text:
    Northwestern Terra Cotta Corporation, an Illinois Corporation, Plaintiff-Appellee, v. Francis S. Wilson, Defendant-Appellant.
    Gen. No. 51,183.
    First District, Fourth Division.
    July 29, 1966.

      Wayland B. Cedarquist, Thomas J. Boodell, Nunzio A. Giambalvo and Boodell, Sears, Foster, Sugrue & Crowley, of Chicago (Thomas J. Boodell, Jr., of counsel), for appellant.
    W. McNeil Kennedy, Frank F. Fowle and Herbert S. Wander, of Chicago (Pope, Ballard, Uriell, Kennedy, Shepard & Fowle, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant appeals from an order temporarily restraining him from voting shares of stock in the plaintiff corporation of which he is a director.

Plaintiff (an Illinois corporation) brought an action against Francis S. Wilson and Earl Johnson, two of its directors, and alleged in its complaint (1) that the defendants purchased 24,164 shares of the plaintiff corporation in breach of their fiduciary duties as directors and (2) that the plaintiff will be irreparably damaged unless the defendants are temporarily restrained and enjoined from voting the aforesaid shares pending a final hearing. Plaintiff prayed that the court issue the preliminary injunction and also that the court enter an order requiring the defendants to convey the shares in question to the plaintiff at the price for which they were purchased. After a hearing on the motion for the preliminary injunction the court entered an order that defendant Wilson be temporarily enjoined from voting 24,164 shares of stock of the plaintiff corporation, from which defendant Wilson appeals. The aforesaid order also dismissed Earl Johnson as a defendant and no appeal has been taken from that part of the order.

Since Earl Johnson was dismissed, we must examine the complaint as it relates to the remaining defendant, Wilson. There is no denial of the allegations that the plaintiff, acting through its president, George L. Hudson, and Earl Johnson (a brother of Arnold Johnson, and a director and officer of plaintiff corporation) negotiated with the Continental Illinois National Bank and Trust Company of Chicago (hereinafter referred to as “Bank”) for the purchase of plaintiff’s common stock and that on November 3, 1964, Hudson and Johnson formally offered $5 a share for 9,823 shares but that this offer was rejected. However, the following charges of the complaint were denied by defendant’s answer: (1) that plaintiff continued to be interested in the purchase of 24,000 shares and that negotiations continued until July 1965; (2) that defendant was aware of said negotiations and participated in discussions with Hudson, wherein it was agreed that it would be advantageous to plaintiff to purchase said shares; (3) that in July 1965 the Bank, through Johnson, informed plaintiff that the Bank was willing to sell the 24,000 shares to plaintiff at $7 per share and defendant, knowing of plaintiff’s continuing interest and ability to purchase said shares and in violation of his fiduciary obligation as a director, did not inform plaintiff of said offer but instead with others purchased the shares.

The court heard extensive testimony during the hearing on plaintiff’s motion for a temporary injunction. George Hudson testified that on April 18, 1963, the Board of Directors axithorized the purchase of 25,943 shares of the plaintiff’s common stock at $4 per share; that the Bank rejected the plaintiff’s offer to purchase the shares at that price; that the Board voted on February 26, 1964, to offer $4.50 per share for 25,000 shares; that Earl Johnson was instructed to convey the offer and to keep in touch with the Bank; that the offer was turned down; and that on November 3, 1964, plaintiff offered to purchase 9,823 shares from the Bank at $5 per share but this offer was also rejected. Hudson further stated:

The Northwestern procedure as regards investments is that the investments are determined by the Executive Committee and after the Executive Committee decides to make an investment, every Director must approve of the investment. If any Director rejects the investment or vetoes, we do not go ahead and make the investment.
Northwestern offered $4 a Share; then $4.50; and then $5. The price of $7 a Share for the 24,000 Shares at the Bank was never discussed by the Northwestern Board .... The Board never adopted a resolution authorizing the purchase of those Shares at $7 a Share. The purchase of those 24,000 Shares at $7 a Share was never discussed at any Meeting of the Northwestern Executive Committee. The Executive Committee never adopted a resolution authorizing the purchase at $7 a Share.
I came to a conclusion that Northwestern should purchase these Shares at $7 a Share when I discovered they had been purchased for $7. August 6, 1965 was the first date I knew the purchase had been made.
I would reach such a conclusion from some Northwestern report. The last report preceding May was the one dated April 20, 1965. I may have based it on a report which I would figure out for myself from market quotations as to the Northwestern Holdings. I might have done this on May 5, 1965. Actually, I have picked the date of May 5, 1965 out of the air.
After reaching my conclusion in the middle of May, 1965, I communicated it only to Earl Johnson. I told him that, in view of the increased value of the underlying stocks [owned by plaintiff], we probably should be setting a price of about $7 on any stock we buy in.
After I reached my decision in May, 1965 that the Stock was worth $7, I did not communicate this to the Bank. I did consult with Mr. Lannan [a principal stockholder].
I also communicated this conclusion to Mr. Wright [a director]. I also communicated it especially to Mr. Fox [then attorney for the corporation]. This was in May, 1965.
I met with Johnson, Fox and Wright for lunch on May 10, 1965. Johnson said that the Bank was now valuing the Denver property [real estate owned by plaintiff] at $500,000. He also said that the Stock was currently trading at $6.50 or $7. We decided we should move our price up to $7 on any stock that was offered to the Corporation. Fox cautioned us against soliciting offers, “so it had to be offered to us before we could purchase it.” We never received an offer from the Bank.
Northwestern’s cash position in the summer of 1965 was that it had somewhere between $25,000 and $35,000. If Northwestern had purchased the 24,000 Shares from the Bank and Carmen Johnson [widow of Arnold Johnson and owner of about 15,000 of the 24,164 shares in question], Northwestern would have had to sell some of its securities or obtain a loan. It is my judgment that a sale of any of its securities would not have been in the best interests of the Corporation.
If any Shareholder had indicated his willingness to sell his Shares at $7 a Share, Northwestern would have bought. Johnson, Wright and Fox were aware of my conclusion. I never reported my conclusion to the Northwestern Board at any Meeting. Nor to the Executive Committee at any Meeting.

Leslie L. Reid, called as a witness by both plaintiff and defendant, stated that he is a vice president in the trust department of the aforesaid Bank and that by early June of 1965 the Bank had been trying to sell the shares in question for about two or three years. He also stated that Hudson and Earl Johnson met with various bank personnel in November 1964 and that:

We were dealing with the Northwestern offer of $5 a Share for the Shares held by the A and B Trusts [referring to the aforesaid 9,823 shares]. We said we could not accept an offer of $5 a Share.
We named a price that we were willing to recommend. That price was $7 a Share.
Mr. Hudson said Northwestern was not willing to pay $7 a Share; and, if we wanted $7, he didn’t think we could get it from them.
This related to just under 10,000 Shares in Trusts A and B; about 15,000 Shares held by Carmen Johnson, and about 2,700 Shares in some unrelated accounts.
The next time I heard from Hudson, following the meeting of November 6, 1964, was about a year later, about November, 1965.
With reference to my first meeting with Wilson in June 1965, just before that, I ran into him at the Bank and I told him we were hopeful we could sell the Shares to him. He had bought some other Northwestern Shares from the Bank, acting as Trustee. That earlier transaction was in April or May 1965. Wilson told me he paid $7.00 a Share in that earlier transaction. . . . That involved around 2,700 Shares.

In addition, three other officials of the Continental Bank who were present at the November 6 meeting testified that Hudson rejected the figure of $7.00 per share.

Earl Johnson, the erstwhile defendant, testified that:

I attended the Meeting at the Continental Bank on November 6, 1964. We met for the purpose of talking about the letter I had written to Mr. Reid and the reply, establishing the fact that Northwestern was offering $5 for the approximately 9,000 Shares in Trusts A and B. Mr. Reid said the $5 price was not acceptable but that if a $7 offer was presented, they would accept it. The Bank said this would also apply to the Carmen Johnson Shares and the other unrelated 2,700 Shares. Hudson thought we couldn’t pay any more than $5 and he wouldn’t go along on $7.
We had a Northwestern Board Meeting the same day, after the Meeting at the Bank. We talked about the Meeting at the Bank. Hudson said $7 was too high and they wouldn’t pay it.
This was again mentioned at a Board Meeting in April 1965. I wanted to know whether we couldn’t raise our bid toward $7. But Hudson indicated that $5 was the maximum price they would go. Hudson took no action with regard to the $7 figure at any time after the Bank Meeting on November 6, 1964.

Defendant testified in his own behalf and stated:

I never participated in any of the talks or discussions which Earl Johnson or Hudson had with Reid or anyone else at the Continental Bank relating to the Arnold Johnson Shares. I was aware that their talks were going on.
I had nothing to do with the negotiations between Northwestern and the bank ....
I bought 2,700 Shares of Northwestern stock from the Bank in April, 1964 [sic (1965?)] at $7 a share.
Prior to the 2,700 Share purchase, I had owned some 2,200 Northwestern Shares for 10 or 12 years.
Woolard & Company [of which defendant is a vice president] bought all 24,164 Shares on July 13, 1965, as Principal and immediately sold to members of the group [of which defendant was a member] .

There is a general rule that a director of a corporation owes a duty to the corporation to take no advantage of his position for financial gain in derogation of the corporation’s rights. Henry’s Drive-In, Inc. v. Anderson, 37 Ill App2d 113, 185 NE2d 103. Whether in any case there is a duty upon a corporate official to refrain from purchasing property for himself depends upon whether the corporation has an interest, actual or in expectancy, in the property, or whether the purchase of the property by the officer or director may hinder or defeat the plans and purposes of the corporation in the carrying on or development of the legitimate business for which it was created. Turner v. American Metal Co., 268 App Div 239, 50 NYS2d 800; Boxrud v. Ronning Mach. Co., 217 Minn 518, 15 NW2d 112. Where there is no such duty the director of a corporation may acquire outside interests, although the corporation may be more or less interested. Fletcher Cyc Corp § 862 (Perm Ed 1965). An opportunity may be embraced by a director as his own without accountability to the corporation if the corporation sought without success to obtain it. 19 Am Jur2d, Corporations, § 1313.

