text:
    STALEY EMPLOYEE CREDIT UNION, Plaintiff-Appellant, v. RALPH H. CHRISTIE et al., Defendants-Appellees.
    Fourth District
    No. 4—82—0394
    Opinion filed December 13, 1982.
    Welsh, Kehart, Shatter & Hughes, P.C., of Decatur (Charles C. Hughes and A. G. Webber, IV, of counsel), for appellant.
    Gregory A. Mattingley, of Brown, Hawkins, Basola & Mattingley, of Decatur, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

On October 15, 1981, plaintiff, Staley Employee Credit Union, filed a small claim complaint in the circuit court of Macon County against defendants, Ralph H. and Donna Christie. Plaintiff sought a judgment against defendants on a promissory note for (1) the amount owing on the note after deducting the proceeds of sales of chattels standing as security for the loan, and (2) attorney fees. In opposition, defendants maintained: (1) plaintiff was not entitled to any deficiency judgments because plaintiff had not given them notice of the ultimate sale of the collateral as required by section 9 — 504(3) of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 9—504(3)); and (2) because of plaintiff’s failure to give notice, defendants were entitled to damages under section 9 — 507(1) of the Code (Ill. Rev. Stat. 1979, ch. 26, par. 9—507(1)). The trial court agreed with defendants and entered judgment on May 26, 1982, denying plaintiff the recovery it sought and awarding defendants damages in the sum of $2,647.38 and costs. We affirm.

On appeal, plaintiff maintains it gave proper notice of sale and, even if it did not do so, it should not be denied the benefit of a deficiency judgment because a very satisfactory price was obtained on the sale, and defendants were not damaged by lack of notice.

We examine first the question of the sufficiency of the notice of sale because, unless plaintiff failed in that respect, it was admittedly entitled to prevail. Section 9 — 504(3) provides that a creditor may sell collateral by “public or private proceedings” at times, places and on terms determined by the creditor as long as they are “commercially reasonable.” The section further states that, unless the collateral is of a type not applicable here,

“reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale. In the case of consumer goods no other notification need be sent.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 26, par. 9-504(3).

Originally, plaintiff proposed to sell the collateral at its place of business on June 17, 1981, at 9 a.m. By the terms of the notice, bidders were permitted to submit bids in writing to plaintiff at its office on or before that date. These bids were not to be sealed, and persons appearing at the sale were to be permitted to bid competitively against those bids. The sale was to be a public sale within the meaning of section 9 — 504(3) of the Code. (See Ill. Ann. Stat., ch. 26, par. 9—504(3), Illinois Code Comment, at 342 (Smith-Hurd 1974); 47 Am. Jur. 2d Judicial Sales sec. 103 (1969).) At the time of the sale, only one bid was submitted for each of the two chattels standing as collateral, $500 for a truck and $3,000 for a Cougar automobile. Because of the low price of these bids, plaintiff rejected them. Defendants did not appear at this sale, nor did they contact plaintiff’s agents concerning the sale. Plaintiff then posted notices on the bulletin boards of the A. E. Staley Manufacturing Company plant at Decatur requesting further bids for the vehicles and had similar notices published in the Decatur Herald and Review and the A. E. Staley newspaper. No further notices were sent to defendants. On June 29, 1981, a bid of $3,850 was received for the Cougar automobile, and it was accepted by plaintiff. On June 30, 1981, a bid of $1,200 was received for the truck and accepted. Although the manner of receiving bids for these later sales was not made entirely clear by the stipulated statement of the testimony, the sale appeared to be private in nature.

We passed upon a somewhat similar question of the adequacy of notice of sale required by section 9 — 504(3) in Spillers v. First National Bank (1980), 81 Ill. App. 3d 199, 400 N.E.2d 1057. There, a creditor repossessed collateral and later notified the debtor that it had a bid of $15,000 for a crane, which was one of the items of collateral, and stated the crane would be sold 10 days after the debtor’s receipt of the notice. The debtor then received an offer of $16,000 for the crane through a corporation owned by him. The creditor responded by imposing three conditions upon the sale for $16,000. The debtor did not respond, and the creditor then made the $15,000 sale to the original prospective purchaser. No notice was given to the debtor of the creditor’s subsequent intention to make the sale originally proposed. We held the notice to be faulty, reasoning that the sale finally made was not the same one originally contemplated. We stated, “The word ‘any’ as used in section 9 — 504(3), when referring to private sales, has the clear meaning of ‘all and every.’ ” 81 Ill. App. 3d 199, 204, 400 N.E.2d 1057, 1060.

Here, the evidence indicates the plaintiff was very careful to see that the best possible sale of the chattels was made. Acceptance of the bids at the original public sale for which full notice was given would appear to have been commercially reasonable. However, plaintiff wisely chose not to accept the bids but to attempt to do better, and they did so. The evidence indicated that the bids finally accepted were very good ones. Nevertheless, the sales eventually made were not the sale for which defendants were given notice. Notice of a public sale to take place on June 17, 1981, at 9 a.m. at a particular place is not notice “of the time after which a private sale or other intended disposition is to be made.” Even if we consider the sales actually made to have been public in nature, the notice requirement is not cured. Notification of a public sale to take place on June 17, 1981, at 9 a.m. is not notice “of the time and place” of a public sale occurring on June 29 or June 30,1981.

Plaintiff’s argument that the notice given here was reasonable and adequate finds some support in the case of Contois Motor Co. v. Saltz (1977), 198 Neb. 455, 253 N.W.2d 290, and Bondurant v. Beard Equipment Co. (Fla. App. 1977), 345 So. 2d 806. Plaintiff’s good faith and effective effort to maximize the amount realized for the collateral, and defendants’ lack of interest in the sale and apparent lack of injury by not receiving further notice, create the temptation to uphold the notice given. But, the purpose of the Code, which enables a debtor to protect his interest in the property by finding a buyer or by being present to bid (Lake Shore National Bank v. McCann (1979), 78 Ill. App. 3d 580, 396 N.E.2d 1301), would not be protected thereby.

Having held the notice to defendants to have been insufficient, we turn to the question of the consequences of that insufficiency. In Spillers and Stensel v. Stensel (1978), 63 Ill, App. 3d 639, 380 N.E.2d 526, we held that the failure to .give proper notice' of sale barred entry of a deficiency judgment. We are aware that our holding in those cases is inconsistent with that in decisions of the appellate court of this State. (National Boulevard Bank v. Jackson (1981), 92 Ill. App. 3d 928, 416 N.E.2d 358; Lake Shore National Bank; National Republic Bank v. Proctor (1978), 66 Ill. App. 3d 534, 383 N.E.2d 1310; Commercial Discount Corp. v. Bayer (1978), 57 Ill. App. 3d 295, 372 N.E.2d 926.) In Lake Shore National Bank, the court deemed the proper rule to be that a failure to give proper notice raises a presumption that the value of the secured collateral was equivalent to the debt. The creditor then had the burden of rebutting that presumption and proving the sale to have been commercially reasonable. That is a sanction that might work satisfactorily in many cases, but value is a relatively conjectural matter. A debtor with proper notice may, on occasion, be able to produce a buyer who will give more for a chattel than its value would appear to be. The requirement to “send” notice to a debtor is not difficult to comply with. We must reject plaintiff’s request to overrule Spillers and Stensel.

In Spillers, we held the sale in question to have been made without proper notice and also to have been unreasonable from a commercial standpoint. We noted the interrelationship of the two concepts but held that the failure of notice was, of itself, sufficient to require denial of a deficiency judgment. Thus, the fact that the sales here were fully reasonable from every commercial aspect except that of notice does not give life to plaintiff’s claim for a deficiency judgment.

