial is controlled by Calvetti v. Seipp, 37 Ill2d 596, 227 NE2d 758, which affirmed the same case in 70 Ill App2d 58, 216 NE2d 497. Calvetti involved a defendant’s car sliding on an icy road so that it skidded into the other lane of traffic. There was a verdict for the defendant. The trial court denied a post-trial motion both for judgment n. o. v. and for a new trial on the issue of damages only. The Appellate Court held that the defendant was negligent as a matter of law and remanded for a trial on damages only. The Supreme Court affirmed. In that case, as in this, no issue of contributory negligence is raised. The Supreme Court there held that the fact that the defendant’s car skidded in front of the one in which the plaintiff was riding must be deemed to have arisen from some negligent act or omission, in the absence of explanation to the contrary, and stated that these circumstances leave room for no inference other than that the defendant was driving too fast or braked or steered her car improperly or caused the skidding through some other form of negligence. In the case at bar, the defendant testified that he did not see the stop sign until it was about ten feet from him. He didn’t see it because of some vague and illusory notion that there was some obstruction. He thought he had looked at the stop sign a couple times after the accident. He didn’t regard a possible obstruction as important enough to mention in his pretrial deposition nor to mention to the police officer nor to tell the Whitlocks. He testified to negotiating three previous stops with knowledge of the icy conditions and without any difficulty. As Whitlock observed the defendant approaching the intersection he did not think the defendant was going to stop.

These circumstances leave room for no inference other than that the defendant failed to see the stop sign in time to bring his car to a stop under the existing conditions, or was traveling too fast for conditions at this point, or failed to brake properly or failed to steer properly. Having safely negotiated three previous stop signs on the icy roads without difficulty, it seems a bit unreasonable to attribute the proximate cause of this accident to conditions alone rather than to conduct of the defendant. Under Calvetti, therefore, it seems clear to us that a verdict in favor of the defendant could never stand when all of the evidence in the case is considered together with the only reasonable inferences to be drawn therefrom. It thus follows that the trial court should have granted a judgment n. o. v. and resubmitted this case to the jury for a trial of the damages only.

Accordingly, the judgment of the trial court granting a new trial is reversed and this cause is remanded to the trial court for trial on the issue of damages only.

Reversed and remanded with directions.

TRAPP and CRAVEN, JJ., concur.


text:
    Rosalie H. Waldron, Plaintiff-Appellee, v. Selma C. Hardwick, Defendant-Appellant.
    Gen. No. 10,928.
    Fourth District.
    September 26, 1968.
    Rehearing denied October 25,1968.

      CRAVEN, J., dissents.
    Jack E. Horsley and Richard F. Record, Jr., of Mattoon, for appellant.
    Ryan & Heller, of Mattoon (Harlan Heller, of counsel), for appellee.
   TRAPP, J.

Defendant appeals from a judgment in the sum of $2,600, entered following a jury verdict. The trial court instructed the jury that the defendant was guilty of negligence as a matter of law, so that the only issues considered were proximate cause and plaintiff’s freedom from contributory negligence. Defendant’s post-trial motions were denied.

Issues raised upon this appeal include the question of error by the trial court in denying defendant’s motion for a directed verdict at the close of plaintiff’s evidence and at the close of all of the evidence.

The only testimony presented upon the issues of negligence and freedom from contributory negligence is that of the plaintiff and of the defendant. It may be said that neither party saw the other. At the place of collision, Highway 45 is a two-lane paved highway extending north and south. All of the evidence is that it is straight and open, with no obstruction to the view of either of the roadway, or its shoulders. The collision occurred at 10:00 o’clock a. m. The pavement is described as dry, and atmospheric visibility was good. Some distance south of the place of collision, described as a one-half mile or more, the highway has a slightly lower elevation forming a dip or depression, but, continuing south, there is a rise in the elevation. The testimony is that an automobile is not concealed by such depression as one looks south from the point of collision.