The overwhelming evidence in the instant case shows that on November 24, 1964, the plaintiff refused to pay $7 a share for the purchase of its stock and that the highest offer made by the plaintiff to the Bank was only $5. There is no proof that, as alleged in the complaint, defendant “participated in discussions with Hudson, wherein it was agreed that it would be advantageous to plaintiff to purchase said shares” or that the Bank in July 1965 notified Johnson of its willingness to sell 24,000 of its shares to plaintiff at $7 (on June 24, 1965, the agreement for the sale of the stock was entered into between the Bank and the defendant — it was finalized on July 13) or that defendant knew of this purported offer and violated his duty to the corporation by not informing it of this purported offer and by buying some of the stock himself, knowing of such an offer. In his testimony Hudson stated his position to be that he had decided on May 10 that the corporation should pay $7 per share; that he did not communicate this to the Bank; that Fox (the then corporation attorney) advised him that the corporation “should never go out and make an offer to buy the shares.”

However, on June 10, 1965, Fox, as attorney for plaintiff, wrote a shareholder in response to a suggestion that plaintiff buy his stock that plaintiff was not presently “redeeming” any of its shares. Defendant was aware of this letter shortly after June 10 having been shown a copy by Earl Johnson.

We find no support for plaintiff’s claim that plaintiff was genuinely interested in acquiring its stock at $7 per share prior to the date defendant contracted to purchase the shares in question. At best, after May 10, 1965, it might have considered offers of stockholders who wished to sell their stock (although this is not borne out by its refusal of June 10, 1965) but even this so-called policy was never adopted by the stockholders, Board of Directors or even the Executive Committee.

Plaintiff has cited a number of cases involving a director’s usurpation of his corporation’s opportunity to purchase shares of stock: Kelly v. 74 & 76 West Tremont Ave. Corp., 151 NYS2d 900; Ashman v. Miller, 101 F2d 85 (6th Cir); Bisbee v. Midland Linseed Products Co., 19 F2d 24 (8th Cir). We do not consider the corporate opportunity principle to be applicable to the facts of the case before us.

In Vulcanized Rubber & Plastics Co. v. Scheckter, 400 Pa 405, 162 A2d 400, the corporation sued some of its directors for purchasing some of its own stock in derogation of their fiduciary obligations as directors. The corporation had never adopted a resolution authorizing a purchase. The court held to be erroneous the entry of a temporary injunction enjoining the defendants from voting the shares in question. While in the instant case the corporation had authorized a purchase of 25,493 shares at $4 per share in 1963, of the same number of shares at $4.50 per share in February 1964 and 9,823 shares at $5 in November 1964, there was never any corporate action to purchase any shares at $7 per share. The principle enunciated in Vulcanized at page 404 is applicable here:

. . . [T]he complainant must establish that it is his clear legal right, not doubtful or uncertain, to the specific relief sought; otherwise the preliminary injunction will be dissolved. . . .

Since under all the circumstances of the instant case we do not find that the evidence established a clear legal right, not doubtful or uncertain, to the specific relief sought, the order granting the preliminary injunction is reversed.

Reversed.

ENGLISH and McCORMICK, JJ., concur.

       This litigation concerns 24,164 shares of stock purchased on July 13, 1966, by defendant and his associates. The evidence showed that the sale of 24,164 shares was negotiated by the defendant but that he actually purchased only 12,173 shares for himself. The names and interest of his associates were disclosed. However, the plaintiff asserted that while only 12,173 of those shares were registered in the name of the defendant, he (defendant) had placed the remaining shares beyond the reach of the court. Although no evidence was introduced to support this assertion, the trial court enjoined the defendant from voting not only the aforesaid 12,173 shares but also 11,991 additional shares owned by the defendant as a result of other purchases.

       The Bank was trustee under the will of Arnold Johnson of Trusts A and B consisting of 9,823 shares in plaintiff corporation. 15,000 other shares were bequeathed by Arnold Johnson to Carmen Johnson directly with which she established an inter vivos trust with the Bank as cotrustee in 1959. While the latter trust was subsequently revoked, the Bank had an understanding with Carmen Johnson that it would handle the shares along with those in Trusts A and B.

       Hudson testified: “I did not say, at the Bank Meeting on November 6, 1964, that Northwestern would not pay $7.”

       Defendant testified that he received a total of 12,300 of those shares. He also identified the other recipients and the extent of their respective purchases.

       Defendant testified: “My only expression at that Meeting [November 1964] or any other Meeting with reference to acquiring the Arnold Johnson Shares was that there was no corporate need for the Company to buy its own Stock but there was a need for them to conserve their funds to get in other businesses.”

       Subsequent to acquisition of the shares in question by defendant and others, plaintiff did purchase 3,104 shares at $7 per share on July 30, 1965, and 1,404 shares at $7.50 on November 18, 1965, but such purchases were never authorized by the Executive Committee or the Board.


source: Caselaw Access Project

author: MR. JUSTICE SCHWARTZ

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Hansen, Defendant-Appellant.
    Gen. No. 50,213.
    First District, Third Division.
    July 29, 1966.

      Joseph I. Bulger, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, James Zagel and Kenneth L. Gillis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Defendant was found guilty of operating a trailer truck 21,980 pounds in excess of the statutory weight limit and was fined $2,198. The points raised are substantially the same, with some minor exceptions, as those in People v. Fair, 61 Ill App2d 360, 210 NE2d 593 (petition for leave to appeal denied 33 Ill2d) and People v. Fraschetti, 73 Ill App2d 449, 220 NE2d 98, in which an opinion was filed by this court on July 28, 1966. As in those cases, the principal point relied on by defendant is that the State failed to prove defendant guilty beyond a reasonable doubt. It is necessary therefore to state somewhat fully the facts in the instant case.

On September 26,1960, defendant was operating a five-axle tractor-truck and trailer vehicle in the vicinity of 130th Street and Muskegon Avenue, in the city of Chicago. While in that area he was observed by Sergeants Richard Walsh and Robert Lambert, of the Chicago Police Department. The officers testified that after observing the size of the load, the pulling of the motor and the position of the springs, they had reason to believe the vehicle was overweight. They stopped the defendant and directed him to proceed to a scale located at the Hegewisch Coal & Oil Co., at 13500 Brainard Avenue. The scale had a 20'xl0' platform and bore a seal issued by the city of Chicago. The scale was operated by Deputy Weighmasters Walter Pala and Michael Dwaisick. The officers directed defendant to move the vehicle into position, with the steering axle on the scale platform. When the vehicle was in position, the scale registered 8,330 pounds. Defendant then moved the truck up so that the drive wheels, two axles in tandem situated beneath the cab of the tractor-truck, were on the scale platform. The scale indicated that the weight of the tandem drive axles was 39,050 pounds. Under the direction of the officers, defendant then moved the vehicle into such a position that the tandem trailer axles could be weighed. The scale indicated their weight to be 46,600 pounds. The Weighmaster totaled the weights and issued a receipt which indicated that the vehicle weighed 93,980 pounds. This receipt was admitted into evidence over the objection of defense counsel. The scale, as we have said, bore the seal of the Office of the City Sealer of the city of Chicago.

The weight of an individual or an object may be established in many ways — by the observation of experienced witnesses, by circumstantial evidence and expert testimony or by the finding of scientific instruments. The arresting officers were presumably experienced in judging the weight of vehicles. They observed various unusual characteristics about the vehicle here in question —the pulling noise of the engine, the size of its load and the position of its springs. They concluded from these observations that the vehicle was overweight and they then proceeded to act in accordance with the statute. The excess weight, 21,980 pounds, was approximately thirty percent more than that allowed by statute. This, as we said in People v. Fraschetti, supra, makes the argument with respect to the scale and the method of weighing seem hypercritical and frivolous.

One other point is made by defendant in his Points and Authorities — that the admission in evidence of a weight certificate prepared by the Weighmaster was error and that the Weighmaster should have been presented as a witness and subjected to cross-examination on that point. The weight certificate added nothing to the testimony of the police officers, and no evidence was introduced by defendant controverting the testimony with respect to weight. The Weighmaster was licensed and was empowered to issue and keep records of such certificates, which would appear to fall within the public document exception to the hearsay rule and entitled to admission into evidence on that basis. (Municipal Code of Chicago, §§ 164-1 to 164-19 (1939, with amendments to January 1, 1965)); Wigmore, Evidence, §§ 1631-1632 (3rd Ed, 1940).

In any event this was harmless error, and the other evidence supporting the violation leaves no reasonable doubt as to the weight of the vehicle.

Judgment affirmed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


text:
    Eugene Matanky & Associates, Inc., an Illinois Corporation, Plaintiff-Appellant, v. Harold Onixt and Claire Onixt, His Wife, Defendants-Appellees.
    Gen. No. M-50,908.
    First District, Third Division.
    July 29, 1966.
    Favil David Berns, of Chicago (Harry G. Fins, of counsel), for appellant.
    David T. Onixt, of Chicago, for appellees.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiff’s action seeking to recover a commission alleged to be due on the sale of real estate was tried by a court without a jury. The court found for defendants and judgment was entered accordingly. More than thirty days after entry of the judgment, defendants made a motion to recover their expenses and reasonable attorney’s fees pursuant to section 41 of the Civil Practice Act, which reads as follows:

“Untrue Statements.) Allegations and denials, made without reasonable cause and not in good faith, and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court at the trial.” (Emphasis added.)

The court found for defendants on that phase of the case and entered judgment against plaintiff for $626, from which plaintiff appeals.

The sole point made by plaintiff is that defendants’ motion was made more than thirty days after the entry of the original judgment, that the provision in section 41 that the costs are “to be summarily taxed ... at the trial,” requires that the assessment be made at the trial, or certainly within thirty days thereafter.