In Spillers, the debtor sought compensation for actual damages under section 9 — 507(1) of the Code (Ill. Rev. Stat. 1977, ch. 26, par. 9—507(1)). That section states that a debtor may recover “any loss caused by a failure to comply” with article 9 of the Code. We held that, because the deficiency had been wiped out, the damages would be only the amount that the proper valuation of the chattel was in excess of the total debt. Had defendants been limited to actual damages here, that rule would have applied. However, the parties agree that the collateral here was “consumer goods” within the meaning of section 9 — 507(1) which states that, if the requirements of article 9 of the Code have not been complied with and “the collateral is consumer goods,” the debtor has a right to recover at least an amount of the credit charge plus 10% of the principal of the debt or “the time price differential plus 10% of the cash price.” Plaintiff does not dispute that, if defendants were entitled to recover under this provision, the damages were accurately computed. In Spillers, we held the remedy of section 9 — 507(1) to be cumulative to the remedy of denial of deficiency judgment although the debtor could only have an actual recovery when the actual value of the collateral exceeded the total debt. Here, where the minimum recovery is stated as a matter of right, the portion of the deficiency which would have existed even if full value were obtained for the collateral cannot be used to diminish the recovery by the debtor.

Our affirmance is for the reasons stated.

Affirmed.

MILLS and LEWIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LEWIS

license: Public Domain

text:
    MINNIE LEE HUNTER, Plaintiff-Appellant, v. DR. FRED SUKKAR, Defendant-Appellee.
    Fourth District
    No. 4—82—0054
    Opinion filed December 15, 1982.

      John Gadau, of Zimmerly, Gadau, Stout, Selin & Otto, of Champaign, and James D. Koerber, law student, for appellant.
    Richard F. Record, Jr., of Craig & Craig, of Mattoon, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

Plaintiff filed a complaint against Dr. Fred Sukkar alleging negligence in post-operative care which defendant provided her. The case was heard before a jury in Champaign county circuit court and a verdict was returned in favor of the defendant. Plaintiff’s post-trial motion for a new trial was denied. Plaintiff claims error by the trial court on several rulings made during the course of the trial and seeks a new trial.

We affirm.

The issues raised here require only a brief summary of the facts presented at trial. Plaintiff’s forearm was severely injured on March 19, 1977. On March 22, 1977, defendant operated on the arm and thereafter continued treatment. Defendant used a surgical technique known as ASIF. It involves using metal plates and screws to join together and promote the healing of bone fractures. The technique was developed in Switzerland and the standards for its use are of a universal character. Plaintiff’s arm failed to heal properly, which necessitated a further operation which was performed by defendant. When the arm still failed to heal, plaintiff had a third operation which was done by another physician.

Plaintiff apparently did not claim negligence in the surgery itself, but rather maintained defendant was negligent in his instructions and warnings to plaintiff regarding her returning to work and using the injured arm. Defendant’s failure to sufficiently instruct plaintiff allegedly led to the overuse of the arm and its failure to heal properly. Plaintiff called Dr. David L. Becker of Milwaukee, Wisconsin, as an expert witness. Becker testified that he is an orthopedic surgeon licensed to practice in Wisconsin since 1969. He is engaged in a group practice. He had never seen plaintiff before trial. He admitted that his evaluation and testimony regarding defendant’s care of plaintiff’s injury was done for remuneration. Prior to the present case, Becker had testified in one previous trial. However, he had done other evaluations and given evidence depositions for both plaintiffs and defendants. Between 1976 and 1980, Becker gave between 30 and 50 such consulting opinions. Becker’s testimony was based on national standards for the use of the ASIF technique. In his opinion, based on such national standards, the warnings and instructions given by defendant to plaintiff regarding the use of her arm were inadequate.

During defendant’s closing arguments, the following exchange took place:

“Dr. Becker and Mr. Gadau say this surgery met the standards yet it wasn’t very good. They also say it wasn’t very good yet it would have worked if there wasn’t activity by Mrs. Hunter. They work it both ways because in doing so — and Dr. Becker has an interest in doing so and persuaded to the Plaintiff’s—
MR. GADAU: I object. There’s no evidence that Dr. Becker has any interest in this litigation.
THE COURT: That’s overruled. That’s a fair statement.” (Emphasis added.)

Defense counsel then continued his closing argument in which course he made the following statements to which plaintiff raised no objections:

“Mrs. Hunter and Dr. Sukkar are bias[ed], interested witnesses. They think they’re right. So you take that into account when you listen to them.
I suggest to you that Dr. Becker is bias and interested in this case. Dr. Becker is a professional witness. Dr. Beckef testifies all the time. He said I’ve only testified in court once before today. He has given numerous evidence depositions. *** So Dr. Becker testifies frequently. He said, when asked him, if it wasn’t true from 1976 to January of 1980, a period of more than three and a half years, four years, he had 30 to 50 consultations, but he wanted to be sure that I understood not just in Illinois; that takes him outside. How much does that man practice orthopedics'1. He is actively engaged in appearing before jurys, and I suggest to you that the other doctor in this case, Dr. Bussey, who spends all of his time practicing orthopedics, who doesn’t travel here and there and I don’t know where to testify, is a person who doesn’t have an interest other than that he wants to say what his opinions are to you and he did. *** I suggest that you discount and disregard Dr. Becker’s testimony. He is a hired gun and he is not worthy of your credit. ” (Emphasis added.)

On appeal, plaintiff objects to those portions of the above comments to which emphasis has been added and contends they are so improper and prejudicial that plaintiff was denied a fair trial.

“Counsel in the case are officers of the court and owe a duty to the court, to opposing counsel, to the cause of justice and to themselves.” (Eizerman v. Behn (1956), 9 Ill. App. 2d 263, 286, 132 N.E.2d 788, 799.) “The purpose of a closing argument is to assist the jury in arriving at a verdict, with all facts presented fairly. Considerable latitude of expression on anything that is in evidence must be allowed counsel.” (Hopwood v. Thomas Hoist Co. (1966), 71 Ill. App. 2d 434, 443, 219 N.E.2d 76, 81.) “The closing arguments of counsel must be confined to those matters that are in evidence or admitted and uncontroverted.” (Foerster v. Illinois Bell Telephone Co. (1974), 20 Ill. App. 3d 656, 661, 315 N.E.2d 63, 67.) “It is not improper for an attorney to question either the credibility or judgment of a witness upon any legitimate ground, but an attorney has no right to indulge in violent or inflammatory language for the purpose of arousing the prejudice and passions of the jury nor to insult or abuse a witness without cause. [Citation.]” Regan v. Vizza (1978), 65 Ill. App. 3d 50, 53, 382 N.E.2d 409, 411.

Examining the first alleged prejudicial comment, and the ruling upon objection, we agree that the trial court’s statement would have been better formulated if it had said, “that’s a fair comment” rather than “fair statement” since there is some implication in the latter that the court agreed with counsel’s assessment. However, we find the language ambiguous, and the error, if any, was de minimis.

We also find that the substance of the trial court’s ruling was correct.

“It is, of course, perfectly proper to comment on the interest that a witness may have in a proceeding, to discuss his compensation, but it is not proper to exceed in argument that which was introduced as evidence or that which is a reasonable inference from the proper evidence. [Citations.]” (Department of Public Works & Buildings v. Anastoplo (1958), 14 Ill. 2d 216, 222, 151 N.E.2d 337, 341.)

Illinois court have taken a dim view of counsel impunging the integrity of physicians testifying as expert witnesses. See Mattice v. Klawans (1924), 312 Ill. 299, 143 N.E. 866; Walsh v. Chicago Rys. Co. (1922), 303 Ill. 339, 135 N.E. 709; Ryan v. Monson (1961), 33 Ill. App. 2d 406,179 N.E.2d 449.

The evidence at trial established that Dr. Becker was a medical expert testifying at the behest of plaintiff and received compensation for that testimony. While inartfully worded, the context of the objected to, incomplete remark suggests that defense counsel was only calling the jury’s attention to the fact that the witness was potentially biased because he was procured and compensated by defendant. The remark was not improper. Anastoplo.