Defendant, testifying under section 60 of the Civil Practice Act, stated that she had turned onto the highway from an intersecting road about one-fourth mile south of the place of collision. Her customary route to her destination could not be followed by reason of construction on other highways not concerned here. Being required to plan a different route, she testified that she pulled clear of the roadway and onto the right-hand shoulder to determine her course of travel. This pause is described as being of a few seconds duration. She did not recall whether she had put her foot on the automobile brake while standing. Having determined a plan of travel, defendant testified that she looked to the rear by placing her head out of the window on the driver’s side, and that she turned around and looked back. Although she could see a half mile or more, she saw no approaching vehicle. She then put her car into first gear and moved forward upon the shoulder some three car lengths of her 1955 Plymouth four-door sedan, and as her automobile was moving at about five miles per hour turned onto the pavement slab. She used no signal light, gave no arm signal and did not look into her rearview mirror during this movement. The collision occurred as her left front wheel got onto the highway. Her car was first struck just forward of the edge of the left front door.

Plaintiff’s testimony is that she had commenced her journey around 6:00 o’clock a. m., and prior to the collision had travelled some 140 miles in her 1960 Valiant Sedan. She was accompanied by her daughter who did not testify, it being stated that she was attending college in Georgia at the date of the trial. In substance, plaintiff’s testimony was that she was driving 60 to 65 miles an hour, that the highway was straight, level and the pavement dry, the visibility was good and that there was no obstruction of her view of the roadway, or of the shoulder. Her testimony, on direct examination, is that she did not see any vehicle as she approached the place of collision — that she first saw defendant’s automobile a car length ahead, its front end then on the highway, and the collision immediately ensued. She stated that she did not apply her brakes, and nothing in the abstract suggests an attempt to move her car laterally. Damage to defendant’s automobile was on the “left side of the front end.” On cross-examination she testified that there was no obstacle to her view for at least a half mile as she approached the point of collision.

Defendant argues that the motion for directed verdict in favor of the defendant should be allowed where all of the evidence, viewed most favorable to the plaintiff, fails to establish an essential element of plaintiff’s case. Carter v. Winter, 32 Ill2d 275, 204 NE2d 755. Here, the argument is directed against the sufficiency of the evidence upon the issue of plaintiff’s exercise of reasonable care for her own safety and freedom from contributory negligence. So far as the abstract discloses, the trial court made no statement of reasons for the ruling upon defendant’s motion, but it appears that he had theretofore allowed plaintiff’s motion to withdraw the issue of defendant’s negligence from the jury, and to instruct the jury that the defendant was negligent as a matter of law.

The parties agree that the rule of Pedrick v. Peoria & Eastern R Co., 37 Ill2d 494, 229 NE2d 504 and Keen v. Davis, 38 Ill2d 280, 230 NE2d 859, is to be applied. In these opinions the Supreme Court determined that parties are entitled to a jury trial upon an issue where the evidence discloses a substantial factual dispute, but that verdicts ought to be directed and judgments n. o. v. ought to be entered by the trial court in those cases in which all of the evidence, viewed in the aspects most favorable to the party against whom the motion is directed, so overwhelmingly favors the movant that no contrary verdict based on the evidence could stand. This is true even though the record discloses “some evidence” in support of the position of the party against whom the motion is directed. The explicit purpose of the rule is to avoid new trials where, under the evidence, contrary verdicts would necessarily be set aside.

We consider the duty imposed upon the plaintiff under the authorities as to the issue of the exercise of ordinary care for her own safety. There is a common-law duty to be on the lookout for other automobiles moving or standing in the highway. Collins v. McMullin, 225 Ill App 430; Paul v. Carman, 310 Ill App 447, 34 NE2d 884; Bates v. DeBose, 14 Ill App2d 574, 145 NE2d 118.

A “highway” is defined:

“The entire width between boundary lines of every way or place of whatever nature when any part thereof is open to the use of the public as a matter of right for purposes of vehicular traffic, . . . (excepting park district highways).”

Chapter 95%, § 109 (a), Ill Rev Stats 1967.

