author: PRESIDING JUSTICE HEIPLE JUSTICE BARRY,

text:
    JOYCE L. KAPLAN, Indiv. and as Special Adm’r of the Estate of Yury Kaplan, Deceased, et al., Plaintiffs-Appellants, v. RAY DISERA et al., Defendants (Balmoral Racing Club, Inc., Defendant-Appellee).
    Third District
    No. 3—89—0111
    Opinion filed July 5, 1990.
    Rehearing denied August 1, 1990.

      BARRY, J., dissenting.
    Thomas E. McClure and Roger C. Elliott, both of Elliott & McClure, of Bourbonnais (Paul E Michel, of counsel), for appellants.
    O’Reilly, Cunningham, Norton & Mancini, of Wheaton (James L. DeAno, of counsel), for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

Plaintiffs brought a cause of action for damages against defendants in connection with a three-car accident on December 7, 1986. The complaint sought, among other things, recovery from defendant Balmoral Racing Club (Balmoral) under the Dramshop Act (111. Rev. Stat. 1985, ch. 43, par. 135) and for negligent construction or maintenance of entrance and exit gates. At trial, the court granted summary judgment in favor of defendant Balmoral on both issues. The trial court subsequently denied plaintiffs’ motion to reconsider. Plaintiffs appeal from the order granting summary judgment in favor of defendant Balmoral. We affirm.

According to the allegations of the complaint, Cynthia Dover, James Dover, and Ray Disera had attended a party at the racetrack during the afternoon of December 7, 1986. After the day’s racing program ended, the Dover automobile allegedly exited the racetrack parking lot via gate 4, followed by the Disera vehicle. Affidavits in the record indicate that Ray Disera was uncertain of the way to re"turn to Joliet from the track and that it was agreed that he would follow the Dover car, which he did. After turning onto the public highway, the Disera vehicle struck the Dover automobile in the rear, crossed the center line, and collided with an oncoming car driven by plaintiff Joyce Kaplan. As a result of the collision, Yury Kaplan, husband of Joyce Kaplan, was killed and passengers Jennifer Flynn and James Lehmann were injured.

The complaint in this cause included numerous counts against each defendant. Eventually the counts against Cynthia Dover, James Dover, and Ray Disera were dismissed, leaving only those against Balmoral. Five of those counts seek recovery for violations of the Dram-shop Act, particularly on the ground that Balmoral sold alcoholic liquor to James Dover, Cynthia Dover, and Ray Disera, all of whom drank the liquor and became intoxicated.

The remaining five counts alleged that Balmoral was negligent in creating and maintaining gate 4 so that motor vehicles leaving the racetrack were not visible to traffic on the highway and so that traffic on the highway was not visible to patrons leaving the racetrack. Plaintiffs also alleged that defendant failed to warn of a hazardous intersection, failed to install regulatory signs or traffic control devices, and failed to design gate 4 so as not to interfere with normal traffic flow on the highway.

Defendant Balmoral filed a motion for summary judgment supported by excerpts from depositions of Cynthia Dover and James Dover in which both stated that Cynthia had consumed no alcohol on the day of the accident and that she was not intoxicated at the time of the collision.

Cynthia further asserted in her deposition that she exited through gate 3, near which she had parked, and that she turned right onto the highway and proceeded north for three-tenths of a mile until, as she neared the lighted area of gate 4, she was struck from behind by the Disera vehicle. She stated that traffic entering or exiting at gate 4 had nothing to do with the accident since there were no cars coming out or entering that gate as she approached it or as she felt the impact of the collision. She further stated that in her opinion, neither the design nor construction nor maintenance of gate 4 and the driveway leading to gate 4 had anything to do with the accident.

Plaintiffs responded to the motion for summary judgment by filing an affidavit of the police officer who investigated the accident. He stated that at the scene Cynthia Dover told him that she exited through gate 4 prior to being struck from behind by the Disera vehicle. The officer also asserted that Ray Disera, Cynthia Dover, and James Dover told him that they had been drinking at the party prior to the collision, that Cynthia said she had had several drinks, and that James was intoxicated and having trouble with his balance.

Plaintiffs also submitted an unsigned document titled “Public Incident Report” which contained a disclaimer that it was not prepared in the ordinary course of business. Since unsigned and unsworn statements cannot be considered upon a motion for summary judgment, we must disregard that document and its contents. Cato v. Thompson (1980), 83 Ill. App. 3d 321, 403 N.E.2d 1239.

Following the court order granting summary judgment, plaintiffs filed a motion to reconsider, in response to which defendant filed an affidavit of Ray Disera asserting that he was not intoxicated on December 7, 1986, and that he experienced no impairment of his mental or physical faculties as a result of drinking alcoholic beverages that day. The trial court denied the motion to reconsider.