The balance of the alleged prejudicial remarks occurred six pages later in the transcript and were received without objection. Generally, alleged error in closing arguments to the jury will not be considered on appeal in the absence of a ruling by the trial court as to the propriety of the argument. (Anastoplo.) Plaintiff maintains that her only objection and the trial court’s ruling went to all of the alleged inflammatory and prejudicial remarks and that further objections were not necessary and would only have served to prejudice the jury. Since the balance of the remarks must have taken place several minutes after the first objection, and since we find them to be of a different nature than that to which the objection was made, we conclude that counsel had an obligation to raise a new objection.

In the alternative, plaintiff argues that the unobjected-to remarks were so inflammatory and prejudicial that they constitute plain error. If the argument of counsel is seriously prejudicial, the trial court has a duty to inject itself into the proceeding sufficiently to insure that the litigants receive a fair trial. (Belfield v. Coop (1956), 8 Ill. 2d 293, 312, 134 N.E.2d 249, 259; Paulsen v. Gateway Transportation Co. (1969), 114 Ill. App. 2d 241, 247, 252 N.E.2d 406, 409; Rudolph v. City of Chicago (1954), 2 Ill. App. 2d 370, 377,119 N.E.2d 528, 531.

“[I]f prejudicial arguments are made without objection of counsel or interference of the trial court to the extent that the parties litigant cannot receive a fair trial and the judicial process cannot stand without deterioration, then upon review this court may consider assignments of error although no objection was made and no ruling was made or preserved thereon. [Citation.]” City of Quincy v. V. E. Best Plumbing & Heating Supply Co. (1959), 17 Ill. 2d 570, 577, 162 N.E.2d 373, 378.

Plaintiff has compared the closing remarks she objects to here •with those in three other Illinois cases where a new trial was ordered because of prejudicial remarks. In Regan v. Vizza (1978), 65 Ill. App. 3d 50, 382 N.E.2d 409, plaintiff’s medical expert was a physician who worked at the hospital where plaintiff sought medical attention and was recommended to plaintiff by the emergency care physician. The physician had previously testified for other plaintiffs. He was compared to “a hired gun in the old west” and a parallel was suggested between the TV character in “Have Gun Will Travel" and the doctor who has “medical testimony will travel.” In Cecil v. Gibson (1976), 37 Ill. App. 3d 710, 711, 346 N.E.2d 448, 449, plaintiff’s attorney was described as a: “slick attorney from Chicago,” “a slick hired-hand,” he “manufactured evidence,” had a “wild imagination,” was not worthy of the jury’s trust, and was compared to a captain of a ship in piloting testimony from the expert witnesses. Plaintiff’s medical expert was described as: “a sidekick, “a right-hand man,” a “professional witness” who carried a “shiny black leather bag” containing instruments that “have never been used.” The relationship between plaintiff’s attorney and the witness was likened to that of the Cisco Kid and Pancho or Matt Dillon and Chester. In Paulsen, defense counsel was referred to as a man who “played fast and loose with the facts in this case” and who tried to “change the facts by trickery.” Several other paragraphs of belittling diatribe were aimed at counsel. In Regan, timely objections were made to each prejudicial comment, in Paulsen the only objection made was overruled, and in Cecil, objections, or lack thereof, were not discussed.

These remarks which plaintiff objects to for the first time on appeal were clearly improper. Counsel went beyond merely noting Dr. Becker’s compensation and its implication as to his credibility, to suggesting that he was “a professional witness,” had no time to practice medicine, and was “a hired gun.” Dr. Becker testified that he gave 30 to 50 medical consultations over a four-year period and that he was engaged in a group practice. There was no contrary testimony. Counsel’s assertions were not supported by the evidence and were not proper. (See Ryon v. Javior (1979), 69 Ill. App. 3d 946, 954, 387 N.E.2d 936, 942; see also Principato v. Rudd (1981), 102 Ill. App. 3d 362, 367, 430 N.E.2d 63, 66; Regan.) Furthermore, Illinois courts do not favor counsel referring to physicians who testify as medical experts with such pejorative terms as “hired guns.” Mattice; Walsh; Principato; Regan; Cecil.

However, we find that the comments here do not reach the level of abusiveness and prejudice found in the above cases. There were no drawn-out insulting characterizations as in Regan, and no attacks on opposing counsel, no allegations of an illegitimate relationship between counsel and the expert witness, and no personally abusive comments as in Paulsen and Cecil. Also, as the trial court commented at the post-trial motion hearing:

“The court believes that a jury — If there is any evidence in the record supporting such argument, is sophisticated sufficiently so that such references to an expert witness in [the absence of] objections thereto, are not so prejudicial as to affect the outcome of the case, and that is the opinion of the Court in this case that the remarks did not affect the outcome of the case. In other words, did not constitute reversible error.”

From our examination of the record we conclude, as did plaintiff in her brief, that the trial result hinged largely on the jury’s assessment of the credibility of defendant and plaintiff. The testimony of plaintiff’s medical expert was not critical and if it was discounted by the jury it was because of the contrary testimony given by defendant’s expert witness. Therefore, while we find that the alleged prejudicial comments were improper, we cannot say that the judicial process deteriorated therefrom to the point that plaintiff did not receive a fair trial.

Plaintiff also claims error in the instructions the jury received on the standard of care required of defendant in applying the ASIF surgical technique. The two instructions given were Illinois Pattern Jury Instructions, Civil, Nos. 105.01 and 105.02 (2d ed. 1971) (hereinafter cited as IPI Civil). Instruction No. 105.02 requires the use of “skill and care which reasonable well-qualified specialists in the same field, practicing in the same locality, or in similar localities, ordinarily would use in similar cases and circumstances.” Plaintiff’s tendered substitute instruction, which was rejected, omitted “practicing in the same locality, or in similar localities” (known as the “community standard”), and the entire following sentence: “A failure to do so is a form of negligence called malpractice.”

Applicable IPI instructions shall be used unless they do not accurately state the law. (87 Ill. 2d R. 239(a).) Plaintiff maintains that since ASIF is of international origin and standards, the community standard was not applicable and the instruction to the jury was prejudicial. The “community standard” measure of care has long been the law of this State. (Schireson v. Walsh (1933), 354 Ill. 40, 55-57, 187 N.E. 921, 927; Bacon v. Walsh (1913), 184 Ill. App. 377.) We have not been directed to any Illinois case law which departs from the community standard, although there are occasions when it may be supplemented. (See Darling v. Charleston Community Memorial Hospital (1964), 50 Ill. App. 2d 253, 333, 200 N.E.2d 149, 189, affd (1965), 33 Ill. 2d 326, 211 N.E.2d 253.) Rather, plaintiff argues that in modern medicine, at least in respect to specialists, there are no longer geographical distinctions in the standard of care to be applied. See 2 J. Dooley, Modern Tort Law sec. 34.44, at 431 (1977).

In the comment to IPI Civil No. 105.02 “Duty of Specialist,” it is noted that the instruction is drafted to implement the “general rule” in the United States that “[a] doctor who holds himself out as a specialist in a particular branch of medicine is under a duty to possess and apply the knowledge, and to use the skill and care which reasonably well-qualified specialists practicing in the same branch of medicine have and use.” (IPI Civil No. 105.02, Comment, at 322 (2d ed. 1971).) Therefore, if only international (or national) standards exist for the use of ASIF, then there will be no variance in standards among communities. In such situations, the “community standard” language becomes irrelevant, but hardly prejudicial to plaintiff. Indeed, in the comment to IPI Civil No. 105.01, the drafters noted the limited effect of the “community standard” in the context of modern medicine. IPI Civil No. 105.01, Comment, at 320 (2d ed 1971).