There is a duty to use every precaution to avoid a collision. Skamenca v. Reeser, 294 Ill App 216, 13 NE 2d 668 and Pottei v. Demanes, 338 Ill App 287, 87 NE2d 332. While it is alleged, and there is evidence that defendant started her standing vehicle when the movement could not be made with reasonable safety in violation of chapter 95%, § 161, Ill Rev Stats 1967, such is not conclusive upon the issue of plaintiff’s exercise of ordinary care for her own safety. The duty of the parties to exercise ordinary care to avoid a collision is reciprocal. Collins v. McMullin, 225 Ill App 430. It has been said that while a motorist has a right to expect that the driver of a parked or standing vehicle will not move into the flow of traffic until it can be done with safety, nevertheless, the motorist is required to keep a lookout, and to have his car under control to avoid such movement in anticipation that a parked or standing vehicle may turn into the flow of traffic. Oliver v. Yellow Cab Co., 98 F2d 192; Harrison v. Bingheim, 350 Ill 269, 182 NE 750; Sullivan v. Ohlhaver Co., 291 Ill 359, 126 NE 191; Fina v. Richardson, 293 Ill App 133, 11 NE2d 842. It is noted that a motorist proceeding on a preferential street does not have an absolute right-of-way, but must exercise reasonable care to keep a lookout for vehicles improperly entering such preferential highway. Connor v. McGrew, 32 Ill App2d 214,177 NE2d 417.

All of the evidence upon the issue of plaintiff’s exercise of ordinary care to keep a lookout for vehicles moving or standing in the highway and to exercise ordinary care to have her car under control to avoid collision is that of plaintiff herself. In its most favorable aspect, the evidence shows that she was travelling upon a straight and level highway in the daytime with a totally unobstructed view for at least one-half mile prior to the time and point of collision. There is nothing in any testimony to suggest that her attention was diverted by other traffic. She states that she did not see defendant’s car as, under the evidence, it was moving slowly upon the shoulder for some 60 feet or more, until she was some 15 or 20 feet from defendant’s vehicle at which time its left front wheel was on the pavement. She did not apply her brakes or swerve her car. Such acts would presumably require prior observation of the danger. The argued fact that she was driving within the speed limit on her proper side of the highway does not supply the missing element of reasonable care to observe vehicles moving or standing on the highway. Plaintiff urges that there is merely a matter of failure to recall seeing defendant’s car prior to the moment before collision. As abstracted, her initial statement on direct examination was bluntly that she did not see defendant’s automobile, just as she subsequently stated that she did not apply her brakes. We find nothing which claims or suggests any amnesia as to events preceding the collision. Again, plaintiff argues that she was entitled to expect that defendant would obey the statute cited. Having noted the authorities which established that she had no absolute right which relieved her of the duty to use ordinary care, it is difficult to accept such argument as to a vehicle which she did not observe.

It appears that the opinions in Pedrick, and Keen v. Davis, supra, specifically contain facts and state conclusions applicable to this case. In the former opinion, the plaintiffs testified that they did not see, or did not recall seeing, flasher signals operating at a railroad crossing, or that they did not know if such were in operation. Several witnesses stated categorically that the flashers were operating. In the immediate context of that opinion, the testimony in behalf of the plaintiff was directed to establishing the negligence of the defendant, but it is apparent that the conclusion stated in the opinion is equally applicable to the element of the plaintiff’s freedom from contributory negligence. The Supreme Court stated that considering the dubious probative value of plaintiffs’ evidence in the light of the unequivocal contrary testimony, the evidence so overwhelmingly favored the defendant that no contrary verdict could stand, and affirmed the Appellate Court in reversing the judgment of the trial court.

In Keen v. Davis, supra, plaintiff’s decedent drove at a speed of 30 or 35 miles per hour through a dense cloud of dust raised by a truck which was travelling ahead of defendant’s truck. The evidence was that the vehicles collided in the center of the highway. The Appellate Court had reversed the directed verdict for defendant entered by the trial court, holding that there was a jury question as to whether plaintiff decedent exercised ordinary care in driving at such speed when visibility was minimal by reason of the dust. The Supreme Court determined that upon the record, plaintiff could not prove freedom from contributory negligence, or that defendant was, in fact, negligent, reversed the Appellate Court and affirmed the trial court’s directed verdict for the defendant.

Here, under the testimony of the plaintiff, no facts are in dispute upon the essential issue of the exercise of reasonable care to keep a lookout for vehicles standing or moving in the highway ahead of the plaintiff. Had her testimony purported to be that she was maintaining a lookout, such would be subject to the rule frequently announced that one may not look with an unseeing eye, or assert a continuous lookout yet fail to see that which she clearly would have seen if exercising ordinary care. Payne v. Kingsley, 59 Ill App2d 245, 207 NE2d 177.

Nothing before us suggests that new or different evidence upon this issue would be presented upon a new trial. By reason of the conclusion that the judgment must be reversed, it is not appropriate to discuss the other issues raised.