Examining first the dramshop counts, plaintiffs insist that there is a material issue of fact as to the issue of intoxication. They point primarily to the fact that Cynthia Dover’s deposition denying that she consumed any alcoholic liquor on the day of the accident is directly contradicted by her statement at the scene of the accident that she had been drinking. Obviously, whether Cynthia consumed any liquor that day is a disputed fact in the record before us. However, we cannot say that it is a material fact necessitating a trial.

Evidence of the consumption of alcohol is not evidence of intoxication. (Taylor v. City of Chicago (1983), 114 Ill. App. 3d 715.) In Clay v. McCarthy (1979), 73 Ill. App. 3d 462, we held that evidence of consumption of alcohol is not admissible unless there is supporting evidence of intoxication which reveals impaired mental and physical faculties with a resultant diminution in the ability to think and act with ordinary care.

Evidence which would be inadmissible at trial may not be considered in support of or in opposition to a motion for summary judgment. (People ex rel. First National Bank v. City of North Chicago (1987), 158 Ill. App. 3d 85.) The only evidence of intoxication was the investigating officer’s affidavit stating that he believed James Dover, a passenger in the Dover vehicle, was intoxicated. The two drivers involved in the accident, Cynthia Dover and Ray Disera, each asserted by affidavit that they were not intoxicated at the time. There being no admissible evidence to the contrary, the summary judgment in favor of defendant on the dramshop counts was appropriate.

Plaintiffs argue that the trial court abused its discretion in permitting defendant to file the Disera affidavit in response to plaintiffs’ motion to reconsider, particularly in view of the court’s refusal to allow plaintiffs leave to submit additional evidence in support of their motion. A stipulated report of the proceedings at the hearing on the motion to reconsider states that plaintiffs did not tender any additional evidence nor did they indicate what additional evidence they could produce if leave were granted.

Affidavits may not be added by either party as a matter of right after a hearing and decision on a motion for summary judgment, but rather the allowance of affidavits presented for the first time in connection with a motion to vacate is within the discretion of the trial court. (Schierer v. Ameritex Division, United Merchants & Manufacturers, Inc. (1980), 81 Ill. App. 3d 90, 400 N.E.2d 1072.) According to the record in the case before us, extensive discovery had been pursued in this case, including written interrogatories and depositions. Plaintiffs’ failure to indicate what evidence of intoxication they could produce in support of a motion to reconsider was sufficient justification for the court’s refusal to grant additional time. The court’s ruling is not indicative of any fundamental unfairness in the rulings of the court. Justice may be served by the prompt disposition of a motion to reconsider which would otherwise delay the final disposition of the cause. We find no error in the procedure followed by the trial court as to the dramshop counts.

We similarly find no error in the trial court’s disposition of the negligence cause of action. As aforesaid, plaintiffs alleged that gate 4 of defendant’s track complex was negligently designed, constructed and maintained so that vehicles exiting gate 4 could not be seen by highway traffic and so that vehicles on the highway could not see vehicles exiting gate 4. Defendant offered Cynthia Dover’s deposition statement that she exited via gate 3, not gate 4, and plaintiffs countered with her statement at the scene to the investigating police officer that she had come out onto the highway through gate 4. Plaintiffs maintain that these contradictory statements plainly indicate a genuine issue of material fact. There appears to be some question about which gate the Dover vehicle actually exited, but resolution of that question is not germane to this case.

The record reveals that the accident occurred when two cars driven by defendants Dover and Disera exited Balmoral Racetrack, one following the other, and, while on the highway, the back car rear-ended the front car, crossed the center lane and collided with an oncoming car. The evidence presented indicates that the design, construction and maintenance of gate 4 was not the cause of the accident because the Dover (the front) vehicle had traveled three-tenths of a mile on the highway before being rear-ended. The evidence presented offers nothing to support the theory that the accident was in any way related to gate 4. Regardless of which gate the parties exited, the Disera vehicle failed to reduce speed to avoid hitting the Dover vehicle. Plaintiffs’ involvement was a direct result of Disera’s vehicle hitting Dover’s vehicle, and the evidence suggests nothing else. Therefore, the summary judgment in favor of defendant on the negligence counts was appropriate.

For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.

Affirmed.

STOUDER, J., concurs.

JUSTICE BARRY,

dissenting:

Because the question of which gate the Dover and Disera vehicles used to enter the highway is material to the negligence cause of action, I would reverse the summary judgment entered in favor of defendant on the negligence counts. Hence, I must dissent from the majority decision as to that question.

The majority concludes that the design and construction of gate 4 could not possibly be the cause of the accident because the Dover vehicle had travelled three-tenths of a mile on the highway before being rear-ended.

If, as Cynthia Dover stated in her deposition, the Dover vehicle exited at gate 3 and slowed down as it approached gate 4 because of poor visibility of traffic using gate 4, the design and construction of gate 4 could be relevant to the issue of proximate cause even if there was no traffic actually using gate 4 at the time.

On the other hand, if, as Cynthia Dover stated to the police officer at the scene, the Dover vehicle exited gate 4 and travelled three-tenths of a mile before the accident, the design and construction of gate 4 would be irrelevant.