Plaintiff claims prejudice because defendant’s expert was from the same community as defendant, and therefor the community standard language in the jury instruction tended to give extra weight to his testimony. However, both experts here testified that their opinions were predicated on “national” standards. Thus, while in the light of modern medical practice the supreme court may want to reconsider the appropriateness of the “community standard” in determining the level of care expected of medical specialists, we find that the instructions here were proper as given, and defendant was not prejudiced thereby.

Finally, plaintiff claims error in the verdict forms given to the jury. Two forms were used, IPI Civil Nos. A45.05 and A45.06, with a slight modification in the latter which is irrelevant here. Plaintiff submitted IPI Civil No. A45.09, which the trial court rejected, as a third verdict form.

Again, applicable IPI instructions shall be used unless they do not accurately state the law. (87 Ill. 2d R. 239(a).) The adoption of comparative negligence in Illinois (Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886) made necessary the drafting of jury instructions incorporating the principles enunciated in Alvis. The present case is apparently the first occasion a reviewing court has had to consider the propriety of the revised verdict forms. In Alvis, the supreme court expressed the belief “that the use of special verdicts and special interrogatories will serve as a guide to assist the jury in its deliberations.” 85 Ill. 2d 1, 28, 421 N.E.2d 886, 898.

The drafters accommodated the supreme court and in the introduction to the new comparative negligence instructions it was said:

“While the Committee believes the form of general verdict presently in use is still appropriate (A45.09), it has drafted, as an alternative, a ‘Modified General Verdict’ Form (A45.06), to meet this suggestion of the Court.” (Emphasis added.) (Illinois Pattern Jury Instructions, Civil, Introduction, at 5 (1981 supp.).)

The comment to IPI Civil No. A45.06 states in part:

“This modified form of general verdict should be used in cases where the court is desirous of learning the percentage of negligence attributed by the jury to the plaintiff. In all other cases the traditional form of general verdict may be used, IPI A45.09.” (IPI Civil No. A45.06, Comment, at 38 (1981 Supp.).)

The trial court here elected to give the modified general verdict form (A45.06) and not the traditional general verdict form (A45.09) in accordance -with the IPI comment.

Plaintiff contends that the traditional general verdict form should have been given as a third verdict form in order to provide the jury with the alternative of finding for the defendant without considering a comparative negligence computation. Verdict forms must be drawn to insure that they cover every possible finding under the evidence from the viewpoint of all parties. In re Estate of Payton (1979), 79 Ill. App. 3d 732, 398 N.E.2d 977; Eggimann v. Wise (1963), 41 Ill. App. 2d 471, 191 N.E.2d 425.

The beginning of IPI Civil No. A45.06 reads, “We, the jury, find for the plaintiff and against all of the defendants) and further find the following:” and there follows three sections. In the first part, plaintiff’s damages are assessed without considering “damages due to the negligence of the plaintiff, if any.” (Emphasis added.) In the second, the jury is to assess" “the percentage of negligence that was a proximate cause of plaintiff’s [injury] [or] [damage] attributable solely to the plaintiff.” Finally, the jury uses the first two results to determine plaintiff’s recoverable damages.

Plaintiff contends that the wording of the second part of the form leaves the jury with the impression that they must find that plaintiff was guilty of some negligence. Also, in the facts here, since the verdict hinged on the credibility of the two parties, any implication tending to favor one party would bring about a total verdict in that party’s favor. The complained-of verdict form begins just like the traditional verdict form with the jury finding for the plaintiff and against the defendant and then there are added the special findings. The first section refers to “negligence of the plaintiff, if any.” Finally, there is nothing in the second section which precludes the jury from finding that zero (or anything that implies that a positive number must be found) percent of the negligence that was a proximate cause of plaintiff’s injury is attributable solely to the plaintiff. We do not believe a jury considering this form would perceive any inference that would impel them to turn to the general verdict form finding for defendant. We find the giving of IPI Civil No. A45.06 appropriate whenever negligence on the part of the plaintiff is in issue, and there is no need to give IPI Civil No. A45.09.

Affirmed.

MILLS and GREEN, JJ., concur.


author: JUSTICE MILLS

text:
    HENRY ZIMMERMAN, Plaintiff-Appellant and Cross-Appellee, v. CLEO BIRDGE, Defendant-Appellee and Cross-Appellant.—(Birdge-Zimmerman, Inc., Defendant.)
    Fourth District
    No. 4—82—0073
    Opinion filed December 13, 1982.

      James Kuehl, of Merriman, Finch & Kuehl, of Urbana, for appellant.
    Ted Crewell, of Pelini, Crewell & Sheffler, of Urbana, for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

This suit for accounting involves a stipulation between the litigants as to procedure in the trial court.

(And we note initially that stipulations are not only favored, but are to be encouraged.)

Henry Zimmerman and Cleo Birdge each owned 50% of the outstanding shares of Birdge-Zimmerman, Inc. Zimmerman sued for an accounting and also alleged several other theories of Birdge’s liability.

By stipulation of the parties, the accounting action was tried first by the court without a jury. The remaining issues were to be tried by a jury if they were not found to be res judicata by virtue of the accounting judgment. The court’s judgment order on the accounting issues found that no further issues were left for trial.

Plaintiff appeals, arguing that certain findings of the court on the accounting action were against the manifest weight of the evidence, and urging this court to enforce the stipulation by remanding for trial on the remaining issues. Defendant Birdge cross-appealed but moved in his brief for voluntary dismissal. There being no objection, the cross-appeal is dismissed.

We affirm on the accounting action and remand.

FACTS

Zimmerman and Birdge formed the corporation, chartered in 1969, by combining the meat locker plant owned by Zimmerman "with a portion of Birdge’s cattle-raising operation. Birdge already operated a 300-acre farm with a feeder lot and deeded two acres of this land along with two Harvestore silos to the corporation. He was to build— and did build — a modern confinement type feeder lot for corporation use on this property. Zimmerman deeded the locker plant to the corporation.

As a shareholder, Zimmerman filed a five-count complaint on May 11, 1976, alleging that Birdge: (1) was a director and president of the corporation? (2) exercised responsibility for operation of the feed lot owned and maintained by the corporation; and (3) had a fiduciary duty to the corporation, as president and director, to act in the best interests of the corporation and to refrain from converting corporate assets to his own use. It was alleged that this fiduciary duty was violated by several actions itemized in the complaint, including conversion of 66 bulls and feed supplies. It was further alleged that, as a director and president of the corporation, defendant was in the position of a trustee toward the plaintiff as beneficiary and that plaintiff was entitled to rely on Birdge to conduct himself and discharge his duties and obligations accordingly. In more specific allegations, it was stated that Birdge failed to comply with a leasing agreement between the shareholders and the corporation and that Zimmerman was compelled to personally assume certain corporation debts to prevent foreclosure against corporation assets.

A bench trial on the accounting issue was held beginning November 2, 1981. Prior to the taking of evidence, the court noted a stipulation as to the use of a report by Elizabeth Curzon. This report was an audit of the corporation from its inception to December 31, 1972, constructed from the business and banking records of the corporation (such as they were) made available to her. The parties stipulated that the report should be admitted into evidence and that the figures stated in the report were to be accepted as a true and accurate accounting except to the extent that any figure in the report was impeached, altered or supplemented by competent evidence. The effect of this stipulation, as noted by the trial court, was to put the burden of proving any inaccuracy in the report on the party asserting such inaccuracy. The parties had also stipulated that the court should treat December 31, 1972, as the closing date for corporate operations, but plaintiff would introduce evidence to show the parties entered a lease agreement with the corporation in March of 1973 and, should the court find that there was such an agreement, this should be taken into account.

Elizabeth Curzon testified that she was hired by the attorneys to perform an audit of the corporation but that it was impossible to verify all of the records. Due to the passage of time, she was unable to verify beginning assets and liabilities and it was very difficult to confirm the ending assets and liabilities. The funds of Zimmerman and the corporation were commingled and there was no general ledger kept by the corporation. She had to reconstruct bank records from the bank account, but a complete reconstruction was not possible.