Defendants reply that until the expiration of the thirty day period for the filing of post-trial motions, the expenses incurred in the litigation could not be finally determined, and hence the motion made within fifteen days after the thirty day period was timely.

In Adams v. Silfen, 342 Ill App 415, 96 NE2d 628, the court was faced with the problem of construing the language of section 41 (formerly Ill Rev Stats, c 110, § 165 (1949)). The court held that “summarily” did not mean “arbitrarily,” and that the party sought to be charged with the payment of costs must be afforded an opportunity to be heard. The court said, however, that “summarily” means that “it should be done without delay and without undue formality. . . .” In Boss v. Coe Inv. Co., 45 Ill App2d 417, 195 NE2d 735, a motion pursuant to section 41 was made more than fourteen months after affirmance of the judgment. On appeal the court cited Adams v. Silfen, supra, and held that a claim for expenses should be made without delay at the trial and that the petition was not timely.

In People ex rel. Madison Chemical Corp. v. Gurrie, 52 Ill App2d 360, 202 NE2d 123, the court held that a motion for costs and fees under section 41 must be filed within thirty days. There, the petition was filed three months after judgment was entered, and the court said, “since jurisdiction was not retained by the court, the trial court correctly held that it was without jurisdiction to modify the judgment. . . .” (P 364.)

Defendants argue that the above decisions are not controlling because they involve periods of time greater than the forty-five days which elapsed in the instant case. The decision in Madison-Chemical Corp. v. Gurrie, supra, however, was not based upon the reasonableness of the amount of time after judgment; rather, the court said that after thirty days the trial court had lost jurisdiction.

Defendants contend that a rule requiring the filing of such a petition within thirty days would deprive a party of the right to recover those expenses which cannot be calculated until after the expiration of the thirty-day period. The trial court, however, has the power to retain jurisdiction of the cause after the filing of such a motion within the thirty-day period for the purpose of determining whether further costs and expenses have been incurred and entering judgment accordingly. We hold that a motion pursuant to section 41 seeking to recover expenses must be filed within thirty days after judgment.

Judgment reversed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


text:
    People of the State of Illinois, Defendant in Error, v. William Brown, Plaintiff in Error.
    Gen. No. 51,185.
    First District, Third Division.
    July 29, 1966.
    George W. Groble, of Chicago, for plaintiff in error.
    William G. Clark, Attorney General, of Springfield (Fred G. Leach, Assistant Attorney General, of Springfield, Daniel P. Ward, State’s Attorney of Cook County, of Chicago, and Elmer C. Kissane and Carmen V. Speranza, Assistant State’s Attorneys, of Chicago, of counsel), for defendant in error.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Upon a trial without a jury, the defendant was convicted of the unlawful possession of narcotics and sentenced to two years to two years and a day in the state penitentiary. He contends that he was denied the right to a trial within the period prescribed by statute (Ill Rev Stats, c 38, § 748 (1961)), which reads as follows:

“748. Discharge For Want of Prosecution.] Any person committed for a criminal or supposed criminal offense, and not admitted to bail, and not tried by the court having jurisdiction of the offense, within four months of the date of commitment, shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner, . . (Emphasis added.)

The issue to be determined on appeal is whether a continuance granted by the court during the period prior to trial was on the application of the defendant, in which case the running of the four-month statutory period would have been tolled.

Defendant was arrested with one Charleen Brown, not a relative, on February 21, 1963. Charleen was released on bail, but the defendant remained in custody. In the following months defendant and Charleen were brought before a judge of the Municipal Court of Chicago four times for the purpose of determining whether there was sufficient evidence to hold them to the Grand Jury. On June 13, 1963, a preliminary hearing was held and defendant was bound to the Grand Jury. On July 5, defendant was finally indicted, and on July 15, 1963, the Public Defender was appointed to represent him and a plea of not guilty was entered upon arraignment. Defendant then moved to have the case dismissed under the Fourth Term Act, and after the denial of that motion he was released on bail on July 26, 1963. Defendant was therefore in custody from February 21, 1963, to July 26, 1963, a period of more than five months, without having been tried or released on bail. Unless one of the continuances can be attributed to him, his right to a speedy trial was clearly violated.

The State contends that the continuance granted at the second hearing on April 1, 1963, which continued the ease for hearing until May 6,1963, was on defendant’s application and therefore the running of the four-month period was tolled. This issue turns on the following dialogue between the court and the defendant:

“The Court: Are you ready for a hearing ?
Mr. Brown: No, sir.
The Court: What ?
Mr. Brown: No, sir.
The Court: What?
Mr. Brown: No, sir.
Sergeant Flynn: It has to be a bring-back, your Honor.
The Court: Are you asking for a continuance too then ?
Mr. Brown: Yes.”

That this continuance was requested by defendant William Brown is confirmed by the proceedings which took place on May 6, 1963. The abstract filed by defendant reveals the following proceedings on that day:

“Mr. Houlihan: Get the record straight. Did you ask for a continuance last time, Mr. Brown ?
Mr. Brown: Yes.
Mr. Houlihan: Did you ask for a continuance last time?
Mr. Brown: Yes.
The Court: Let’s see the time.
Mr. McDonnell: It was the motion of the defendant, Your Honor.”

Defendant contends that he did not fully understand the significance of the judge’s inquiry because he was not represented by counsel and therefore his affirmative response should not be construed as a request for a continuance. It is clear, however, that the dialogue on both days was in very simple language, and defendant’s response certainly indicated that he understood the questions put to him.

Defendant relies on People v. Wyatt, 24 Ill2d 151, 180 NE2d 478. That case was distinguished in People v. Faulisi, 34 Ill2d 187, 215 NE2d 276. The court in the Faulisi case said (p 191):

“Here the record clearly shows that the defendant made the request for counsel and acquiesced in the court’s statement that the case was continued on defendant’s motion. . . .”

In the instant case the record clearly shows that the defendant was not ready to proceed with the hearing on April 1, 1963, that he told the court he wanted a continuance and that at the hearing on May 6, 1963, he confirmed that the continuance granted on April 1 was at his request. Under such circumstances, the running of the four month statute was tolled.

Judgment affirmed.

SULLIVAN, P. J. and DEMPSEY, J„ concur.


author: MR. JUSTICE ENGLISH

text:
    Joseph I. Mitchell, Plaintiff-Appellee, v. Four States Machinery Company, a Corporation, and Federal Press Company, a Corporation, Defendants. Appeal of Federal Press Company, a Corporation, Certain Defendant-Appellant.
    Gen. No. 49,534.
    First District, Fourth Division.
    August 1, 1966.
    Rehearing denied September 8,1966.

      Vogel & Vogel, and Jerome F. Dixon, of Chicago (Leslie H. Vogel and David F. Holland, of counsel), for appellant.
    Irving J. Siegal and Robert W. Rooney, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

This is -an appeal from a jury verdict and judgment against Federal Press Company for $255,000 as damages for personal injuries sustained by plaintiff while working as a punch press operator for Central Die Casting Company.

Defendant manufactured and delivered to Central Die Casting Company, on December 27, 1956, a one-hundred ton punch press, completely wired and assembled, to be used to stamp metal television frames. The press was installed for operation sometime in January 1957, by employees of Central. The press operated without incident for almost five years, except for a fire in the electrical control box in 1961, which is without significance in this case.

Plaintiff was employed as a punch press operator for Central and had operated the press in question on various occasions over a period of approximately four years up to the time of the accident. On October 3, 1961, after performing his work as usual for approximately two hours that morning, plaintiff left the press for a coffee break while a substitute continued its operation. Plaintiff returned ten minutes later and proceeded to punch out three television frames. He placed the fourth frame on the punch press, hit the motivating buttons and the ram of the press came down and went up. Plaintiff reached into the bed of the press in customary fashion to remove the stamped frame from the die, when the ram came down again, and then kept going up and down continuously. Woodson, a fellow employee working next to plaintiff, ran to the press and turned the switch, halting the continuous operation of the ram. Both arms of plaintiff had been severed below the elbows.

Analysis of the operation and composition of the selector switch block on the press in question is a prerequisite to determination of the merits of this case. The operation of the selector switch is controlled by a knob on the front of the block, which may be turned right or left (either clockwise or counterclockwise) from one to another of three different positions. The knob actuates a cam which in turn causes a simple metal crossbar to move either right or left, depending on which way it is turned. The cam is basically a circular piece of plastic with inclined planes across its surface. These inclined planes allow the crossbar to move to different positions of rest on the cam. Each position on the cam represents a different operation of the press. There is a name plate, or dial, attached to the outside of the selector switch which has three words on it signifying the three different operations: “once,” “inch” and “continuous.” When functioning properly, with the selector switch at the “once” position, the ram would move in a single down-and-up stroke and stop; at the center “inch” position the ram would move only so long as the operator would hold down both of two control buttons, and would stop on release of either; at the “continuous” position the ram would move down and up continuously.

Over objection by defendant, a photocopy of a wiring diagram or blueprint, the original of which was delivered by defendant with the machine, and subsequently destroyed, was admitted in evidence as a plaintiff’s exhibit. The wiring of the switch determines the operation of the machine, and if the switch were properly wired in accordance with the diagram, the dial of the switch would correctly register the operation in which the press was engaged. (For present purposes it is assumed that the switch was not wired for the inch operation at all.) When the selector switch, the diagram, and the experts’ testimony are analyzed it appears that tabs 1 and 24 were to be wired to the front terminals, while tabs 1 and 25 were to be wired to the rear terminals. Under this wiring arrangement, when the electrical connection was made to the rear terminals, a continuous operation would result. At such a time the crossbar would be at the highest position on the cam. If, for any reason, the crossbar were to slip from this position, a spring load device would cause the crossbar to fall to the lowest position on the cam, a once operation would result, and the machine would stop. This was a safety feature of the control, because under such an arrangement any slipping from position by the crossbar would have been to the once position. Obviously, an operator standing clear of the machine for an expected continuous operation would not be injured by an unexpected stopping of the ram. If the wiring were correctly done in accordanee with the diagram, the once operation would have occurred when the crossbar was in the lowest position on the cam and any slipping of the bar while in that position would therefore have had no effect on the operation of the machine; by slipping from the once position the crossbar could not have engaged the continuous operation, because to do so would require it to move upward to the highest position on the cam, which it could not do against the force of gravity and against the opposite pressure of the spring.