Given the material nature of these contradictory factual assertions, and the credibility issue raised thereby, I would conclude that the trial court erred in entering summary judgment as to the negligence cause of action. The issue of which gate was used should be determined by the trier of fact.

I agree with the majority that summary judgment as to the dram-shop counts should be affirmed.


source: Caselaw Access Project

author: Mr. JUSTICE LYONS

license: Public Domain

text:
    Kiran Nanavati, Plaintiff-Appellant, v. City of Chicago, Defendant-Appellee.
    (No. 54372;
    First District
    — October 4, 1971.
    Perry M. Berke and Morton & Yellin, of Chicago, (Julian J. Frazin, of counsel,) for appellant.
    Richard J. Curry, Corporation Counsel of Chicago, (Marvin E. Aspen and Richard F. Friedman, Assistant Corporation Counsel, of counsel,) for appellee.
   Mr. JUSTICE LYONS

delivered the opinion of the court:

This is an action for damages for personal injuries alleged to have been sustained as the result of a fall caused by a defect in a public sidewalk. The trial court found that the plaintiff had suffered damage, but concluded as a matter of law that the defect was not of sufficient proportions to be actionable and entered judgment for the defendant.

On appeal plaintiff takes no exception to the principle laid down by the Supreme Court in Arvidson v. City of Elmhurst (1957), 11 Ill.2d 601 to the effect that not every sidewalk defect will subject a municipality to liability. (There it was held that a question of fact “on the issue of the city’s negligence is presented only when the defect in the sidewalk is such that a reasonable prudent man should anticipate some danger to persons walking upon it” at p. 605.) Rather, plaintiff contends that the trial court erred in considering its own view of the scene and measurements taken by counsel at the time of trial in reaching its determination. In view of the narrow issue presented on appeal, we need detail only the evidence presented with respect to the defect itself.

Plaintiff, the only occurrence witness, testified that he sustained his injuries at approximately 6:30 P.M. on the evening of September 29, 1965. He was walking eastward on the north side of Chicago Avenue immediately prior to the occurrence. When he reached Wabash Avenue and attempted to cross he was forced to retreat to the sidewalk on the northwest corner of the intersection by a southbound car. As he started forward after the car had passed, his right foot caught in an unseen defect in the sidewalk and he fell headlong toward Wabash Avenue.

He examined the defect which caused the fall and found it to be a triangular shaped hole which he judged to be between six and eight inches in length. He also testified that another of the defect’s dimensions was between three and four inches, but it is impossible to determine from the record whether this testimony referred to the depth or breadth of the hole.

Plaintiff also introduced a series of photographs which show the defect in question to be a hole in the sidewalk which is triangular in shape and located at the border of two adjacent slabs of concrete. The only other evidence offered by plaintiff relating to the defect was the testimony of Michael King. He testified that he viewed the scene two or three days after plaintiffs fall and found the hole to be less than a foot long and three to four inches deep in some sections.

FoHowing the close of defendant’s case, the trial court noted that he had acted upon the suggestion of counsel and visited the scene. (Such a suggestion by counsel does not appear of record, but no exception to the statement was made either in the trial court or on appeal.) The judge further noted that whüe at the site, he observed certain numbers in the concrete adjacent to the defect and that these same numbers were visible in certain of plaintiff’s photographic exhibits. The court then suggested that measurements of these numbers be taken and submitted into evidence.

Following a recess, counsel for both parties announced to the court that they had visited the site and measured not the numbers, but the defect itself. Counsel then stipulated that they found the three sides of the hole to be 3Vz, 5, and 5Vz inches in length. They found the maximum depth of the hole to be B4 inches.

Both the view of the scene by the trial court and the measurement of the defect by counsel took place some 37 months after the incident which resulted in plaintiff’s injuries. Yet the trial court relied upon the information gathered during those visits even though the record contains nothing to indicate that the defect remained substantially unchanged during that interval. The difficulties attendant to such reliance are amply demonstrated here as both parties have suggested that this court speculate as to the manner in which the dimensions of the defect might have been altered through the passage of time. This, of course, we cannot do. The situation presented here is substantially the same as in the case of evidence of an experiment where the threshold inquiry is necessarily directed to the reliabifity of the proffered evidence. We believe the same requirements to to foundation evidence therefore should apply. (See Thomas v. Chicago Transit Authority (1969), 115 Ill.App.2d 476.) We must therefore conclude that the trial court’s consideration of both his own view of the scene and the measurements taken by counsel was erroneous.

The only properly admitted evidence with respect to the size of the defect was the testimony of plaintiff and the witness King as outlined above. We must conclude that based upon that evidence the trial court’s determination that the defect was not of sufficient proportions to be actionable under the rule laid down in Arvidson was erroneous. Accordingly, the cause must be remanded for trial on the merits.