Reversed.

SMITH, P. J., concurs.

CRAVEN, J., dissents.


author: ALLOY, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Marvin L. Bond, Defendant-Appellant.
    Gen. No. 67-49.
    Third District.
    September 18, 1968.

      William Bailey, of Rock Island, for appellant.
    Richard Stengel, State’s Attorney of Rock Island County, of Rock Island, for appellee.
   ALLOY, P. J.

Defendant Marvin L. Bond was convicted by a Bock Island County jury on January 27, 1967, of the crime of attempted murder. He appeals to this Court from the conviction and sentence which resulted.

The evidence in this cause indicates that early in December, 1966, Sammy Bell told defendant Bond that he saw a man named Tony Badillo dancing with Bond’s wife. A few days thereafter, on December 4, 1966, defendant Bond found Tony Badillo in Tony’s home. He forced him at gunpoint to go to Bond’s home. The evidence disclosed that Bond used his gun to strike Tony about the face. He then forced Tony at gunpoint to go to the Avalon Tavern about 2:00 o’clock in the afternoon, but after Bond threatened the life of Tony, Tony got away when Bond went into a washroom. There was some evidence that Bond stated that he would take care of Bell because of what Bell might tell about what Bond had done or would do to Tony. At about 3:30 in the same afternoon of December 4, 1966, defendant Bond went to the home of Sammy Bell and found Bell seated in a car in the back of his house. Evidence disclosed that Bond got into the car with a gun in his hand and told Bell, “I’m going to blow your damn head off.” Bell testified that defendant Bond then struck him and shot him in the head with the gun which Bond was carrying. He also testified that he had known Bond for about six months and that Bond was then wearing a blue ski jacket.

Other witnesses corroborated that Bond was wearing the clothing described at the time and that they saw defendant Bond the afternoon of December 4 with a gun (from testimony of two witnesses who drove Bond to the Bell house). Susan Pittard and Dennis Schneekloth met Bond shortly after they left him at Bell’s house and Bond gave his gun to Susan Pittard and told her to get rid of it. Bond also told her that he thought he had killed Sammy Bell. Another witness testified that he saw a man with a blue ski jacket in Sammy Bell’s car around 3:30 p. m. on the afternoon of December 4. Bond was wearing a blue ski jacket when he was arrested and six .25 automatic shells were found in his pocket. Following his conviction by the jury, Bond was sentenced to the penitentiary for not less than 15 nor more than 20 years.

On appeal to this Court, defendant Bond contends that (1) the trial court committed reversible error in refusing to allow defendant Bond a continuance; (2) in allowing the testimony of witnesses whose names were given to defendant’s attorney just prior to trial; and (3) in allowing testimony in detail of the battery committed by Bond upon Tony Badillo prior to the attempted murder of Sammy Bell.

The attorney who defended Bond was appointed to represent him on January 6, 1967, and trial was set for 17 days after such date. It was contended by the attorney that during this 17-day period he had to contact 32 witnesses and prepare and argue three motions in the case. He also contended that on the day of the trial he was notified of six additional witnesses and he then moved orally for a continuance, which was denied. Such attorney also argues that he had no assistance from defendant himself as defendant was not able to make bond.

The basic principle involved on the issue of the request for a continuance is one which, in essence, determines whether defendant has received a fair trial and if his attorney in a criminal case is given sufficient time in which to prepare for trial (People v. Blumenfeld, 330 Ill 474, 489, 161 NE 857). The court, in the Blumenfeld case referred to, pointed out that the right of the accused to appear by counsel includes reasonable time for counsel to prepare the defense. It is pointed out that the constitutional guarantee that an accused shall have assistance of counsel is not a barren right and that defendant should not be deprived of it by compelling counsel to go to trial unprepared and without a reasonable opportunity of studying the case. It is pointed out in the Blumenfeld case, supra, that defendant’s right to have counsel and have his counsel prepare his case for trial is a substantial right and that to deny counsel sufficient time in which to prepare the case is a denial of a substantial right; that if defendant is not given enough opportunity to prepare for trial, the trial becomes a farce.