The gist of defendant’s negligence, as alleged by plaintiff, is the faulty wiring of one of the selector switch blocks. Specifically, it is claimed that tabs 1 and 24 (the once cycle) were incorrectly wired to the rear terminals instead of the forward terminals, and tabs 1 and 25 (the continuous cycle) were incorrectly wired to the forward terminals. This meant that when the control knob pointed clockwise to “continuous” the machine operated in the “once” cycle, and vice versa. The net result of such “reversed” wiring was to remove the safety feature otherwise present if wired according to defendant’s diagram. Under proper wiring, a slight release of the switch block spring pressure could only cause the electrical connection to produce a once operation and stop the machine, whereas, under the alleged miswiring, if the spring pressure were released, the press would cycle continuously. Moreover, such “reverse” wiring allegedly caused extensive spring tension in the switch block through customary use in the once operation and made it inherently and potentially dangerous to an operator of the press. Such wiring allegedly made it inevitable, after an extended period of operation, that the cam would become worn and, by slippage of the crossbar, would cause a sudden and unexpected change in the operation from the once cycle to the continuous cycle. As a further argument pointing toward defendant’s negligence, plaintiff contends that proper wiring of the inch position on the selector switch (which, it is agreed, was omitted entirely from the switch in question) would have served as an additional safety factor since, even under “reversed” wiring of the once and continuous operations, release of the spring pressure would have resulted in the movement of the crossbar only so far as the middle or inch position on the cam, a position of safety.

Defendant contests the issue of liability only. It contends that plaintiff failed to prove his case, and that defendant’s motions for directed verdict and for judgment notwithstanding the verdict should have been allowed. Alternatively, defendant claims that the verdict was contrary to the manifest weight of the evidence and that there were trial errors requiring a new trial.

Four witnesses employed by Central testified on behalf of plaintiff concerning the press: Woodson, Rudle, Cesky and the plaintiff himself.

Testimony of plaintiff

He started working for Central in 1955 as a punch press operator. When he operated the press in question he would put the television frames in the die, take a hose and blow clean the top of the die and oil it, set the frame on the die, and then, using both hands, press both of the activating buttons at one time to cause the ram to come down. If he took either hand off one of the buttons the ram would not move. On the day of the accident, the pointer on the dial of the switch was pointed to the right, as it had been at all times when he operated the press in question. He never saw the pointer in any other position. Immediately before the accident he pressed the two buttons and the ram came down and went back up and stayed. He reached in with both hands to take the television frame off the die and put it on the inspector’s table. This required him to put both hands and arms inside the die. He thought he had the frame in his hands until he looked down and saw that his arms were cut off. He then realized that the ram was going up and down continuously.

(On cross-examination) During all his previous work on the press it had operated properly, and to his knowledge it was the best press in the plant, although he was not a technician and had nothing to do with repairs.

(A significant point in plaintiff’s testimony is that at the time of the accident the switch was pointed to the right in the position which indicated “continuous” but which, according to plaintiff and others, had always produced a “once” cycle operation. It is undisputed that another employee stopped the action of the ram by turning the switch, and when the switch was removed from the press it was pointed to the right. The inescapable inference is that the sudden change in operation of the ram was caused by a movement of the switch from right to left. The parties differ, however, in their theories as to how this came about.)

Testimony of Oscar Woodson

At the time of the accident he was employed by Central as a die caster and was molding television frames. He was working at the punch press next to plaintiff. Upon his return from the 10:00 a. m. coffee break, he heard plaintiff cry out, whereupon he stood up and saw the ram of the press going up and down. Plaintiff was swinging his arms which were “hanging by the skins.” Woodson turned the press off by turning the switch, although he didn’t know which way he turned it. He was not employed by Central at the time the press was delivered to the plant by defendant. Woodson had operated the press in question when the regular operators were not there. On those occasions the press had operated all right.

Testimony of Emil Rudle

He worked for Central for twenty-nine years as a punch press operator. When the press in question was delivered by defendant, he helped Paul Michelek, the die setup foreman, set a die in the press. (Michelek was not living at the time of trial.) Rudle’s testimony was somewhat confused as to the date when the die was set. On direct examination he testified that it was set in January of 1957, while on cross-examination he indicated that the date was December of 1957. Since the record indicates that the press was delivered to Central in December 1956, it would appear that the December 1957 date was in error. In any event, we do not consider the discrepancy to be of any consequence. There seems to be no question but that Rudle helped set the first die in the press.

Rudle further testified that, with the dial of the selector switch set at inch, the press would not operate; the ram would not move down. With the dial of the selector switch set to the extreme right at continuous, the press did not operate continuously but instead the ram performed the once operation, moving down and up only once before stopping. When he turned the selector switch so that the dial showed once, the press performed a continuous operation. After this initial test and at all times when he operated the press, he never had occasion to require a continuous operation; he thereafter never touched the switch.

Testimony of Rudolph Cesky

Cesky was the maintenance foreman employed by Central at the time of the accident. He helped install the press early in January 1957, at which time there was no die set in it. He first put an electrical line into the press to energize the box and motor. He alone performed all electrical work on the press from its delivery through the date of the injury to plaintiff. On direct examination Cesky testified that upon delivery of the press, he inspected it simply by starting and stopping the motor to see that it ran in the right direction. He and Michelek ran the press down and up only once. He never changed the selector switch on the press in question after its delivery. The selector switch, introduced in evidence as a plaintiff’s exhibit, was the same switch that was taken off the press after the accident. He didn’t know whether the inch position on the selector switch was “hooked up.” On further direct questioning, however, he stated that the wires were there but it was not hooked up in the switch and the machine did not work in inch position.

On cross-examination Cesky said that it was his job to install the press and determine whether it was in operating condition. At installation all he did was to get power into the machine to see if it ran the right way. The selector switch was set at the once phase and he did not change it, operating the machine through only one cycle down and up. He made no other tests, and did not try the press on the inch setting. Confronted with his pretrial deposition, Cesky then testified that he had tested the press on both the once and the inch settings, but not when set at continuous. He believed at that time that the press was operating properly. Again, after a short in the transformer in May of 1961, he tested the control switch on inch and once. It functioned properly and there had been no damage done to it. The selector switch in evidence was the one on the press when delivered and had not been removed until after the accident.

Further on cross-examination Cesky said that if the switch was not wired in the inch position the ram would nevertheless function by “inching” down if the operator’s hands were held on the buttons. This, he said, was what happened when he and Michelek tested the press. The ram functioned according to the dial at the inch and once positions. While he didn’t open the switch box, he observed the part of the wiring on the posts which stuck out of the box and did not find it improper, although he did not know whether it was the way it should have been. He explained that when he had said on direct examination that at the time of installation the wires to the inch position were not connected, he was referring to the fact that “there was one wire still off in the box and taped up.”

Testimony of John Blair

He is an Associate Professor of Mechanical Engineering at the Illinois Institute of Technology and was called as a witness on behalf of plaintiff. His qualifications to testify as an expert were essentially unchallenged.

Blair took apart and examined the selector switch which had been removed from the press in question. He then proceeded to describe its function and operation in great detail. The operation is controlled manually by a knob on the outside of the front part of the switch, which knob may be turned to either right or left positions. The knob is fastened to and thus controls the movement of a cam, which is a circular device with inclined planes across its surface upon which a metal crossbar rests. As the knob is turned, the crossbar rides up or down the inclined planes until it reaches a detent position, or depression in the surface of the cam, into which it falls and holds until actuated further. In full clockwise position the switch connects up the rearmost terminals (identified as terminals 1 and 24) and in the counterclockwise position it connects up the forward-most terminals (identified as terminals 1 and 25).

The name plate on the switch indicates three positions for the knob: “once,” at the full counterclockwise setting; “inch,” at the center setting; and “continuous,” at the full clockwise setting. The wiring diagram in evidence indicates that at the once position terminals 1 and 24 would be connected, and at the continuous position terminals 1 and 25 would be connected. On the switch itself, however, the wiring was exactly opposite. When the knob pointed to once, terminals 1 and 25 were connected and such a connection would cause a continuous operation of the machine. Conversely, when the knob of the switch pointed to continuous, terminals 1 and 24 were connected, resulting in operation of the machine on the once cycle.

When the knob of the switch was in the full counterclockwise setting, the crossbar was at its lowest position, and, conversely, when the knob was in the full clockwise setting, the crossbar was at its highest position. Because of spring pressure, the knob of the switch would not turn from the counterclockwise to the clockwise position of its own accord, but would require the application of some force to overcome the pressure of the spring. If, however, the knob were to be released or turned even slightly from its detent position at the full clockwise setting, it would fall back into the full counterclockwise setting of its own accord.

The plastic cam had become worn in the detent portion at its highest level, indicating that this position on the cam had been subject to considerable use. It was at this position on the cam that the press would operate in a once cycle although the knob would be in the full clockwise setting, indicating “continuous.”

The selector switch could not be placed in the “inch” position and result in an inching of the press, nor could the press be “inched” in the “once” position. The switch would have to be taken apart and reassembled differently to function in three positions instead of two. This could be done without additional parts. The wiring diagram in evidence indicated a position for “inch,” but did not show any wiring hookup for the inch operation. The switch therefore had only two operating positions, “once” and “continuous.”