In his prayer for relief plaintiff has requested that in the event that the judgment is reversed the cause be remanded for a new trial on the issue of liabüity alone. Supreme Court Rule 366 (111. Rev. Stat. 1969, ch. 110A, par. 366) vests this court with the authority to enter an order for partial new trial. We do not believe, however, that such a disposition would serve the ends of justice and fairness in the circumstances of this case. Judgment reversed and cause remanded with directions to proceed in a manner not inconsistent with this opinion.

Judgment reversed and cause remanded with directions.

BURKE, P. J., and GOLDBERG, J., concur.


author: Mr. JUSTICE STAMOS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Johnny Grayle, Defendant-Appellant.
    (No. 54491,
    First District
    — October 5, 1971.
    Gerald W. Getty, Public Defender, of Chicago, (Ronald P. Katz and James J. Doherty, of Defender Project, of counsel,) for appeHant.

      Edward V. Hanrahan, State’s Attorney, of Chicago, (Martin Moltz, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

After a bench trial defendant was convicted of arson and criminal damage to property and sentenced to serve 10 to 20 years. He appeals contending that the evidence fails to exclude every reasonable hypothesis consistent with innocence and that the sentence is excessive.

Defendant was engaged to be married to Dorothy Gayden who lived with her three children at 3814 South Indiana, Chicago, Illinois. On March 15, 1969, at 2:30 A.M. she received a phone call from defendant. He told her that he was on his way home. Within fifteen minutes he appeared at her apartment and said that he wished to speak to her. She became alarmed and would not remove the chain from the door. She spoke to him through the partially opened door. He accused her of behaving as though he were a dog or a criminal. She then closed and locked the door and did not open it, in spite of defendant’s pleas and exhortations. Defendant departed, but within five minutes telephoned and told her that she was nasty and that he was also going to become nasty. He advised her to call the police, because he was going to return to her apartment. She cautioned him not to do so and he terminated the conversation. She awakened her children and hid them in a closet. Shortly thereafter there was a knock at the door and her niece went to respond. They both recognized defendant’s voice. He demanded that the door be opened, but the niece told him she was afraid that he would injure her aunt. Within three minutes or so after they last heard defendant speak they observed and smelled gasoline flowing under the door into the apartment. The gasoline flowed about five or ten feet into the apartment. There was a booming sound and the gasoline ignited. Dorothy, her niece and the children fled the apartment. Dorothy furnished the police with defendant’s name, description and address. The fire damaged the entire front room and a two foot hole was burned through the kitchen floor.

Defendant related that he visited Dorothy Gayden at 7:30 P.M., March 14, 1969 to pick up some of his clothing. He had been living with her up to that time. He did not have a fight with her, but picked up his clothing and never returned to the apartment. He denied telephoning or visiting her as related by Dorothy Gayden and her niece. Defendant testified to an alibi that placed him in a tavern one block from the apartment between the hours of 8:00 P.M., March 14, to 4:30 A.M., March 15. He denied setting the fire. He was apprehended in an apartment at 2744 South Wentworth, where he was discovered hiding in a clothes closet behind some garments. Defendant testified that he was not found in the clothes closet, but that he was out in the room when the police made their arrest.

Defendant argues that he presented an alibi which placed him at a tavern at the time of the arson and that no one saw him pour the gasoline and ignite it. Defendant submits that the foregoing factors cast reasonable doubt of his guilt, and constitute circumstances that fail to exclude the hypothesis that another may have caused the fire.

In People v. Lofton, 64 Ill.App.2d 238, 243, this court said:

“A conviction based on circumstantial evidence may be upheld where the proof of circumstances leads on the whole to a satisfactory conclusion and produces a reasonable and moral certainty that the defendant committed the crime as charged. [Cases cited.]”

“It is not necessary that the jury be convinced beyond a reasonable doubt of each link in the chain of proof if the whole convinces of guilt beyond a reasonable doubt. [Cases cited.]”

In People v. Huff, 29 Ill.2d 315, 320 the Supreme Court said:

“The fact that the circumstantial evidence relied upon must not give rise to any reasonable hypotheses under which the defendant could be innocent of the crime charged, [citation omitted], does not mean that the trier of fact is required to search out a series of potential explanations compatible with innocence, and elevate them to the status of a reasonable doubt.”

After reviewing this record at bar we find that the prosecution presented sufficient evidence to support the conviction of this defendant according to law.

We do not find that defendant’s sentence was excessive.

Defendant concedes that the sentence was within the statutory limit for the offense of arson, but argues that it was unnecessarily severe in view of defendant’s background. Defendant was twenty-three years of age, had no previous criminal record, and had worked at a restaurant for three weeks and at a bakery for six months. However, defendant’s deliberate and vicious act of starting a gasoline conflagration in the middle of the night in a multi-unit housing structure containing almost 140 persons is reprehensible and the punishment inflicted is not disproportionate to the crime. People v. Taylor, 35 Ill.2d 341, 220 N.E.2d 165, reminds us that our authority to modify sentences should be applied with considerable caution and circumspection. We affirm the judgment.

Judgment affirmed.