At the same time it is noted that the question of whether defendant’s attorney needs more time to prepare for trial rests within the discretion of the trial judge and the determinations of such trial judge should be upheld unless there is evidence of an abuse of such discretion. It is only where the trial court has abused its discretion in denying a reasonable time for preparation of the defense, that a court of review will interfere with the trial court’s action in denying a motion for a continuance (People v. Celmars, 332 Ill 113, 163 NE 421). We have uniformly held that the ruling on a motion for a continuance is a matter resting in the sound judicial discretion of the trial court and will not be disturbed, on review, unless it is shown that the discretion has been abused.

Whether there has been abuse of discretion necessarily depends upon the particular facts in each case (People v. Singer, 288 Ill 113, 123 NE 327; People v. Van Norman, 364 Ill 28, 2 NE2d 891). In the case before us, the attorney waited until the day of the trial before he made his oral motion for a continuance assigning as his only grounds the fact that with his other legal work he just did not have time to adequately prepare the defense. There was no affidavit or statement as to any particular matters which had kept him occupied during the period before trial except the mention of the three motions argued in the instant case. It is apparent that if the attorney could see that he was running short of time, he could have sought his continuance earlier or at least specified in his motion with affidavits, the specific reasons for a continuance when made on the day of the trial. The circumstance that he was served with the names of a few new witnesses on the day of the trial, would not automatically give the defendant a right to a continuance, in view of the fact that the State’s Attorney offered to have these new witnesses available to defendant’s attorney to question whenever he wished to talk with them. On the basis of the record before us, therefore, it is apparent that we would not be justified in finding that the trial judge abused his discretion in refusing the continuance (People v. Ritcheson, 396 Ill 146, 71 NE2d 30). We note also that the attorney who represented the defendant had actually represented defendant at the preliminary hearing in the month of December, 1966, and did not first learn of the case when he was appointed, 17 days before trial.

Defendant’s contention that the court erred in allowing three certain witnesses to testify (on the basis that defendant did not have proper time to investigate such witnesses), in our judgment, on the record, would not justify a reversal. One of the witnesses, Opal McLaughlin, testified that her husband gave Bond the gun involved in the crime approximately four months before the alleged attempted murder. Her testimony was objected to because her name was not furnished to the defendant prior to the morning of the trial. The testimony of Opal McLaughlin was no surprise to defendant as the defendant himself testified that this is where he obtained the gun. The State’s Attorney also offered to allow defendant’s attorney to question this witness before the jury was selected. Under the law of this State it is consistently held that the discretion reposes in the trial court to permit witnesses to testify notwithstanding the absence of their names in the list of witnesses furnished by the State and unless defendant can show he has been prejudiced by surprise or otherwise, the trial court’s exercise of such discretion will not be disturbed upon review (People v. Martin, 74 Ill App2d 431, 221 NE2d 13).

The second witness to which defendant objected involved the testimony of a pawnbroker with whom Bond had pawned the gun in question. This was also no surprise to defendant and again the attorney for defendant was given an opportunity to question the witness before trial. The final witness to whom objection was made, testified that he helped dismantle the gun and throw it away. The name of this witness came up during the course of the trial and it was the first time that the State learned of the name of such witness. There was no surprise alleged by defendant here since he knew this witness personally and also knew what the witness would testify to if called. Since none of these witnesses were actually eyewitnesses to the crime, their testimony was mainly corroborative and cumulative and would not justify a reversal on the grounds alleged.