Testimony of Burgess Jennings

He is a Professor of Mechanical Engineering and Associate Dean at the Technological Institute of Northwestern University. He was presented as an expert witness on behalf of defendant, and his qualifications were not questioned.

Jennings, like Blair, described in detail the make up and operation of the selector switch in question, making reference to the exterior knob, its different positions on the dial, the location of connector points 1 and 24, and 1 and 25, and their functions. He also described the cam and the crossbar, or pin, and their relationship to each other in three different positions. He noted, however, that on both the switch itself and on the wiring diagram there was no circuitry in between the front and rear points, and therefore no wiring for the middle or inch position. He further stated that the wiring diagram showed terminal 24 connected to the once position and terminal 25 to the continuous position. In all of this explanation the testimony of Jennings was consistent with that of plaintiff’s witness Blair.

Jennings also pointed out, as had Blair, that the switch could be taken apart and reassembled so as to operate in three, rather than two, positions. Jennings further stated that in a reassembling of the switch in a two-position operating condition, the cam could be turned ninety degrees so as to reverse the location of the highest and lowest crossbar positions on the cam, and thus to reverse the once and the continuous cycles as designated on the knob dial.

When he took the switch apart he found spicules of metal adhering to the plastic part of the switch front, and he noticed that a portion of the switch front had been broken off inside.

Testimony of Robert Noyes

He is employed by defendant as an engineer but does not have an engineering degree.

The switch on the press in question at the time of its delivery to Central was an Arrowhart-Hegeman three-position selector switch. When he saw the press on the day after the accident, the contact block of the switch was an Arrowhart but the actuating control knob of the switch was made by Allen-Bradley. Noyes said, however, that normally the control parts made by two different manufacturers are interchangeable and can be used with the same contact block. So far as he could see there was no difference between the Arrow-hart and the Allen-Bradley control knobs.

The switch in evidence (being the same one examined by the expert witnesses) was in substantially the same condition as it had been when Noyes saw it attached to the press on the day after the accident. He was told at that time that the press had not been touched after the accident and prior to his arrival. The knob was pointing to the right-hand position.

He found that the selector switch would not hold in the middle, or inch position, and said that the wiring diagram did not provide for any terminals at the inch position. He stated, however, that it would be possible to start and stop the machine in such a way as to accomplish a movement equivalent to an inching operation.

Defendant contends in this court that plaintiff failed completely to prove his alleged cause of action, so that defendant was entitled to a directed verdict or a judgment in its favor notwithstanding the verdict. As its second major contention, defendant argues that the verdict and judgment were contrary to the manifest weight of the evidence. The rules governing this court’s consideration of the case under these two circumstances are too well-settled to justify citation of authority.

We conclude from our study of the record that there was sufficient evidence supporting plaintiff’s cause of action to require submission of the case to the jury. In other words, there was evidence which, in our opinion, tended to establish that the press had been delivered by defendant with a selector switch which was negligently miswired in such a way as to eliminate safety features otherwise present and which proximately caused plaintiff’s injury.

We also conclude that the manifest weight of the evidence is not to be found on the side of defendant. It is true that plaintiff’s witness Cesky did testify that he examined the press upon delivery and that it tested properly in both the once and the inch positions. Defendant urges us to accept this testimony as manifestly outweighing all other evidence to establish defendant’s speculation that someone must have taken the switch apart after delivery and reassembled it differently. This we cannot do. Cesky’s own testimony contains contradictions to this proposition, as does Rudle’s and, essentially, all the rest of plaintiff’s evidence on the issue of liability. Absent any more precise testimony as to the condition of the wiring on the switch at delivery, we are unable to decide that the jury’s verdict on this issue was clearly wrong.

Because of our view as to the weight of the evidence we do not consider pertinent the cases which defendant relies on in this regard. We agree with defendant that the mere happening of an accident does not raise a presumption of negligent manufacture, and that plaintiff must carry the burden of proving his case. Rotche v. Buick Motor Co., 358 Ill 507, 511, 512, 193 NE 529, unlike the instant case, was one in which there was voluminous evidence of inspections in the course of manufacture, and at the time of delivery. Watts v. Bacon & Van Buskirk Glass Co., 18 Ill2d 226, 231, 163 NE2d 425, involved a glass door — not an inherently dangerous article — and plaintiff’s claim was that defendant should have installed tempered glass in the door instead of plate glass, even though plate glass was customarily used. In Moss v. Wagner, 27 Ill2d 551, 555, 190 NE2d 305, the court found that the evidence presented a factual question for the jury, and that the entering of a judgment notwithstanding the verdict in plaintiff’s favor had been improper.

We also agree with defendant that the causal relation of a manufacturer’s negligence to an injury may be broken by the intervention of a superseding cause. In the case cited by defendant for this point (Carter v. Yardley & Co., 319 Mass 92, 64 NE2d 693, 697) the reviewing court found that there was no evidence of such a superseding cause. We think that the same situation obtains here, but if it could be said that there is any evidence of such a superseding cause, it would at most have raised a question of fact for determination by the jury.

We would agree also that ordinarily the use of an article with safety for a lengthy period of time renders unreasonable an inference that the article contained a manufacturing defect. But we also believe that consideration must be given to the character of the alleged defect to determine whether it be of such a nature as to cause a delayed reaction. Defendant relies on Miszczak v. Maytag Chicago Co., 11 Ill App2d 496, 501, 138 NE2d 52, on this point. There the court held, however, that neither in the facts of record nor in the plaintiff’s brief had there been a suggestion of “any possible cause” of the alleged function failure of a washing machine’s wringer tension release mechanism. In the case before us there is not only an explanation of the delayed misfunction of the selector switch, but there is also adequate evidence to support plaintiff’s theory of the case. The same distinction is applicable to the case of Brooks v. Hill-Shaw Co., 117 F2d 682, 685.

Defendant attaches significant weight to the fact that the switch control knob found on the press at the time of the accident was not the same knob which had been on the switch at the time the press was delivered. While the control knob itself does not, of course, affect the actual operation of the switch, this argument is made in furtherance of defendant’s contention that we must infer that the entire assembly of the switch, including its contact block, had been “tampered with” after delivery. We do not believe that such an inference is required, especially in view of the testimony of defendant’s witness Noyes who said that the control knobs of the two manufacturers were interchangeable and that he could see no difference between them.

As a ground for reversal, defendant assigns the admission into evidence of the wiring diagram which we have referred to above. As stated in defendant’s brief, the original wiring blueprint came from defendant and was delivered with the press. Vincent Pawlak, a witness for plaintiff, who was a draftsman employed by Central, testified that he made some changes on the blueprint in October 1961 after the accident. The exhibit in evidence is a photocopy made by Pawlak from the original blueprint including the several changes which he had made. The original blueprint was thereafter destroyed.

Defendant’s objection to this diagram is that the witness did not make sufficiently clear precisely what changes he had made on the diagram so as to identify what he meant in referring to the changes he had “indicated.” This objection was overruled, and we think properly so. The diagram adequately shows on its face what the indicated changes were. Plaintiff does not seek to place any reliance upon the changes in the diagram, and its use in evidence was basically for the purpose of permitting questions to be asked of the expert witnesses concerning the diagram in its original form. When the experts — both plaintiff’s and defendant’s — were testifying about the wiring of the switch in comparison with the wiring arrangement in the diagram, they were instructed by both court and counsel to ignore the changes on the diagram. Neither witness expressed any difficulty in reading the diagram on that basis. Defendant’s expert witness Jennings was specifically told by defense counsel to “ignore those changes,” and he proceeded to testify accordingly. Plaintiff’s witness Blair was treated similarly. A review of their entire testimony indicates clearly to us that both professors were outstandingly intelligent and articulate, and would have had no hesitation in stating any problem they might have had in identifying the changes they had been told to ignore, if any such problem had existed.

Under all these circumstances, we think that the cases relied on by defendant for this point are not applicable. Gage v. City of Chicago, 225 Ill 218, 80 NE 127; Hutchison v. Kelly, 276 Ill 438, 114 NE 1012; Waggoner v. Clark, 293 Ill 256, 127 NE 436. In each of these cases the proponent sought to rely upon the document in its altered form, and in that situation was required to make adequate explanation of the alterations. As we have mentioned, this is not the situation in the case before us.

At the conference on jury instructions defendant made timely objection to one of the instructions tendered by plaintiff and given by the court. That instruction reads:

It was the duty of the defendant before and at the time of the occurrence, to use ordinary care for the safety of the plaintiff.

Defendant now assigns the giving of this instruction as reversible error on the ground that the only negligence charged to defendant was in connection with the manufacture of the press some five years prior to the accident and that defendant owed no duty to plaintiff at the time of the occurrence.

When the point was raised at trial, counsel for plaintiff argued that the time of the accident should be covered, otherwise the jury might be misled into thinking that defendant owed no duty to plaintiff when the press was manufactured, since plaintiff “wasn’t in the picture at the time.” The court apparently agreed, and took the position that the instruction was proper because “it is a continuing proposition.”

We are aware of the principle that it is error to instruct the jury on an issue not raised by the pleadings. Heideman v. Kelsey, 7 Ill2d 601, 606, 131 NE2d 531, cited by defendant. We also agree with defendant that the mere fact that the instruction is found in IPI (No. 10.04) can be of no real assistance to plaintiff here, because, as we have frequently held, any particular IPI instruction, however good in form, must first be shown to be applicable before it should be given in any specific case.

We believe, however, that the giving of the instruction in this case did not constitute reversible error. The issue had been raised by the complaint in which it was charged that defendant negligently manufactured the press (as to its wiring, etc.) and delivered it in a defective and dangerous condition; that the press continued to be defective and dangerous to the time of the accident; and that plaintiff’s injury was a proximate result of defendant’s negligence in design, manufacture, etc.

The issue was also clarified in the closing arguments of counsel and, we believe, by the instructions of the court when considered all together. A fairly long and detailed “issues” instruction was given to the jury in which plaintiff’s claim as to defendant’s negligence was set forth with considerable specificity. In this instruction it was made perfectly clear to the jury that plaintiff was charging defendant with the improper and negligent design and manufacture of the selector switch in question. Defendant’s denial of the charges was also set forth accurately and specifically.