LEIGHTON, P. J., and SCHWARTZ, J., concur.


author: Mr. JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Henry Fisher, Defendant-Appellant.
    (No. 53471;
    First District
    — October 6, 1971.
    Gerald W. Getty, Public Defender, of Chicago, (Michael Weininger, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.

      Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and James Sternik, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

The defendant, Henry Fisher, was indicted for the offense of robbery. He was found guilty as charged after a jury trial, and he was sentenced to serve a term of not less than four nor more than eight years in the Illinois State Penitentiary.

On appeal, he contends (1) that his in-court identification was inadmissible because it was the result of an illegal arrest and detention and (2) that the jury was improperly instructed.

In order to properly consider the first contention we must first set out the facts and determine whether the defendant’s arrest was based upon probable cause. On January 23, 1968, at approximately 7:00 A.M., Theodore Snyders, a laundry truck driver, was beaten and robbed in an alley by three men after he had made a laundry pick up. The police arrived at the scene shortly after the crime was committed and Snyders gave a description of the assailants to Officer James Wadlington.

Troy Yates, a Chicago Police Officer, testified that he was working the midnight watch on January 23, 1968, and that at about 7:05 A.M. he received a radio report that a strong-arm robbery was in progress. He proceeded to the scene of the robbery and after obtaining a description of the robbers from Officer James Wadlington he toured the area in search of the three assailants. The description which he had received of the third offender was that of a male negro with short hah who was wearing a short green jacket and dark pants, but who did not have a hat.

Fifteen to twenty minutes after the robbery, at about 7:20 A.M., he observed a male negro walking in a southerly direction at a point four and one-half blocks from the site of tire crime. This man, the defendant, was “dressed in approximately a green jacket with a brown front, boots, black pants and a short natural [haircut] with a blue jersey underneath die green [jacket].” Officer Yates then called the defendant to the squad car and noticed that he had perspiration marks around his forehead and that he seemed to be “breathing heavily” and in a “rapid manner.” The following conversation occurred:

“* * * I asked him what was he doing in the area.

He told me he had just left his friend’s house because he was getting ready to go to work. I asked him where he lived and he told me he lived on 74th and Jeffrey.

I asked him why would he walk all the way over here to try and get a ride to work. He said that is just the way he did things, the man couldn’t pick him up.”

After this exchange the defendant was placed under arrest, taken to the site of the robbery, and identified by the victim as one of the robbers.

The defendant points out that the description given to Officer Yates contained no estimate of the assailant’s height and weight and included no mention of the assailant’s facial characteristics, and he argues that his arrest was not based upon probable cause because at the time of the arrest Officer Yates with respect to the offender’s appearance knew only that the robber was male negro with short hair who was wearing a green jacket and dark pants.

A police officer has probable cause to arrest a person without a warrant when the facts and circumstances within his knowledge and of which he has reasonable and trustworthy information are sufficient in themselves to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested is guilty thereof. (People v. Peak, 29 Ill.2d 343, 194 N.E.2d 322.) The question of whether a police officer had probable cause to arrest a defendant must be judged from the totality of circumstances presented in a given case. People v. McCrimmon, 37 Ill.2d 40, 224 N.E.2d 822.

In the present case, Officer Yates knew that a crime had been committed and that one of the offenders was a male negro with short hair who was wearing a green jacket and dark pants. Shortly after the commission of the crime, he observed the defendant, a male negro who was wearing a green jacket and black pants, walking in the vicinity of the robbery. He noticed that the defendant had perspiration marks around his forehead and that he seemed to be breathing heavily. He questioned the suspect and made the arrest only after the defendant had given an unsatisfactory and unconvincing explanation of his presence in the neighborhood. In view of all the information known by Officer Yates at the time of the arrest we must conclude that he had reasonable grounds to believe that the defendant was involved in the robbery of Theodore Snyders and that the arrest was based upon probable cause.

The defendant relies upon Gatlin v. United States, 326 F.2d 666 in support of his argument that he was arrested without probable cause. In Gatlin a suspect was arrested one hour and one-half after a robbery at a point one mile and one-half from the scene of the crime. The only evidence on which the arrest was predicated was (1) that there had been a robbery, (2) that one of the robbers was a negro wearing a trench coat and (3) that the suspect was a male Negro wearing a trench coat who was observed walking down a street a mile and one-half from the site of the robbery. The Court held that the arrest was without probable cause. The information known to Officer Yates was far more extensive than that known to the arresting officer in Gatlin. Yates had a more complete description, and the inference that the defendant was leaving the scene of the crime is much stronger here than it was in Gatlin. The defendant was arrested fifteen to twenty minutes after the crime was committed at a point four and one-half blocks from the scene; whereas in Gatlin the suspect was found after much more time had elapsed (one hour and one-half after the crime was committed) at a place further from the scene of the crime (one mile and one-half) and the description was vague.

The defendant cites People v. Bean, 121 Ill.App.2d 332, 257 N.E.2d 562, in support of the proposition that the identification is inadmissible as the product of an unlawful detention. This case is inapplicable to the case at bar because here the defendant was lawfully arrested.