The question with which we were most concerned revolves about the detailed proof which the State’s Attorney made of the alleged battery committed by Bond upon Tony Badillo, an hour and a half before the attack upon Sammy Bell. The assault upon Tony by defendant Bond was a separate act and crime and Bond had been charged with the crime of battery against Tony, but the charge was dropped. Even though there was a sequence connection between the actions of Bond when he struck Tony and his attack upon Bell one and a half hours later, they were in fact two separate offenses. Ordinarily, evidence that defendant has committed another crime wholly independent of or disconnected from the one for which he is being tried would not be admissible (People v. Brewer, 355 Ill 348, 189 NE 321). There are exceptions to the rule which revolve around the fact that if there are peculiar and distinctive features common to the crimes committed it would not be improper to admit the testimony (People v. Lehman, 5 Ill2d 337, 343, 125 NE 2d 506). The question in such case is whether defendant’s conduct evidenced a peculiar plan to commit a particular offense and the courts in such cases do not exclude the conduct occurring subsequently or prior to the act for which a defendant is being tried. In the case of People v. Carter, 38 Ill2d 496, 232 NE2d 692, evidence of a previous attack upon a Miss Lavery was admitted at a trial of a defendant for the murder of one Lorraine Brownstein. In that case the court stated that although the court recognized that evidence showing commission of a separate offense unrelated to the crime charged ordinarily should not be received, if such evidence tends to prove any fact material to the issue being tried it is properly admissible. The court found that the testimony concerning the attack on Miss Lavery tended to establish the identity of the weapon used in the Brown-stein murder and its owner. The court found that defendant’s conduct in connection with the.Lavery attack was similar in significant respects to his conduct in connection with the Brownstein murder and indicated a common design and was admissible as an exception to the rule prohibiting evidence of a crime other than that for which defendant is being tried. Similar conclusions have been reached in other cases, as in People v. Brown, 26 Ill2d 308, 186 NE2d 321, where a robbery occurring six days prior to the offense for which the defendant was being tried was admitted. On the basis of such precedents the admission of evidence of the attack upon Tony Badillo would tend to show the motive involved and proof of the fact that defendant Bond had a gun and was dressed in certain clothes which he was wearing at the time of the attack on Sammy Bell.

We feel, however, that the prosecution, in introducing, in great detail, evidence of the battery which was described including pictures of Tony Badillo showing his battered face, was introducing evidence which was unnecessary. It would have been sufficient to show, through the witness Tony Badillo, that he saw Bond with a gun at the time in question, that Bond struck him, and also that he observed the clothing which Bond was wearing. Going further into description of the physical condition of Tony Badillo was not essential to the case for the People. While such evidence was not proper, under the facts as disclosed by the record and the evidence in this cause, we do not believe we would be justified in reversing by reason of such evidence, particularly in view of evidence in the record of a common plan by Bond as to the assault on Tony prior to the shooting of Bell. We believe that this case is analogous in this respect, to the case of People v. Cione, 293 Ill 321, 333-334, 127 NE 646, where the court concluded that detailed evidence of a robbery should not have been admitted into evidence but that, in view of the facts in the record, the jury could not have been influenced to reach the verdict it did because of other evidence relating to the crime which was presented in the case.

Since we find no reversible error in the record, the judgment of the Circuit Court of Rock Island County will, therefore, be affirmed.

Affirmed.

STOUDER and CULBERTSON, JJ., concur.


text:
    Ruth Anderson, Plaintiff-Appellant, v. Davis Development Corp., an Illinois Corporation, Defendant-Appellee.
    Gen. No. 67-97.
    Third District.
    September 18, 1968.

      Herbert M. Spector and Peter Denger, of Rock Island, for appellant.
    John V. Patton, of Moline, for appellee.
   ALLOY, P. J.

Plaintiff Ruth Anderson, as shown by the complaint in this cause, was injured in a fall on ice on a parking lot of a shopping center owned by Davis Development Corp., defendant. Plaintiff filed a complaint for damages which was dismissed upon motion and leave granted to plaintiff to amend. An amended complaint was filed and it was likewise dismissed on motion. Plaintiff thereupon appealed to this Court and on appeal asserts that the trial court erred in dismissing the amended complaint.

The amended complaint alleges that on February 3, 1966, plaintiff, as a business invitee, was on the defendant’s premises located in Moline, Illinois; that defendant, as the owner of the shopping center, undertook gratuitously to clear off ice and snow from the parking lot and had an obligation to clear the ice and snow in a reasonable and prudent manner. It was then alleged that defendant, or its agents or employees, “were careless in the obligation which it had imposed upon it in gratuitously attempting to clear the premises of ice and snow and permitted dangerous amounts of ice and snow to remain upon the premises after several attempts to remove and clear the ice and snow.” It was also alleged that if the work had been performed in a reasonably prudent manner the ice and snow would have been removed and cleared and that it was possible to remove and clear the ice and snow so that no dangerous condition would remain. The trial court concluded that a cause of action had not been alleged and dismissed the complaint. The issue before us is whether the plaintiff had in fact stated a cause of action.