We do believe that the instruction complained of could have been phrased better. Looking at the instructions as a whole, however, we do not see reversible error. Reivitz v. Chicago Rapid Transit Co., 827 Ill 207, 213,158 NE 380.

Defendant also urges upon us that a fair trial was denied to defendant because of improper and prejudicial statements made by both court and counsel during the trial and by plaintiff’s attorney in his closing argument to the jury; citing Belfield v. Coop, 8 Ill2d 293, 134 NE 2d 249; Crutchfield v. Meyer, 414 Ill 210, 111 NE2d 142; and other cases, including this court’s opinion in Bulleri v. Chicago Transit Authority, 41 Ill App2d 95, 190 NE2d 476.

In the course of the cross-examination of plaintiff’s witness Cesky the following transpired:

Q. If the switch was not wired in the “inch” position, the ram wouldn’t function in that fashion?
A. Yes, it would. Yes, I did test this ram in “inch” position and in “once.” Yes, and in “inch” position, it functioned by inching down.
Q. So that when you tested this switch on the occasion of your installation and examination of the press you turned it to “inch” position and the ram inched down ?
A. If you hold your hand on it, it comes down completely.
Q. I didn’t--.
Mr. Siegal (Plaintiff’s attorney): I’ll ask that the answer stand. It is important, if the court please. Counsel is trying to cover that up.

At that point defendant’s attorney moved for a mistrial, and argues here that the remark unjustifiably called into question his good faith and ethical conduct to such an extent that it prejudiced his client’s case. While we consider counsel’s comment to have been ill-advised, and we do not condone it, we nevertheless do not attribute to it the importance or the consequences which defendant urges upon us. We do not consider it ground for reversal. Nelson v. Union Wire Rope Corp., 39 Ill App2d 73, 98, 99, 187 NE2d 425; Moore & Co. v. Champaign Nat. Bank, 13 Ill App2d 232, 246, 247, 141 NE2d 97.

In his closing argument to the jury plaintiff’s attorney commented upon the failure of defendant to have produced as witnesses the employees of Central who had, in fact, testified on behalf of plaintiff. This remark was improper, and it was absurd to argue, in effect, that an adverse inference should arise against defendant under the circumstances of this case. Brichacek v. Hampton, 54 Ill App2d 284, 297, 203 NE2d 737; McGinnis v. McGinnis, 211 Ill App 240, 245. We do not, however, consider this episode to have been sufficiently prejudicial to defendant to warrant reversal of the judgment.

We take the same position in regard to an admonishment by the court during trial that defense counsel should not “make a speech” in the course of stating his objection to a question put by plaintiff’s attorney. If this was an unfair comment by the court, and we are inclined to think it was, it constituted, in our opinion, a harmless error. Anderson v. Inter-State Business Men’s Acc. Ass’n of Des Moines, Iowa, 354 Ill 538, 550,188 NE 844.

Finally, defendant complains about the questioning of a witness by plaintiff’s attorney which elicited testimony that a few days after the accident defendant had replaced the selector switch on a second one of its presses (of the same type as the one in question) at Central’s plant. The cases relied on by defendant express the view that post-accident alterations or corrections in conditions pertinent to the alleged injury should not be discouraged by making them appear as admissions, and that this principle has a basis in sound public policy. Howe v. Medaris, 183 Ill 288, 55 NE 724; Grubb v. Illinois Terminal Co., 366 Ill 330, 8 NE2d 934; Day v. Barber-Colman Co., 10 Ill App2d 494,135 NE2d 231.

Plaintiff’s reply to this point is that the court had stated, at the first of several timely objections, that the matter was immaterial. Plaintiff’s attorney was thereafter permitted to continue the questioning, however, and, over repeated objections was allowed to show that a different kind of switch had been substituted on both presses. (No objection was made concerning the change of switches on the press in question because the first switch was removed for examination by the experts and for introduction into evidence.) Plaintiff also says that defendant’s objections were invalid because defense counsel had previously opened the door, in effect, by asking whether the original switches on the two presses had been the same and whether they had not both worked satisfactorily for some years, the answers being affirmative in both instances.

We are not impressed with plaintiff’s response on this point. We believe the court’s rulings in this regard were erroneous, but not of sufficient gravity to deprive defendant of a fair trial and thus to warrant reversal of the judgment.

As to these last several contentions in which we recognize nonreversible error, we refer again to what we said in Nelson v. Union Wire Rope Corp., 39 Ill App 2d 73, 98, 187 NE2d 425, to the effect that there is not likely to have been a hotly contested jury trial, such as this one “in which there were not some errors committed by the trial judge and some conduct on the part of ardent advocates which was not entirely proper. In so stating, we do not believe that we encourage the lowering of professional standards, but merely place in their proper perspective the mistakes which both court and counsel will ever seek to avoid, but probably never with complete success.”

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER, P. J. and MCCORMICK, J., concur.

       In a previous trial, which had resulted in a mistrial as to defendant Federal, there was a directed verdict in favor of the other defendant, Four States Machinery Company.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Walter T. Gardner, Defendant-Appellant.
    Gen. No. 49,612.
    First District, First Division.
    August 1, 1966.

      David G. Burden, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, James Klein and Robert Karton, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered. the opinion of the court.

After a jury trial, defendant was found guilty of the offense of unlawful possession of a narcotic drug. He was sentenced to the penitentiary for a term of 5 to 10 years. On appeal, defendant’s sole contention is that it was error to deny his motion to quash the indictment.

On August 9, 1963, defendant, after a short chase, was stopped by police officers for a traffic violation. He had no driver’s license and showed the officers “a handful of tickets.” He was then arrested and his car searched. A packet of white powder was found under the floor mat on the driver’s side. During the trial, a chemist testified that the packet contained “codeine hydrochloride —a narcotic drug.”

The indictment charged that defendant “committed the offense of possession of a narcotic drug, in that he knowingly possessed and had under his control, otherwise than as authorized in the Uniform Narcotic Drug Act of said State of Illinois then in force and effect, a quantity, (the exact quantity of which is unknown to said Grand Jurors,) of a certain narcotic drug, to wit: opium that is to say, codeine, hydrochoZride [Emphasis supplied] contrary to the Statute, . . . .”

That part of the Uniform Narcotic Drug Act in question states:

“Ch 38, § 22-2 (r) (4)
“ ‘Opium’ includes morphine, codeine, and heroin, and any compound, manufacture, salt, derivative, mixture, or preparation of opium, but does not include apomorphine or any of its salts.”

Prior to trial, the court denied defendant’s motion to quash filed January 8,1964. The substance of defendant’s motion was that the indictment did not state an offense. Its allegations included “that subject Indictment does not charge a crime within the provisions of chapter 38, article 22, paragraph 2-16, of the Illinois Revised Statutes, Smith-Hurd Edition, 1957, in that there is no listing on the words ‘codeine, hydrocholride’ [Emphasis supplied] listed under the definition of narcotic drugs.”

At the hearing of the motion, defendant’s counsel argued that there was no such terminology as “hydrocholride” in the statute, and “the way it is drawn, with the comma after the word codeine, ... I don’t think anybody can know, that they are talking about either codeine, and this ‘hydrocholride’ is a derivative thereof, or they are talking about two different types of narcotics. Looking through the statute, as I mentioned to the Court, I find nothing in here at all that talks about the type of narcotic known as ‘hydrocholride.’ ”

In denying the motion, the court stated, “But even if the word hydrochloride, properly spelled, were stricken, and the fact that the State is alleging that he had a derivative of opium in some form, to wit, codeine, which is covered in the statute — now, the fact that there is some diluent or some altered form of codeine, it is still codeine. And the fact that there is a comma after codeine, the State is intending to show that some form of codeine was in this man’s possession.”

On appeal, defendant argues that “the Court took it upon itself to determine whether or not codeine hydrochloride was or was not an excluded ‘apomorphine or any of its salts.’ Nowhere in the record does the Court’s qualifications as a chemical expert appear. Further, the Court did not base its ruling on Defendant’s motion on any evidence before it relevant to the point of whether codeine hydrochloride was or was not within the purview of the statute.” In support, defendant cites Hays v. Place, 350 Ill App 504, 113 NE2d 178 (1953), which we find not to be in point.

Defendant’s motion to quash (motion to dismiss charge) presented an issue of law, and it was not necessary nor would it have been proper on the hearing of that motion for the trial court to hear evidence on the question of whether the words “codeine” or “codeine, hydrochloride” stated an offense “within the purview of the statute.” The terms of the statute and the terms of the indictment were the guidelines to be used by the court. See § 114^1(8), Motion to Dismiss Charge, Ill Rev Stats 1963, c 38; People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 323 (1965).

Whether the packet found in defendant’s possession contained a narcotic drug was a question of fact and as such involved a matter of proof at the trial and not at the hearing of the motion to dismiss.

The indictment described the narcotic drug as “codeine, hydrocholride,” and the statute specifically includes “codeine”; therefore, the charge as stated was within the statutory definition. The addition of the word “hydrocholride,” obviously a misspelling of “hydrochloride,” presumably was intended to modify “codeine,” and this term was used during the trial by the chemist in describing the contents of the packet as “codeine hydrochloride — a narcotic drug.” Granting “hydrochloride” was misspelled, it is not possible that defendant did not plainly understand the nature of the offense with which he was charged, “possession of a narcotic drug,” so he was in no way prejudiced by the defective pleading. See § 111-5 (Formal Defects in a Charge), Ill Rev Stats 1963, c 38, effective January 1, 1964; People v. Wood, 318 Ill 388,149 NE 273 (1925).