We next consider the defendant’s contention that the jury was improperly instructed. The Court gave Defense Instruction No. 5 with regard to the allocation of the burden of proof which reads: “The court instructs the jury that the burden of proving beyond all reasonable doubt every material allegation necessary to establish the defendant’s guilt rests upon the State throughout the trial and the burden of proof never shifts to the defendant.” The court also instructed the jury on the elements of the offense of robbery without a specific reference to “material allegations” as follows:

“The court instructs the jury in the language of the statute that a person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.”

The defendant argues that it was error to use Defense Instruction No. 5 which allocates the burden of proof and refers to material allegations without an additional instruction which specifically defines the material allegations necessary to establish the defendant’s guilt.

The defendant relies upon People v. Hazen, 104 Ill.App.2d 398, 244 N.E.2d 424, in support of his argument. In that case the instruction relating to fire burden of proof made a distinction between a “material allegation” which the State was required to prove beyond a reasonable doubt and an “incriminating fact or circumstance” which the State need not prove beyond a reasonable doubt. The Court held that the giving of such an instruction was erroneous when it was not accompanied by an additional instruction stating what the material allegations were. In the present case, Defense Instruction No. 5 could in no way be constructed to limit the burden which is placed upon the State.

We find no error in the instruction given by the Court. The series of instructions when viewed as a whole, adequately informed the jury (1) of the proper allocation of the burden of proof and (2) of the elements of the offense of robbery.

For the reasons set forth above the Judgment of the Circuit Court is affirmed.

Judgment affirmed.

ADESKO, P. J., and DIERINGER, J., concur.


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Anderson Turner, Defendant-Appellant.
    (No. 54301;
    Fust District
    — October 6, 1971.

      Gerald W. Getty, Public Defender, and James B. Haddad, Northwestern University Law School, (George L. Lincoln, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, William Hedrick, and Stephen J. Connolly, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The defendant, Anderson Turner, appeals from a judgment entered in the Circuit Court of Cook County finding him guilty of murder. He was sentenced to not less than 18 nor more than 30 years in the Illinois State Penitentiary.

The issues on appeal are whether the State proved the defendant sane beyond a reasonable doubt, whether admission into evidence of defendant’s exculpatory statement was a violation of his rights under Miranda v. Arizona (1966), 384 U.S. 436, and whether the prosecutor’s questions during cross-examination deprived the defendant of a fair trial.

On February 14, 1967, Janet Alexander, a prosecution witness, saw her neighbor, Miguel Morales, struggling with the defendant. Morales was; a 72-year-old man of Mexican descent, and the defendant was a 32-year-old Negro. The witness heard Turner ask Morales, “Wiry didn’t you stay with my mother?” Morales said, “Who are you?” Both men then feU out of sight into the Morales apartment.

When the police arrived, Morales was lying on the floor, dead, and Turner was seated next to him with his feet over the body. It was stipulated by both parties that strangulation was the cause of death. Police officers testified that when they arrived Turner said to them, “My father is dead and I’ll kill you if you come into my apartment.” One officer went to call for additional help and upon returning observed the defendant attack his partner. After a struggle Turner was subdued and taken to the | Third District Station.

The interior of the Morales apartment showed signs of a struggle and there was a butcher knife with a six-inch blade laying alongside of the body.

At the police station Turner was placed in the interrogation room while reports were filled out. He either fell or slid out of his chair and assumed a sitting position against a waH. The defendant also failed to answer any of the questions concerning constitutional rights, but when asked his name and address, he blurted out, “I didn’t kill the old man.” The interrogating officer said he smeHed the “strong odor of alcohol” and characterized the defendant’s speech as “very slurry” but understandable.

The killing occurred at approximately 3:30 P.M. At 8:30 A.M. Turner had consumed a pint of Wild Irish Rose wine. At 10:00 A.M. he arrived at the apartment of a friend, Miss Johnnie Mae Dennis. After fixing a record player he went to the store and bought some more liquor and returned to the apartment, where he consumed another pint of wine and a half-pint of gin. Turner testified that he went to the store with Miss Dennis and returned, but did not remember anything after that until he awoke in jail the next morning.

Anderson Turner’s sister testified in his behalf. She stated that when they were children their father had puHed a gun on them and told them he would kfll them because he was not going to take care of them the rest of his life. An uncle then took the gun away from him and threw him out of the house. She also said that four years previous her brother had begun drinking a fifth or two of liquor per day. On a couple of occasions it was like a stupor of some kind: “He wasn’t falling down drunk or anything like that. It was like you know, out of his mind kind of thing. It was like as if you were talking to him, and he could hear you and see you but it was just no hearing, he just couldn’t hear you, everything was, you know — .”

Two psychiatrists testified for the prosecution. One had examined the defendant in May, 1967, and the other in December, 1968. Both had found him competent to stand trial and sane at the time of their examinations. When asked a hypothetical question based on the facts in evidence, neither expressed an opinion as to the defendant’s sanity at the time of the killing. Both were certified members of the American Board of Psychiatry and Neurology.