The court found that: The business terminated on December 31, 1972, there was no lease agreement reached between the parties in March of 1973; and the corporation accounting prepared by Curzon was confirmed as the corporation accounting except for two changes. Those exceptions were that (1) defendant was required to account to plaintiff for 26 cattle by paying to plaintiff $3,770, and that (2) defendant was required to account to plaintiff for 30 bulls sold for $10,443.49, by paying to plaintiff one-half such amount.

MANIFEST WEIGHT

Plaintiff’s brief is a rather rambling mixture of narrative and uncertain argument which fails to unravel which findings of the trial court are challenged on appeal or construe the relevance of the findings to the ultimate disposition of the case. However, it is requested that this court find a certain 66 cattle were sold between July and November of 1972, that the “cattle record” book maintained by Birdge is an unreliable record, and that the parties entered into a lease agreement in March of 1973.

Regarding the time of sale of the 66 cattle, the trial court did, in fact, find that the 66 cattle were sold between July and November of 1972. Defendant made a judicial admission of this fact by his answer to plaintiff’s complaint. (Regan v. Berent (1945), 392 Ill. 376, 64 N.E.2d 483.) The trial court noted this in its able memorandum of decision and also noted evidence that coincided with these admissions. Although the court stated that it appeared the cattle were sold prior to January 1, 1973, we do not interpret this as incongruous with the admission. As noted earlier, the parties stipulated that the court should treat December 31, 1972, as the closing date for court operations. It appears the latter statement was made as a prologue to the conclusion that the sales were corporate transactions, rather than personal transactions. Since they were corporate transactions, and 30 of the cattle were unaccounted for, the court ordered Birdge to pay plaintiff one-half of the selling price of these 30 cattle.

We are uncertain of the entire relevancy which plaintiff attaches to the factual finding that the cattle were sold before November 1972. However, the date of sale is used by plaintiff in a somewhat vague argument to support a challenge to the finding that 14 cattle, which were purchased with the 66 cattle in a lot of 80, died. The varied arguments against this finding hinge on the assertion that the records show the cattle died on December 4, 1972. However, the entry recording the deaths is directly above another entry dated December 4 and after an entry of June 30. It is by no means apparent that the entry is supposed to reflect the death of 14 bulls on December 4. Therefore, all of the arguments which challenge this finding must fail.

Zimmerman next urges this court to find that the cattle record book maintained by Birdge was unreliable. Curzon relied upon entries in the cattle record book for the inclusion of two specifically challenged items in her report: the death of the 14 bulls and a credit to defendant of 242 cattle weighing 240,000 pounds which the book reflects were transferred from Birdge’s personal stock to the corporation. Plaintiff asserts that the cattle record book was shown to be unreliable since it was testified that certain portions of it were reconstructed, the book was pointed out to be in error in two other instances by Elizabeth Curzon, and there was testimony that if the records were accurate the feed used should have produced approximately 30% to 40% more weight gain than shown by the record.

As already discussed, plaintiff has failed to make any persuasive argument impeaching the entry recording the deaths of 14 bulls. Although a document examiner testified that pages 7 through 10 of the cattle record book were reconstructed, and the deaths of the 14 bulls were recorded on those pages, the trial court found this testimony to be of little probative value and we note that there was no direct evidence that the entries were inaccurate.

Stanley Butt, who had previously run his own cattle-raising operation, testified that from the weight gains and feed used, as shown by the cattle record books, it was hard to imagine that certain cattle sold in December and January had the poor weight gain reflected by the records. This was merely opinion testimony constituting tenuous circumstantial evidence which was impeached on cross-examination by Butt’s admission that he did not factor into his calculations feed consumed by cattle that were sick and/or had died. A veterinarian had testified that he had seen cattle with shipping fever (a respiratory disease) on Birdge’s farm in 1971 and 1972. He had also seen dead cattle on Birdge’s farm. Butt admitted that sick cattle would not be expected to gain as much weight as healthy cattle.

Finally, we do not believe that the fact that the cattle record book was in error in two specific instances requires a finding that the book is generally unreliable. Plaintiff has been able to produce only circumstantial evidence and innuendos that something was wrong somewhere, but he has failed to produce sufficient evidence to justify a finding that it was against the manifest weight of the evidence to rely on the cattle record book.

Plaintiff has specifically addressed himself to the entry regarding the 242 cattle, asserting that its inaccuracy is indicated by what appears to be an estimated weight, and Curzon was unable to confirm that she had checked certain scale tickets against the cattle record book entry. However, we note that defendant testified he weighed these 242 cattle. Although Curzon was unable to confirm that she had specifically cross-checked the scale tickets against this entry, she testified that she had had the scale tickets for the 242 cattle when doing her audit. Plaintiff’s attempt to impeach this particular entry was insufficient.

Zimmerman’s next argument is that the manifest weight of the evidence shows the parties made an agreement in or about March of 1973 regarding leasing of corporate assets. It was undisputed that there was a meeting between the parties with their accountant and attorney present. There was also a representative from Production Credit Association (PCA) which had made loans to the corporation. The meeting was to discuss financial burdens of the corporation and attempt to solve them. Plaintiff testified that he understood a certain agreement had been reached at the meeting whereby plaintiff and defendant would each pay certain monies per month as rent to the corporation and this money would in turn be paid to the PCA. Plaintiff stated that the attorney was to reduce the terms discussed at the meeting to writing. A lease agreement was in fact prepared by the attorney, but was not signed by either party. Defendant contends that there was no agreement, noting that the written instrument was never signed.

There is also testimony as to a subsequent meeting resulting in a loan agreement with terms to repay PCA, the agreement being signed by both plaintiff and defendant. The terms of this loan agreement were not the same as the alleged lease agreement. In response to a question as to whether anything in regard to the alleged lease agreement had been changed by the subsequent PCA meeting, plaintiff testified that he was so confused he really did not know what was going on. He also stated that he did not believe the second agreement modified the earlier lease plan.

The trial court found that it could not conclude there was an agreement on the confused memory of one party to the alleged agreement. The court noted that, in view of the manner in which the parties handled the corporate business and records, it was reasonable to believe there was considerable confusion and no actual agreement. We do not believe this finding is against the manifest weight of the evidence.

We are also requested to find that Birdge’s testimony was generally unbelievable such that any finding based upon his testimony cannot stand. Birdge points out it is axiomatic that the determination of credibility is a function for the trier of fact. Zimmerman responds that Birdge’s evidence and assertions are so incredible as to clearly reveal their unreliability, rendering the demeanor of the witnesses a mere minor detail in judging credibility.

There is no need to create any exception to the general rule. If defendant’s evidence and assertions are so contradictory and unbelievable, then findings based on that evidence should be found to be against the manifest weight of the evidence. We do not find the evidence to be of such character. Rather, we believe the following comments from the trial court’s memorandum of decision are fair reflections on the general nature of the evidence indicating justified assessment of the credibility of the parties:

“The evidence is in considerable conflict and, as the parties indicate by their testimony, is most confusing. Exact computation of amounts of receipts, expenses and inventory is virtually impossible. The cause of this uncertainty rests primarily with the records kept, or not kept, by the parties.
* * *
I found nothing in the manner and demeanor of the parties to indicate either party was testifying falsely. On the contrary, the testimony of each was consistent with their record-keeping and business practices as a corporation: incomplete, informal, confused and lax.
* * *
Defendant appeared stubborn at times, and both parties confused, but this is consistent with how they managed the corporate business and the fact that so many years have passed since the occurrences in question.”

Once again, we note that in accordance with the parties’ stipulation regarding use of the Curzon report, the burden of proof was on the party attempting to impeach the Curzon report with competent evidence. Plaintiff’s evidence merely offers the hypothesis that something was wrong somewhere, but does not prove that anything specific was actually inaccurate other than the two instances in which the trial court did find for plaintiff which Birdge has not challenged on appeal. Therefore, we affirm all of the trial court’s findings.