Furthermore, it was not necessary that the indictment negative the exceptions contained in the statute. We so hold, even though there was no statutory provision to that effect between 1957 and 1964. See § 192.21 repealed 1957, and § 111-5 (e) effective January 1, 1964, Ill Rev Stats c 38.

For the reasons given, we find without merit defendant’s contention that his motion to quash the indictment should have been sustained. Therefore, the judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Affirmed.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


author: MR. JUSTICE BURMAN

text:
    Village of Park Forest, a Municipal Corporation, Plaintiff-Appellant, v. Jay D. Bragg, Defendant-Appellee.
    Gen. No. M-50,756.
    First District, First Division.
    August 1, 1966.

      Richard W. Hall, Village Prosecutor, and Henry X. Dietch, Village Attorney, of Park Forest (Richard W. Hall, of counsel), for appellant.
    No appearance made for appellee.
    Sidney R. Drebin and Marvin E. Aspen, amici curiae.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

In a proceeding before a magistrate in the Village of Park Forest, the defendant was convicted of driving while under the influence of intoxicating liquor, and of careless driving, in violation of two ordinances of that municipality. On the conviction for driving while under the influence of intoxicating liquor, defendant was fined $100, the minimum fine permissible under the ordinance, and he was fined $10 on the conviction for careless driving, with an additional $5 costs for each violation. The court suspended all fines and costs, however, with no provision as to the duration of the suspension. The Village brings this appeal, charging that after finding the defendant guilty and assessing the penalties the court was without power to suspend the fines.

The defendant has not appeared in this appeal, although the record shows his trial counsel was served with the notice of appeal. We appointed Sidney R. Drebin and Marvin E. Aspen as amici curiae, and they have submitted a brief and have argued orally for the proposition that the trial judge has, or should have, the power to suspend penalties in ordinance violation cases.

The parties have not called to our attention, nor have we found, any Illinois case passing upon the validity of a trial court’s suspension of penalties for an indefinite period in an ordinance violation case. Nor are there statutory provisions authorizing or prohibiting this practice. This is therefore a case of first impression.

The legal problem posed by this appeal is a product of the difficulty the Illinois courts have experienced in classifying ordinance violation prosecutions either as wholly criminal proceedings, as wholly civil proceedings, or as “quasi-criminal” proceedings. If an ordinance violation prosecution can properly be classified as a criminal proceeding, and subject to all the rules which apply thereto, several conclusions are at once apparent. First of all, the municipality would not have the right to appeal an adverse decision, under Supreme Court Rule 27(4), (Ill Rev Stats, c 110, §101.27(4) (1965)); in fact, we would be without jurisdiction to hear this appeal. Secondly, it is established that in a criminal case, after a finding of guilty, the trial judge cannot suspend the sentence for an indefinite period except under probation proceedings as provided by statute. People ex rel. Smith v. Allen, 155 Ill 61, 39 NE 568; People ex rel. Boenert v. Barrett, 202 Ill 287, 67 NE 23. The United States Supreme Court announced a similar rule for the federal courts in Ex Parte United States, Petitioner, 242 US 27. Nor can the trial judge impose a penalty which differs from the mandatory penalty established by the Legislature, People ex rel. Ward v. Salter, 28 Ill if ordinance violation prosecutions are criminal proceedings, the trial judge can make use of probationary remedies, and therefore the power to suspend penalties indefinitely would be somewhat redundant.

But with the exception of a recent case, it seems well-established, in Illinois, that an ordinance violation prosecution is not a criminal proceeding and is not subject to the rules applicable thereto. In Village of Maywood v. Houston, 10 Ill2d 117, 139 NE2d 233, our Supreme Court ruled that the Village could appeal from an acquittal in a prosecution for violation of an ordinance regulating the operation of trailer camps. The court stated:

The case raises anew the question of whether a proceeding of this kind is to be considered a civil or a criminal case. The following is a succinct summary of the applicable Illinois cases: “An action to recover penalties for violation of city ordinances or regulations is civil in form, although quasi-criminal in character. The action ordinarily is termed a civil action, and not a criminal prosecution, although it has been stated that it may more properly be designated as quasi-criminal.” 10 ILP, Cities, Villages, etc., § 1193. (10Ill2d at 119).

In City of Decatur v. Chasteen, 19 Ill2d 204, 166 NE2d 29, the court held that, “An action to recover a penalty for the violation of a municipal ordinance, though quasi-criminal in character, is civil in form and is ordinarily-termed a civil action and not a criminal prosecution.” (19 Ill2d at 216). And in City of Chicago v. Lewis, 28 Ill App2d 189, 171 NE2d 70, this court held, “Under the law of Illinois, a suit to recover a penalty for violation of a city ordinance is governed by the rules of pleading and the laws relating to civil practice, and not by the rules and laws applicable to criminal proceedings.” (28 Ill App2d at 191).

A recent case from the Appellate Court for the Fourth District, however, appears to conflict with this line of authority. In City of Gibson City v. McClellan, 61 Ill App2d 218, 209 NE2d 363, the defendant in an ordinance violation case had been discharged by the trial court because he was not brought to trial within 120 days, as required by the Fourth Term Act (Ill Rev Stats, c 38, § 103-5 (b) (1963)), and the City appealed. The court held that under the provisions of Supreme Court Rule 27 (4) it was without jurisdiction to hear the appeal, thereby holding implicitly that the ordinance violation prosecution was a criminal case. Both the Village Prosecutor and the amici in the case at bar have urged that the Gibson City decision is erroneous. We are of the opinion that that case can be distinguished on the grounds that the parties thereto entered into a stipulation as to a point of law, and that stipulation was apparently accepted by the Appellate Court. The parties stipulated that the Fourth Term Act, which is contained within the Code of Criminal Procedure, applied to the violation of a penal ordinance of a city. In the case at bar, there is no such stipulation. The amici curiae have argued, and we agree, that to term ordinance violation cases “criminal” proceedings and thus to subject them to the provisions of the Code of Criminal Procedure would cause an administrative and procedural holocaust, which could not have been intended by the Legislature. If the Code of Criminal Procedure were applicable to ordinance violation cases, then the defendant in a parking meter violation case would be entitled to the entire range of procedural remedies, including an arraignment, a pretrial competency hearing, an attorney if the defendant is indigent, a bill of particulars, a list of witnesses, etc. Penal laws are not to be construed so strictly as to defeat the obvious intention of the legislature. People v. Kirkrand, 397 Ill 588, 74 NE 2d 813, cert den 332 US 839.

We fall back, then, upon the rule that ordinance violation prosecutions are quasi-criminal in character, but are subject to the rules of civil procedure. In the ordinary civil case, the party favored by a money judgment has a private right to collect that amount from the other party, and there is no occasion for the trial judge to prevent him from collecting. But we are of the opinion that ordinance violation cases present certain special features which require that a different rule be applied. Primary among these is the fact that municipalities are empowered to provide for the incarceration for periods of up to six months of persons failing to pay monetary penalties assessed in ordinance violation cases. Ill Rev Stats, c 24, § 1-2-1 (1963). Some ordinances, including one of these involved in this case, provide jail sentences and fines as alternative or as conjunctive penalties. We feel that since in ordinance violation cases the incarceration of the defendant is a distinct possibility, but since the trial judge does not have the right to grant probation, as he does in criminal cases, there are strong reasons for vesting in him discretion to suspend the penalties in a proper case. Another reason favoring the grant of such discretion is the fact that, as the Village Prosecutor admitted, the prosecuting authorities can and do request the trial judge to suspend the fine in some cases. The Village Prosecutor argues, however, that such requests by the prosecuting authorities should be a prerequisite for the suspension of fines by the court. We do not agree. While this position might well be correct in an ordinary civil case, where the plaintiff seeks to enforce a private right, it deprives the trial judge of a valuable tool in the administration of justice in cases which are in part criminal proceedings. In Flynn v. City of Springfield, 120 Ill App 266, the court characterized ordinance violation cases as follows: “It is not a mere civil suit. While it is civil in form, it is such only in form. It partakes largely of the criminal nature. The ordinances were not passed with the view of creating the relation of debtor and creditor.” (120 Ill App at 269). We feel that in a proceeding of this nature, the trial judge should have as much discretion to suspend the penalty where the circumstances warrant it as do the prosecuting authorities. Such a suspension is not an act of grace, but is the exercise of the responsibility of the administration of justice by the trial judge, in whom that responsibility is primarily vested.

In the case at bar, the court suspended the fines with no statement of his reasons for so doing. While we feel that the better practice is for the court to state those reasons for the record, we must presume on review that the trial judge, who saw and heard the defendant, had sufficient credible reason to warrant such suspension.

For these reasons, the order of the magistrate finding the defendant guilty of two ordinance violations and assessing fines, but suspending those fines, is affirmed.

Judgment affirmed.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


text:
    Mary Lenti, et al., Plaintiffs-Appellants, v. Raymond Colomb, Defendant-Appellee.
    Gen. No. 50,902.
    First District, First Division.
    August 1, 1966.
    Rehearing denied September 6,1966.
    Richard Altieri, of Chicago, for appellants.
    Francis X. Cuisinier, of Chicago, for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal from a decree of the Chancery Division of the Circuit Court of Cook County ordering that this cause be dismissed from the equity side and transferred to the law side of the court. This order was contrary to the recommendation of a Master in Chancery, who had held a full hearing in the case and had submitted a detailed report of his findings.

On September 11, 1958, plaintiffs, Mary Lenti and Angela Ebzery, who were co-owners of a restaurant business known as San-Mar Restaurant at 2535 W. 95th Street in Chicago, entered into a contract to sell the business with its furnishings, furniture, and equipment to defendant, Raymond Colomb. The contract called for the immediate payment of $1,000 earnest money, with a further cash payment of $4,000 before October 1, 1958, and required the defendant to execute a confession of judgment note for the balance of $12,500, which was payable in monthly installments until November 1, 1961, and was to be secured by a chattel mortgage on the items sold. Defendant gave plaintiffs his check for $1,000; but shortly thereafter, he stopped payment on the check, claiming that certain of the items plaintiffs had contracted to sell had been removed from the premises. Defendant subsequently made no payments to plaintiffs on the contract. After remodeling the restaurant, defendant began operating it in December of 1958.