Under the precedents in this State, a plaintiff must allege facts in the complaint from which the law will raise a duty (Darling v. Charleston Memorial Hospital, 50 Ill App2d 253, 310, 200 NE2d 149, affd 33 Ill2d 326, 211 NE2d 253; Muhlbauer v. Kruzel, 39 Ill2d 226, 234 NE2d 790). A failure to allege such facts justifies dismissal of the complaint on motion. The applicable rule in this State with reference to injuries resulting from falls on icy sidewalks is stated in Zide v. Jewel Tea Co., 39 Ill App2d 217, 222-223, 188 NE2d 383, where the court states:

“A property owner is not liable for injury sustained by a business invitee in a fall on an icy sidewalk or parking lot maintained by the property owner for the use of its customers where the condition is a natural one and not caused or aggravated by the property owner. Kelly v. Huyvaert, 323 Ill App 643, 56 NE2d 638. However, a property owner may be liable for injury sustained by a business invitee who falls and is injured as a result of snow and ice which did not accumulate from natural causes, but as a result of the property owner doing something which causes an unnatural or artificial accumulation of the ice and snow. Fitz Simons v. National Tea Co., 29 Ill App2d 306,173 NE2d 534.”

In the Zide case the court set aside a substantial verdict for the plaintiff for the reason that there was no evidence that the ice upon which plaintiff is alleged to have fallen was caused or aggravated by the defendant, Jewel Tea Company. This conclusion was consistent with the determination of the Court in Kelly v. Huyvaert, 323 Ill App 643, 56 NE2d 638, where the court indicated that in no case which came to the attention of the court, has a property owner been found liable where the icy condition had been general throughout the neighborhood and was not aggravated or caused in any way by the property owner, but where it resulted from a natural fall of snow, or a natural development of ice or snow.

In Riccitelli v. Sternfeld, 1 Ill2d 133, 115 NE2d 288, defendant had removed snow from the sidewalk and as it melted it accumulated on the sidewalk and formed ice. The court held (at page 137) that this did not constitute negligence on the theory that the water which froze and produced the lump of ice on which plaintiff fell came from natural causes. The court observed that it could not be said to have arisen from anything defendant did other than moving the snow obstructing his driveway and making a path on the sidewalk for pedestrians. What the courts have been saying in the respective cases is that mere removal of snow, which may leave a natural ice formation remaining on the premises, does not of itself constitute negligence.

In the cause before us, plaintiff relies almost entirely on the case of Fitz Simons v. National Tea Co., 29 Ill App2d 306, 173 NE2d 534. In that case it was shown that the ice upon which plaintiff fell was not a natural accumulation but that it in fact resulted when defendant removed some of the snow and piled it in an area where drainage caused melting snow to accumulate and freeze. The melting and freezing as it drained across the parking lot occurred over a period of nearly a month. It was shown that defendant had knowledge or should reasonably have had knowledge of such unnatural accumulation of the ice. In the Fitz Simons case the court observed (at page 318):

“. . . normally there is no liability for injuries resulting from the general slipperiness of streets or sidewalks due to the presence of snow or ice which have accumulated as a result of natural causes, but there may be liability where snow or ice has been produced or accumulated by artificial causes or in an unnatural way or by a defendant’s own use of the area concerned and creation of the condition, and where it has been there long enough to charge the responsible party with notice and knowledge of the dangerous condition: Graham v. City of Chicago (1931) 346 Ill 638, 178 NE 911. Cf. Ritgers v. City of Gillespie (1953) 350 Ill App 485, 113 NE2d 215; King v. Swanson (1919) 216 Ill App 294.”

The court emphasized in the Fitz Simons case there was an unnatural accumulation of ice or snow so that a question of fact was raised for the jury. In the cause before us there is no specific allegation that there was an unnatural accumulation of snow or ice in any respect. All that is stated is that defendant was careless in the obligation it had imposed upon it in attempting to clear the premises of ice and snow; that it made several attempts to do so but did not remove it all, and thus permitted some to remain. Under the precedents in this State, this would not be sufficient to charge negligence. If the complaint had alleged that the snow and ice upon which plaintiff fell was other than that of a natural accumulation, then a question of fact would have been raised which would have justified submission to a jury. Nothing in the complaint, however, suggests that defendant created an unnatural condition which led to the fall by plaintiff. The trial court found that no cause of action had been stated, ostensibly on the premises that a property owner is not required to guarantee to his invitees that the premises will never be slippery nor is he required to insure the safety of his invitees if he attempts to remove snow and does not succeed in doing so, unless such act results in some unnatural accumulation or a specific dangerous condition. To recite simply that it was possible to remove and clear the ice and snow so that no dangerous condition would remain and that defendant failed to do so, on the basis of the precedents in this State, would not state a cause of action.