STIPULATION

Finally, we address the parties’ stipulation providing for bench trial of the accounting issue and the trial court’s determination that the accounting judgment was determinative of all other issues. The stipulation provided that the parties agreed to present their evidence to the court for a bench trial for findings as to an accounting and that said accounting should be tried before any other issue is raised by the proceedings. All other issues would be reserved for a trial by jury after the accounting judgment. However, following entry of the accounting judgment, the court would rule on any motions requesting a declaration that other issues are res judicata by virtue of the accounting judgment. Without awaiting the motions by the parties, the court simply noted in its judgment order that there were no issues to be presented to the jury.

Plaintiff asserts that at trial the court did exclude evidence which was objected to as not being relevant to the accounting issues of the case and that, although evidence on the accounting issue and other issues would overlap at times, it could not be expected that there would be enough evidence in the accounting trial to support the other issues in the complaint. Therefore, this court should enforce the stipulation. Defendant argues plaintiff waived his right to the jury trial by certain remarks made in plaintiff’s opening statements. Furthermore, defendant asserts the stipulation was not controlling, but was in the court’s discretion.

The record reveals that two objections were sustained on the grounds that the testimony was not relevant to the accounting issue. We do not believe plaintiff’s opening statement should be interpreted as waiving his right to jury trial nor should it be given such an effect. “[I]t has long been the policy of Illinois courts to enforce stipulations relating to the conduct of litigation unless the stipulations are a result of fraud or are illegal or contrary to public morals.” (Burris v. John Blue Co. (1976), 44 Ill. App. 3d 653, 655-56, 358 N.E.2d 724, 725.) We believe it should be the policy of the courts to encourage such stipulations, especially where designed to expedite the judicial proceedings. We express no opinion as to whether the other issues raised by the pleadings were rendered res judicata by the accounting judgment. However, we do remand to the trial court for further proceedings pursuant to the stipulation.

For the reasons stated, we affirm the trial court’s findings on the accounting judgment and remand for proceedings on other issues in accordance with the stipulation.

Affirmed in part, reversed in part, and remanded. Cross-appeal dismissed.

TRAPP and LEWIS, JJ., concur.


author: JUSTICE MILLS JUSTICE GREEN,

text:
    THE TOWN OF NAPLES et al., Plaintiffs-Appellants, v. THE COUNTY OF SCOTT et al., Defendants-Appellees.
    Fourth District
    No. 4—82—0241
    Opinion filed December 21, 1982.

      GREEN, J., specially concurring.
    Richard Collins, of Jacksonville, for appellants.
    Ronald E Robinson, State’s Attorney, of Winchester, for appellees.
   JUSTICE MILLS

delivered the opinion of the court:

Can a Board of County Commissioners consolidate precincts under the Election Code?

No.

We reverse in part and remand.

Plaintiffs, the town of Naples and residents of that town, filed suit on March 30, 1980, requesting the court to declare invalid a resolution passed by the Board of Commissioners of Scott County. The resolution provided for redistricting the Naples, North Bluffs, South Bluffs, and Oxville voting precincts, so that each precinct was divided into two portions, and each portion was combined with a portion of each of the other three precincts in order to form three new precincts. The complaint further alleged that the old precincts ranged in size from approximately 111 voters to 352 voters and the newly formed precincts ranged from 202 voters to 332 voters.

Paragraph 12 of the complaint alleged the existence and effectiveness on the date the resolution was passed of sections 11 — 1 and 11— 2 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, pars. 11—1, 11—2). These sections provided as follows:

“In counties not under township organization, the election precincts shall remain as now established until changed by the Board of County Commissioners, but said County Board may, from time to time, change the boundaries of election precincts and establish new ones. ***” (Ill. Rev. Stat. 1979, ch. 46, par. 11-1.)
“The County Board in each county, except in counties having a population of 3,000,000 inhabitants or over, shall, at its regular meeting in June, divide its election precincts which contain more than 800 voters, into election districts so that each district shall contain, as near as may be practicable, 500 voters, and not more in any case than 800. Whenever the County Board ascertains that any election precinct contains more than 600 registered voters, it may divide such precinct, at its regular meeting in June, into election precincts so that each precinct shall contain, as nearly as may be practicable, 500 voters.” (Ill. Rev. Stat. 1979, ch. 46, par. 11 — 2.)

Paragraph 13 alleged the invalidity of the resolution since the above-quoted sections do not authorize consolidation of precincts, the old precincts did not meet the numerical standards authorizing change, the new precincts do not meet the numerical goals, and there is a general lack of authority to alter precincts in the manner undertaken. Paragraph 13 also alleged that the resolution was illegal and void since it was arbitrary and unreasonable and therefore constituted a violation of plaintiffs’ rights to due process and equal protection under the Federal and State constitutions. Paragraph 15 alleges damages to plaintiffs by virtue of these violations.

A motion to strike certain paragraphs of the complaint as immaterial was filed and granted as to paragraphs 12, 13, 14 and 15. The court gave leave to plaintiffs to file an amended complaint. Following a denial of plaintiffs’ motion to reconsider, plaintiffs filed a complaint containing the identical essential allegations contained in and stricken from the first filed complaint. The court granted defendants’ motion to dismiss the second complaint.

The questions of whether the stricken paragraphs are material and whether the complaint states a good cause of action are one and the same. If the paragraphs are material, the complaint is good and vice versa. The answer is dependent upon statutory interpretation of sections 11 — 1 and 11 — 2. (However, the issue of the materiality of paragraphs 13(e) and 14 is waived pursuant to Supreme Court Rule 341(e)(7) since it was not argued on appeal (87 Ill. 2d R. 341(e)(7)).

Defendants contend the stricken paragraphs were immaterial since section 11 — 2 concerns division of existing precincts and there were no allegations that the existing precincts were divided. It is also implied that the resolution was in fact authorized by the broad language of section 11 — 1. Defendants conclude that since these statutes do not prohibit the consolidation of voting precincts they are immaterial when placed in context with allegations the statutes were violated by consolidating precincts. Essentially it is argued that the allegations are immaterial because they fail to state a cause of action. Plaintiffs, however, argue that section 11 — 2 entirely controls and limits the exercise of the seemingly broad grant of power in section 11 — 1. Plaintiffs imply that any action not authorized by section 11 — 2 is prohibited. Therefore, their allegations that the resolution violates sections 11 — 1 and 11 — 2 are material.

Plaintiffs support their contention that section 11 — 2 controls section 11 — 1 by citing County Board v. Short (1898), 77 Ill. App. 448, and Rexroth v. Schein (1903), 206 Ill. 80, 69 N.E. 240. In both of those cases, construing the statutory predecessors to the present sections 11 — 1 and 11 — 2, it was held that the times at which a county board may alter precinct boundaries was controlled and limited by the time stated in the predecessor statute to 11 — 2, notwithstanding language in the predecessor statute to section 11 — 1 that changes may be made “from time to time.” Plaintiffs also note People ex rel. Akin v. Board of Supervisors (1900), 185 Ill. 288, 56 N.E. 1044, where a writ of mandamus issued requiring the board to readjust the precinct boundaries to comply with the numerical mandate of the statute since it was clear that the redistricting attempt of the board did not comply with the numerical standards of the predecessor statute to section 11 — 1. Although that case did not explicitly discuss the effect of the numerical requirements of the predecessor statute to section 11 — 2 on the seemingly broad grant of authority to alter precincts found in the predecessor statute to section 11 — 1, plaintiffs conclude that section 11 — 2 is controlling.