In October of 1959 plaintiffs filed their complaint in chancery, seeking specific performance of the contract of sale, and attaching a copy thereof. More specifically, they requested that the defendant be directed to pay them $5,000 in cash plus the installments which had become due, and to execute a judgment note and a chattel mortgage. Defendant moved to strike the complaint on the ground that plaintiffs had an adequate remedy at law in the form of money damages, but this motion was denied by the court in January of 1960. In his answer, defendant admitted the execution of the contract, the fact that he had stopped payment on his check, and that he refused to execute the note and chattel mortgage. He denied, however, that the plaintiffs had surrendered possession of the furniture, furnishings, and equipment, or that he had accepted them and operated the business. He further alleged that plaintiffs had wrongfully removed chattels and assets from the premises in breach of the contract; and that plaintiffs had a full and adequate remedy, if any, at law.

Sometime during 1960, defendant sold the business and all the furnishings, furniture, and equipment. In February of 1962, the court referred the case to a Master in Chancery to take evidence and to report to the court his conclusions of fact and law. When the case was reached on the regular trial call in April of 1963, no response was made by either party, and the case was dismissed for want of prosecution. It was reinstated on May 7,1963, and referred to the Master.

In his report, filed February 8, 1965, the Master found from the evidence that the court had jurisdiction of the parties and the subject matter, and that on October 1, 1958, plaintiffs had delivered to the defendant actual or constructive possession of the premises and of all the items which were included within the contract of sale. The Master further found that the defendant was indebted to the plaintiffs in the amount of $17,500 plus interest from the dates the payments were due. He recommended that, “. . . since the time during which specific performance of the contract terms for time payments has long since expired, most of it while this matter was pending in Court, that the Court enter judgment in favor of plaintiffs and against defendant . . .” in the amount of $17,500 plus interest and costs.

Defendant filed his objections to the Master’s report, included among which was the claim that when the hearings commenced on July 15, 1963, plaintiffs’ remedy at law was adequate, and therefore, “. . . this cause should be transferred to the law side, if not dismissed.” The Chancellor, by order of August 24, 1965, sustained this exception, finding that, “. . . since the chattel mortgage became due there was no need for any Equity Action, That the Plaintiffs could only get a money judgment.” The case was dismissed from the equity side of the court and transferred to the law side, and the court found that, “. . . no just cause has been shown for the delay of any immediate appeal from this order.” This appeal followed.

In the posture in which this case reaches us, there is no question that specific performance is not now an appropriate remedy for the plaintiffs, even if it may have been such at the time the suit was filed. This is true not only because the times for payment of all portions of the purchase price have passed, and the plaintiffs’ right to collect, if any, is a present right, but also because defendant has subsequently sold the property which was to be covered by the chattel mortgage. The question posed by this appeal is whether the trial court was correct in its determination that the plaintiffs’ prayer for damages must now be pursued in a suit at law, and not in the equity court, despite the fact that the case was originally brought in equity and the equity court took jurisdiction over it.

In Alter v. Moellenkamp, 23 Ill2d 506, 179 NE2d 4, the contract purchaser of land brought suit in equity against the contract seller for specific performance. The seller, in his answer, alleged among other things that he had conveyed the subject property to a third party. Plaintiff thereupon filed an amended complaint, joining the third party as a party defendant and seeking specific performance or damages from the seller and damages from the third party. The suit was dismissed by the trial court, but on appeal the Supreme Court held that despite the fact that the court could not have decreed specific performance it should have tried the case on the alternative prayer for damages. Citing Baker v. Salzenstein, 314 Ill 226, 234, 145 NE 355, the court stated, “Where a court of equity has taken jurisdiction for one purpose, it acquires it for all purposes and will do full and complete justice between all the parties.” (23 Ill2d at 511.)

In our opinion, the same principle governs this case. At the time the plaintiffs filed their suit in equity for specific performance, the defendant had not yet disposed of the property which was to be covered by the chattel mortgage, and over half of the installment payments of the purchase price had not yet come due. The suit, seeking in part that the defendant be required to execute the confession of judgment note and the chattel mortgage specified in the contract, was therefore properly brought in equity, and the equity court properly assumed jurisdiction over it. The trial court’s recognition of the appropriateness of the suit for specific performance is evidenced by its original denial of defendant’s motion to dismiss on grounds that the plaintiffs’ remedy at law was adequate. Events occurring after the suit was filed, none of which was attributable to the plaintiffs, rendered specific performance no longer an appropriate remedy. Under these circumstances, we think the court of equity should have retained the case for consideration of plaintiffs’ claim for damages. The parties were put to a lengthy and expensive hearing before a Master in Chancery, at which all of the factual and legal issues were litigated. It would seem grossly unfair as well as unnecessary to require them to begin again in a court of law.

Defendant cites Allen v. Illinois Mineral Co., 299 Ill App 537, 20 NE2d 898. In that case the Appellate Court affirmed the Chancellor’s dismissal of a suit for want of equity where the remedy sought was a strictly legal remedy. But that case differs from the one at bar in that the court in Allen found the complaint did not state a cause of which a court of equity would have jurisdiction. 299 Ill App at 541. The action filed in that case was, from its inception, one which should have been brought at law; and when the evidence failed to reveal any basis for equitable jurisdiction, the Chancellor properly dismissed the suit. In the case at bar, however, the suit was properly brought in equity, and it was only the change of conditions after the filing of the suit which made the equitable remedy of specific performance inappropriate.

We have considered the other arguments of the defendant, and find them without sufficient merit to warrant further discussion. The order of the Chancery Division of the Circuit Court of Cook County dismissing the cause from the equity side and transferring it to the law side is reversed, and the cause remanded to the Chancellor with directions to consider the other objections made to the Master’s report.

Reversed and remanded with directions.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


text:
    People of the State of Illinois, Appellee, v. Ernest Logrove, Appellant.
    Gen. No. 50,926.
    First District, First Division.
    August 1, 1966.

      Giannis, Giannis & Georges, of Chicago (Michael P. Giannis, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Ernest Logrove, was convicted in a bench trial of assault with the intent to commit murder, and sentenced to a term in the penitentiary of not less than seven nor more than twelve years. On appeal, his sole contention is that the trial court erred in denying his petition for discharge on the ground that he was not brought to trial within 120 days after his arrest, as is required by the Criminal Code. His appeal, filed originally in the Supreme Court, was transferred here.

Defendant was arrested on October 20, 1959, and was not admitted to bail. On February 2, 1960, he was arraigned, and the Public Defender was appointed in his behalf. Defendant entered a plea of not guilty, and moved for a behavioral clinic examination and for a pretrial investigation by the Probation Department. The court granted both motions, and set the case for trial on February 15, 1960. On that date, the case was continued (for reasons which do not appear from the record) until February 18. The trial began on that date, and defendant immediately moved for his discharge on the grounds urged here. The motion was denied, and after a sanity hearing and a bench trial the defendant was convicted.

Defendant points out that February 18, 1960, the date upon which his trial began, was 121 days after the date of his arrest. He contends that under Ill Rev Stats, c 38, § 748 (1959), the statute applicable to his prosecution, he was therefore entitled to his discharge unless it could be shown that he himself had contributed to the delay in the commencement of his trial. The remainder of his brief is concerned with the question of whether his motions of February 2, 1960, for a behavioral clinic examination and for a pretrial investigation constituted a delay attributable to him.

The statute relied upon by the defendant reads, in pertinent part, as follows:

§ 748. Discharge for want of prosecution. Any person committed for a criminal or supposed criminal offense, and not admitted to bail, and not tried by the court having jurisdiction of the offense, within four months of the date of commitment, shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner. . . . (Ill Rev Stats, c 38, § 748 (1959).) (Emphasis added.)

It will be noted that the date of the commencement of the defendant’s trial, February 18, 1960, while not within 120 days after the date of his arrest, October 20, 1959, nevertheless is within four calendar months after that date. The requirements of the statute were therefore met, in accordance with the rule announced by our Supreme Court in People v. Gilbert, 24 Ill2d 201, 181 NE2d 167, cert den, 371 US 844, and followed in People v. Hurst, 28 Ill2d 552, 193 NE2d 19; People v. Denham, 33 Ill2d 599, 213 NE2d 539, and People v. Walker, 34 Ill2d 23, 213 NE2d 552. In those cases, the defendants raised the same contention made by the defendant in this case, and under substantially identical facts. Mr. Justice Schaefer, writing for the court in Gilbert, approved a method of computation wherein the period is found to expire on the date of corresponding number in the fourth month following the month of the arrest, except where the latter month does not have a date of that number, in which case the period expires on the last day of the month. 241112d at 203. He went on to state:

“We are of the opinion that the legislature meant a period of four months. That is what it said.
To uphold the defendants’ contention it would be necessary to ignore or override the explicit provision of section 1.10 of the Statutory Construction Act, which states that ‘Month’ means a calendar month, . . . unless otherwise expressed.” (Ill Rev Stats 1959, c 181, par 1.10.) (24 Ill2d at 204.)

In the case at bar, the period therefore did not expire until February 20, 1960, and defendant was not entitled to his discharge.

We note that § 103-5 of the 1963 Code of Criminal Procedure (111 Rev Stats, c 38, § 103-5 (1963)), which supplanted the statute applicable to this case, provides that the period is “120 days,” and not “four months.” Our Supreme Court made clear in People v. Denham, 33 Ill2d 599, 600, 213 NE2d 539, however, that this provision is inapplicable to prior convictions.

In view of our holding, it is unnecessary for us to pass upon defendant’s contention that his motions of February 2, I960,, did not delay his trial.

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

Judgment affirmed.

KLUCZYNSKI, P. J. and MURPHY, J., concur.