We must, therefore, conclude that the order of the Circuit Court of Rock Island County in dismissing the amended complaint was proper and should be affirmed.

Affirmed.

STOUDER and CULBERTSON, JJ., concur.


author: MORAN, J.

text:
    The People of the State of Illinois ex rel. John M. Karns, Jr., Plaintiff-Appellee, v. Village of Caseyville, Defendant-Appellant.
    Gen. No. 67-110.
    Fifth District.
    September 19, 1968.

      Russell H. Classen, of Belleville, for appellant.
    Robert A. Hayes, Jones, Ottesen & Fleming, of Belleville, for appellee.
   MORAN, J.

On January 10, 1966, plaintiff filed a complaint in quo warranto pursuant to chapter 112, section 9 of the Illinois Revised Statutes, claiming that the defendant unlawfully exercised and usurped authority over certain property and demanding that defendant show by what authority it claimed to exercise authority over the territory in question.

The defendant filed an answer denying the allegations of the petition and an additional answer justifying its exercise of authority over the territory on the ground that it had legally annexed the territory by adopting and approving annexation Ordinance No. 349 after a petition had been filed requesting that the territory be annexed to the Village of Caseyville. The terms and provisions of the ordinance were not contained in the answer nor was the ordinance attached thereto.

No further pleadings were filed by either party and a hearing was then had in the trial court on the quo warranto petition. The parties stipulated that Ordinance No. 349 which purported to annex the property in question be admitted into evidence and also a plat and an aerial photograph of the territory. All of these exhibits, including the ordinance, disclosed without question that the territory purportedly annexed by Ordinance No. 349 was not contiguous to the defendant as required by chapter 24, section 7-1-8 of the Smith Hurd Illinois Revised Statutes.

After the hearing and after receiving briefs from both parties, the trial court entered an order holding the annexing ordinance void on the ground that the territory annexed was not contiguous to defendant as required by chapter 24, section 7-1-8 of the Smith Hurd Illinois Revised Statutes, and enjoined the defendant from exercising any further authority over the territory.

Defendant in its brief had contended that the territory in question was contiguous and that the plaintiff was precluded from questioning the validity of the annexation because it had not traversed the “justification” filed by the defendant by filing a reply pursuant to chapter 112, section 11 of the Illinois Revised Statutes which provides: “The plaintiff may reply to the answer or present a motion directed thereto as in other civil actions.”

After the judgment order was entered, defendant filed a post-trial motion asserting that the trial court erred because the territory in question was contiguous to defendant at the time of the passage of the ordinance and that the judgment order was also wrong because it was incumbent upon plaintiff to file a reply to the justification pleaded by the defendant and in the absence of said reply the justification should stand as admitted and the judgment should therefore be in favor of defendant.

The court overruled the defendant’s post-trial motion and the defendant appealed.

Defendant on this appeal does not contend that the territory sought to be annexed is contiguous to defendant, but only that judgment should have been entered in its favor in the trial court because plaintiff did not reply to defendant’s purported justification. In other words, it argues that its answer, which did not set out the terms of the ordinance and which only recited that the ordinance had been duly adopted and approved, must be accepted as conclusive proof that the purported annexation was valid even though the record shows that the annexation did not comply with the statute.

This argument ignores defendant’s own duties under the quo warranto statute which required it to not only plead and prove its own official acts by which the annexation was effected, but also to plead and prove by affirmative evidence that all of the circumstances imposed by the statute under which it purported to annex the territory in question were present. Chapter 112, § 11, Ill Rev Stats; People v. City of Peoria, 80 Ill App2d 359, 225 NE2d 48; People ex rel. Cooney v. City of Peoria, 166 Ill 517, 46 NE 1075.

Although section 11 of the quo warranto statute provides: “The plaintiff may reply to the answer,” it does not say under what circumstances, if any, a reply is required. Certainly a reply is not required in this case where the defendant has not attempted to plead the facts necessary to justify the lawful authority to the right claimed as required by the quo warranto statute.

For the foregoing reasons, the judgment of the trial court of St. Clair County is affirmed.

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.