Plaintiffs and defendants note two conflicting Illinois Attorney General opinions. In the first opinion, it is merely stated that there is no indication anywhere in section 11 — 2 of a legislative intent that the county board be given the power to consolidate election precincts. Therefore, it was concluded the boards had no such power. (1976 Ill. Att’y Gen. Op. 139.) The second decision noted the broad language of section 11 — 1 along with the language of section 11 — 2. The opinion states that the board was “given power to change the boundaries of election precincts and establish new ones. In doing so and in complying with the required population ranges per precinct, it seems inevitable that one or more precincts might be eliminated.” (1979 Ill. Att’y Gen. Op. 60, 61.) Since a county has all the implied powers necessary to effectuate its expressed powers, the opinion concluded it was implied that the board had power to consolidate districts. Neither opinion cited the above discussed cases, and the latter opinion did not note the previous opinion.

Defendants point out that the holdings in Rexroth and Short were limited to a finding that section 11 — 2 controls the time at which the power granted in section 11 — 1 may be exercised. Such a holding does not require that section 11 — 2 be found to entirely control and limit the grant of power in section 11 — 1. Furthermore, defendants argue the second Attorney General opinion is more persuasive since it considered section 11 — 2 in conjunction with section 11 — 1. Defendants’ only other argument is that section 11 — 1 would be entirely unnecessary if the board only had the power stated in section 11 — 2.

Although the parties’ arguments center on the power of the board to consolidate precincts, the general question is whether section 11 — 2 entirely controls and limits the grant of authority in section 11 — 1. We believe section 11 — 2 does control under the rationale of Rexroth and Short as well as independent statutory interpretation. Although Rexroth and Short were limited in their holdings to a determination that the time limits of section 11 — 2 control section 11 — 1, both courts noted that the sections were in pari materia and must be construed together. Rexroth stated in dictum that 11 — 2 “controls the time and manner of the exercise of the power” in section 11 — 1. (Emphasis added.) (206 Ill. 80, 90, 69 N.E. 240, 244.) The Short court found it clear that the words “from time to time” in section 11 — 1 meant at the time stated in section 11 — 2. However, the court noted that even if this were not so clearly manifest, the same interpretation would be reached because of the absurdity of allowing the board “within the last ten days prior to an election, to create any number of new election precincts, and change the boundaries of all the precincts in the county, thereby to destroy all the election districts, thus rendering all the provisions of section 30 [section 11 — 2] nugatory, and making performance of most of the provisions of the election law absolutely impossible.” (77 111. App. 448, 453.) Once again, although the holding was limited to the interpretation of the time limitation, we also find that defendants’ interpretation is absurd since it would allow the board to alter precincts in any manner they desired and render the provisions of section 11 — 2 nugatory. While defendants have asserted that section 11 — 1 is wholly unnecessary if given the interpretation urged by plaintiffs, we believe the converse is true. The essence of section 11 — 1 is that the precincts shall remain the same until changed and the board may change them. Standing alone, this is absurd. The statement that the precincts shall remain the same is totally superfluous unless section 11 — 1 is read as stating the broad policy that election precincts shall remain as established until changed at the times and in the manner authorized by section 11 — 2.

Finally, we reject the rationale of the Attorney General’s second opinion which found that consolidation would necessarily be unavoidable in some instances and therefore consolidation was an implicit power. To comply with the required population ranges per precinct does not require consolidation since the number of voters per precinct is merely a goal, not a requirement, to be attained by dividing precincts under conditions authorized by section 11 — 2. If a precinct having over 600 voters is divided so that there are just over 300 voters in each district rather than the goal of 500 voters per district, the failure to reach the goal of 500 voters does not authorize consolidation with other districts to attain that goal. Therefore, there is no implicit power, and we conclude that section 11 — 2 entirely controls section 11 — 1.

Defendants would still contend that the allegations regarding sections 11 — 1 and 11 — 2 and violations thereof are immaterial since, even though these sections may not authorize redistricting in the manner undertaken by the resolution, the sections do not prohibit it. As long as the sections do not prohibit such actions they are no more material than any other statute which does not authorize the actions. However, as discussed above, the sections, when construed together, reveal a legislative intent that they provide the exclusive time and manner for altering precincts. Since they are exclusive they constitute, by necessary implication, a prohibition upon any other manner of reprecincting. Therefore, we find the statutes do in fact prohibit the effect of the resolution as alleged, and the statutes and alleged violations thereof are material such that the complaint states a cause of action with these allegations.

The trial court also struck as immaterial a subparagraph alleging the resolution was invalid because it was arbitrary and unreasonable and therefore a violation of plaintiffs’ rights to due process and equal protection under the Federal and State constitutions. We fail to see how this allegation could be immaterial. The complaint would state a valid cause of action if this were the only stricken allegation to be reinstated.

The mere existence of this cause of action, and the Attorney General’s conflicting opinions, reveal that some county commissioners have felt that county boards do have the power to consolidate election precincts. The attempts at consolidation reveal that some commissioners believe that the power of consolidation would be an effective tool in the efficient redistricting of precincts. We conclude that these circumstances merit consideration and urge the legislature to reevaluate the relevant statutes for purposes of clarification and possible amendment, authorizing consolidation of election precincts if no valid objections are raised.

Although we construe section 11 — 2 to be mandatory in the present case, to the extent that improper redistricting has previously occurred and elections held in reliance thereon, we construe the statute as directory. Our supreme court has previously construed section 11 — 2 as being either mandatory or directory, depending on the consequences attendant thereto. (Compare Rexroth with Stroud v. McCallen (1944), 386 Ill. 103, 53 N.E.2d 422. See also, 2A Sutherland Statutory Construction secs. 57.07, 57.25 (4th ed. 1973).) We believe that where violations of section 11 — 2 have already occurred and no suit has been filed prior to elections being held in reliance upon the improper redistricting, practicalities and common sense require that the statutes be classified as directory in order that the alterations cannot now be determined to be invalid or void.

In the present case, however, we interpret the statute to be mandatory under the authority of Board of Supervisors. The fact that an election has been held since the improper redistricting is not a major obstacle to granting proper relief. Section 11 — 2 authorizes redistricting when the county board “ascertains that any election precinct contains” the required number of voters. The number of voters in the precincts as they were constituted prior to this attempted redistricting may be determined from voter registration records of the last general election, such that any redistricting required or permitted by section 11 — 2 may be carried out as if the improper redistricting had not occurred.

In sum, we reverse the order dismissing the complaint since we find that all stricken paragraphs were material, except for subparagraphs 13(e) and 14, upon which argument was waived.

Reversed in part and remanded.

LEWIS, J., concurs.

JUSTICE GREEN,

specially concurring:

I concur with the decision of the majority to reverse the order dismissing the complaint. I agree that it does state a cause of action.

I further agree that sections 11 — 1 and 11 — 2 of the Election Code must be considered together. The mandatory requirement of section 11 — 2 to change boundaries when a precinct has a voter population exceeding a certain number (now 800) is consistent with a general discretionary power to do so arising from section 11 — 1. However, the provision of section 11 — 2 authorizing but not requiring boundary changes when a precinct has a voter population in excess of a certain number (now 600) would be totally useless if section 11 — 1 already gave that power. Moreover, the self-sufficiency of section 11 — 1 is further suspect because of its failure to make any express grant of power to change precinct lines to governing boards in counties under township organization. Thus, I agree with the majority’s determination to follow the dictum of Rexroth that section 11 — 2 controls both the time and manner of making these changes.

The complaint here alleges that no precinct altered had a voter population in excess of 600 voters. As section 11 — 2 gives no authority to change boundaries in the absence of a precinct of that size, the majority correctly holds that the complaint stated a cause of action. I deem the existence of such a precinct to be the necessary element to trigger the power to remap. I do not agree with the breadth of the majority opinion which states that consolidation of precincts is impermissible and seems to indicate that the only action a governing board can take is to divide an existing precinct into one or more precincts. At the time of Rexroth, as now, the predecessor to section 11 — 2 spoke of the board dividing or readjusting the precincts. This would imply that portions of an existing precinct may be added to an existing precinct or even that precincts may be totally consolidated if done pursuant to a scheme to reduce one or more excessively large precincts.