The psychiatrist for the defense, Dr. Rothstein, testified that a hypothetical man behaving similarly to the defendant in his opinion suffered from an organic psychosis, in which a person reacts to alcohol in a semiautomatic way without actual conscious control over his behavior, and that it was an acute rather than permanent brain syndrome. Dr. Rothstein testified that alcohol might have an explosive effect upon his personality, yet his manual dexterity would not necessarily be impaired. Dr. Rothstein was not certified by the American Board of Psychiatry and Neurology.

The defendant’s first argument is that the State failed to prove him sane beyond a reasonable doubt. The Illinois Supreme Court stated in People v. Gold (1967), 38 Ill.2d 510:

“This court has consistently held that once evidence is introduced which is sufficient to beget a reasonable doubt of sanity it becomes incumbent on the State to prove beyond a reasonable doubt that the accused had sufficient capacity at the time of the crime for its commission.”

However, if the defendant fails to meet the burden imposed by law and does not introduce sufficient evidence to raise a “reasonable doubt” as to the defendant’s sanity, the court will disregard the plea of insanity and the presumption of sanity will remain. In this case in order for a presumption of insanity to be established, the triers of fact would have to believe that the defendant was telling the truth when he said he blacked out from drinking and subsequently committed the murder. In a similar case, People v. Conrad (1967), 81 Ill.App.2d 34, the court said:

“He [defense psychiatrist] testified in response to a hypothetical question embodying defendant’s version in the pertinent evidence and stated that in his opinion the actor in the hypothetical question at the time of the murder was unable to distinguish between right and wrong or to choose whether or not to do an act. However, Dr. Haines admitted on cross-examination that the hypothetical actor became unable to choose between right and wrong only at the time he blacked out. Therefore, if the jury did not believe defendant’s testimony as to the blackout, then Dr. Haines’ answer to the hypothetical question would be of no significance in establishing insanity.

The credibility of the defendant is for the jury to decide. When the defendant was in the police station being asked his name and address, he blurted out that he did not kill the old man. This would indicate that he realized what he had done and did not black out as he subsequently maintained. During his examination the defense psychiatrist did not perform any tests which would establish any organic disability, and there is no evidence that the defendant was ever treated for any disability previously.

In People v. Count (1969), 106 Ill.App.2d 258, the court discussed the issue of the weight to be given to the testimony of an examining psychiatrist:

“He [Dr. Haines, psychiatrist] was of the opinion that anything defendant told a psychiatrist in an examination made for the purpose of determining his legal sanity would be self-serving and unreliable. This finds support in common sense and in People v. Hester, 39 Ill.2d 489, 237 N.E.2d 466, * * a doctor who examines a patient merely for the purpose of qualifying as a witness ordinarily may not testify as to his medical opinions based upon subjective symptoms described by the patient because of the absence from this relationship of the normal trustworthiness accompanying symptomatic descriptions by a patient to a treating physician.’ ”

The Supreme Court of Illinois has held that “the question of a defendant’s mental condition at the time of the crime is a question of fact to be determined by the trier of fact.” (People v. Ford (1968), 39 Ill.2d 318.) In the instant case there is evidence which would enable the jury to believe the defendant was sane at the time of the commission of the crime.

Next, the defendant complains it was error to admit his exculpatory statement into evidence and cites Miranda v. Arizona, 384 U.S. 436 as authority. But the facts of this case fit one of the express exceptions to the Miranda rule. The defendant made his statement, not as a result of interrogation, but voluntarily of his own free will during the time he was being asked for clerical information. This type of questioning is not within the meaning of “custodial interrogation.” Miranda states: “Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.”

Although Miranda warnings were given the defendant prior to asking him for clerical information, it is argued that his condition precluded him from understanding. Nevertheless, no such warnings are required. In People v. Fognini (1970), 47 Ill.2d 150, the court stated:

“The preliminary questions asked an accused with respect to his name and address, which are part of the booking proceedings certainly do not amount to an interrogation in order to elicit incriminating testimony or admissions from the defendant. Therefore, no Miranda warnings or hearings to suppress the evidence were required prior to hearing this testimony at trial.”

Finally, the defendant claims that improper cross-examination denied him a fair trial. Prosecution testimony showed that a butcher knife was found near the deceased, and the defendant testified that he had been visiting Johnnie Mae Dennis, who lived in the same apartment building as the deceased. While cross-examining the defendant, the prosecutor engaged in this line of inquiry:

“Q. Now do you remember picking up a butcher knife and chasing Johnnie Mae with it?