In Stroud, several precincts in a township had a population of more than 800 voters, so the county board made a readjustment of precincts creating several more. One of the original precincts had only 211 voters. The board made no change in the boundaries of that precinct. Answering a contention that the failure to enlarge the precinct was improper, the supreme court stated that absent evidence that the board was arbitrary or unreasonable in failing to do so, no impropriety was shown. Had the supreme court thought the board lacked power to consolidate a portion of another precinct with that precinct, it would have so stated.

The majority wisely notes that many counties have probably redrawn precinct lines in violation of its holding and properly follows Stroud to state that such a violation will not vitiate an election. Nevertheless, substantial difficulty may arise in these counties from merely being required to remap their precincts. The statutory language is confusing and, as stated, urgently requires legislative clarification. In the meantime, I would not interpret it as narrowly as the majority. I would permit additions of all or part of one precinct to another if done in conjunction with the reduction of a precinct with over 600 voters.


author: PRESIDING JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. EDWARD M. WAHLEN, Defendant-Appellee.
    Fourth District
    No. 4—82—0325
    Opinion filed December 13, 1982.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and Michael W. Hogan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Paul R. Welch, of Costigan & Wollrab, of Bloomington, for appellee.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

The State appeals under Supreme Court Rule 604(a)(1) (87 Ill. 2d R. 604(a)(1)) an order of the circuit court of McLean County which suppressed evidence.

The background may be gleaned from the discovery information in the file. All of the events occurred at a dormitory at Illinois State University in the very early morning hours of September 20, 1981. Two students, sharing a room on the 10th floor, awakened to find an individual rifling their possessions. Upon being accosted by them, he fled. The occupants of the room were able to obtain a good view of him since the lights were apparently on. They discovered that a digital pocket watch belonging to one of them was missing and they thereupon notified “the front desk.” Police reports in the file indicate that the campus police received a call concerning a possible burglary at 4:01 a.m.

Police officers arrived at the dormitory and while they were taking a report from the occupants of the room, an individual matching the description of the person who had been going through their property passed by in the hallway. The officers thereupon detained him (the evidence being in conflict as to whether they arrested him at that time) and determined that he was also a student and resided on the fourth floor of the same dormitory.

The events which then followed are found in the record developed at the suppression hearing. Two officers, who were present on the 10th floor, escorted the suspect, who is the defendant in this case, to the fourth floor and caused him to open his room. His roommate was asleep in the room at the time. The two officers and the defendant entered the room and the officers ordered the defendant, who was wearing only a pair of shorts, to get dressed in order to go to the campus police headquarters.

The roommate was awakened and told that the defendant had been arrested and was being taken to headquarters. Meanwhile, the two officers present in the dormitory had been in radio communication with their supervisor who instructed them to obtain permission to search defendant’s room; otherwise, to indicate that the room would be “sealed” until a search warrant could be obtained. September 20, 1981, was a Sunday. These instructions were broadcast to the hand-held radios of the officers and were loud enough for everyone present, the officers, the defendant, his roommate, and certain dormitory officials, to hear. The officers present repeated the instructions to the defendant and his roommate and a short time later the supervising corporal arrived and likewise repeated them. Both the roommate and the defendant were told that they might remove such books and personal items as they might need, but that the room was to be sealed until a search warrant could be obtained; the alternative was consent to search.

The roommate, who testified that he had arrived at the room at about 2 a.m. and had slept until awakened as above described, gave his oral consent to search. This was followed almost immediately by an oral consent from the defendant. The search was executed on the spot and a digital pocket watch was discovered in defendant’s side of the room. There was also evidence that the university police ordinarily require written consent on forms furnished by them for warrant-less consensual searches, but that all the transactions in the present case were oral.

The defendant was then removed from the dormitory, booked, and afterwards indicted by a grand jury for burglary and theft of property less than $150 in value. Thereafter, the instant motion to suppress the seized evidence was filed, the basis of which was that the consent to search had been coerced; the trial court allowed the motion and this appeal by the State followed.

Although the defendant was apparently arrested only moments before the party arrived at the fourth floor room, no contention is made by the State that the search was incident to a lawful arrest; rather, the State relies on the oral consents of the defendant and his roommate, and argues that no coercion was present: (1) that the defendant was going to be jailed, so deprivation of access to his room was a moot problem, and (2) as to the roommate, “who could easily turn to the hall manager and others present to help him find substitute sleeping arrangements,” there was no deprivation whatever.

Where a warrantless search is executed pursuant to consent, the consent must be proved by clear and positive testimony and it must be established that there was no duress or coercion, actual or implied. The prosecution must show a consent that is unequivocal and specific, freely and intelligently given. Courts will indulge every reasonable presumption against a waiver of fundamental constitutional rights. (People v. Haskell (1968), 41 Ill. 2d 25, 241 N.E.2d 430, overruled on other grounds by People v. Nunn (1973), 55 Ill. 2d 344, 304 N.E.2d 81, cert. denied (1974), 416 U.S. 904, 40 L. Ed. 2d 108, 94 S. Ct. 1608.) The voluntary nature of consent depends, not on any single criterion, but on all circumstances surrounding the giving of the consent. People v. Posey (1981), 99 Ill. App. 3d 943, 426 N.E.2d 209.

In applying these principles to the instant case, it is our opinion that coercion was clearly present. We know of no authority in the police to “seal” a room until a warrant may be obtained (if it may be obtained at all), and the time element here is not insignificant. It will be remembered that the events described occurred between 4 and 4:30 a.m. on a Sunday morning and there was no suggestion that a warrant would even be sought until Monday morning, more than 24 hours later. Accommodations would be needed for the roommate for the remainder of the night in question, all day Sunday, and Sunday night, with a portion of Monday morning thrown in for good measure. The State’s argument that such accommodations could be “easily” obtained is fatuous, to say the least. Not one shred of evidence was introduced to show how “easily” such alternative arrangements could be made, or even to show that any other arrangements, easy or difficult, could be made. More importantly, we have a college student, innocent of any offense, asleep in his own room for two hours, awakened at 4 a.m. with three police officers in that room demanding in substance “consent or get out.” A more crystalline case of coercion can scarcely be imagined.

As to the defendant, the State’s Attorney established on the record that he had been arrested and then put the matter of his arrangements euphemistically: “So arrangements for his room and board were taken care of so to speak.” We fail to understand how the fact that one might be incarcerated and thus have no immediate use for his living quarters can grant authority to the police to do something not sanctioned by law. The threat, and its consequences, were there, no matter what the disposition of the defendant might be. Although it is not necessary that the State show that the consenting party was advised of his rights secured by the fourth amendment, the failure to do so is a factor bearing on the understanding nature of the consent. (Haskell; Posey.) In the instant case by telling defendant and his roommate that if they failed to consent, they would be forced to leave their room until a search warrant could be obtained, went beyond not telling defendant and his roommate that they need not consent. This must be considered as a factor together with the other criteria which, when taken as a whole, show that defendant and his roommate were coerced into consenting.

A trial court’s determination on the voluntariness of a consent is to be accepted on review unless its findings are clearly unreasonable. Where the trial court finds, under the totality of circumstances, that a consent was not voluntary or free from coercion and the finding is clearly reasonable, it must not be disturbed. (People v. Ford (1980), 83 Ill. App. 3d 57; 403 N.E.2d 512.) In the case at bar the trial court, after considering the totality of circumstances, found that defendant and his roommate had not voluntarily consented and that their consent was not free from coercion. On the record this finding was not unreasonable and should not be disturbed.

The order of suppression entered by the circuit court of McLean County is affirmed.

Affirmed.

TRAPP and LEWIS, JJ., concur.