A. No.

Q. Did you ever chase the kids with the butcher knife?

A. No.

Q. Do you remember picking up a butcher knife off her table?

A. No.”

No objections were made to this line of questioning, but the State offered no proof whatsoever that the defendant ever touched the butcher knife or ever chased Johnnie Mae Dennis or the children. The defendant characterizes the line of questioning as the “tactic of constructing a foundation for impeachment and then abandoning this objective immediately thereafter.” If the witness denies he did those things inferred by the questioner, it is the duty of the questioner to produce evidence that those things were actually done, and it is improper to ask questions solely for the purpose of sowing suspicion in the minds of the jury. Nevertheless, we do not believe that it constitutes reversible error. The case of People v. Nuccio (1969), 43 Ill.2d 375, cited by the defendant, is distinguishable in that there were persistent and extensive improper questions asked, while there were just three here. More importantly, in Nuccio there were objections to some of the questions asked, as well as a motion for a mistrial at the conclusion of the questioning when it became obvious that no contrary proof was forthcoming. In the case at bar there were no objections to the questions and no motion for a mistrial. In People v. Ford (1960), 19 Ill.2d 466, the court said:

“An accused may not sit idly by and allow irregular proceedings to occur without objection and afterwards seek to reverse his conviction by reason of those same irregularities.”

We believe the defendant waived his right to object on that ground. Furthermore, by itself, it would not constitute reversible error.

For these reasons the judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


author: Mr. PRESIDING JUSTICE ADESKO

text:
    The People ex rel. James Baylor, Director of Insurance, Plaintiff-Appellee, v. Bell Mutual Casualty Company, Defendant,—(Zelma Chatman, Individually, and on behalf of all other policyholders similarly situated, Petitioner for Intervenor-Appellant.)
    (No. 54400;
    First District
    — October 6, 1971.

      Bloch, Birndorf & Silverman, of Chicago, for appellant. Miles N. Beermann, of Chicago, (Birndorf and Beermann, of counsel,) for Petitioner-for-Intervention-Appellant.
    Jack Joseph, of Chicago, for Lionel Lindheimer, et al., for themselves and all other claimants of mutual and reciprocal insurers similarly situated. Lord, Bissell & Brook, of Chicago, (R. R. McMahan, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of Cook County denying a policyholder of an insurance company leave to intervene in statutory proceedings for liquidation of the company. The facts may be stated simply. Zelma Chatman is a policyholder of defendant Bell Mutual Casualty Company, an Illinois mutual insurance company, ordered liquidated on the petition of the Director of Insurance of the State of Illinois. Pursuant to a decree of liquidation entered on September 9, 1965, the Director of Insurance was appointed liquidator of the defendant, Bell Mutual. On June 29, 1967, an order was entered authorizing and empowering the liquidator to levy an assessment aaginst the policyholders of Bell Mutual. Thereafter, the liquidator levied an assessment against the policyholders, one of whom is petitioner Zelma Chatman, in the amount of one times the annual premium. On January 19, 1968, an order confirming and spreading the assessment of record was entered. The liquidator then proceeded to take various actions to collect such assessments from the policyholders assessed.

On March 15, 1968, petitioner Zelma Chatman filed her petition for leave to intervene in the liquidation proceeding. The liquidator filed a motion to dismiss the petition, which was granted and leave was denied to petitioner to intervene. The only issue before us is whether petitioner should have been allowed to intervene in the liquidation proceeding as a matter of right.

The starting point in the discussion of petitioner’s intervention as a matter of right must be the Civil Practice Act. Ill. Rev. Stat. 1967, ch. 110, par. 26.1 (1) “Intervention” provides:

“Upon timely application anyone shall be permitted as a right to intervene in an action: (a) when a statute confers an unconditional right to intervene; or (b) when the representation of the applicant’s interest by existing parties is or may be inadequate and the application will or may be bound by a judgment, decree or order in the action; or (c) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody or subject to the control or disposition of the court or an officer thereof.”

Under prior law, the right to intervene was severely limited by decisions which required the applicant to have a direct and immediate interest in the subject matter of the litigation. (Bernero v. Bernero (1936), 363 Ill. 328, 2 N.E.2d 317.) There was no intervention as of right in the absence of special statute. The above quoted section 26.1 does away with restrictive concepts of intervention and provides a modern intervention practice for Illinois analogous to that prevailing in Missouri, Pennsylvania, the Federal Rules, and other jurisdictions. The section provides, in the words of our Supreme Court, “that anyone shall be permitted as of right to intervene whenever the representation of his interests by existing parties may be inadequate and he may be bound by any judgment, decree or order entered in the action * * *. This section was designed to liberalize intervention practice, and particularly to relax the requirement that the intervenor have a direct interest in the suit.” Mensik v. Smith (1960), 18 Ill.2d 572, 166 N.E.2d 265.

The purpose of the section is to expedite litigation by disposing of the entire controversy among the persons involved in one action and thus prevent a multiplicity of actions. Sell v. Board of Supervisors of Will County (1968), 93 Ill.App.2d 1, 234 N.E.2d 826.

The intervention provisions of section 26.1 have been construed by the Illinois courts in numerous cases. We need only discuss the following. In Wert v. Burke (1964), 47 Ill.App.2d 453, 197 N.E.2d 717, the court held that an insurance company was entitled to intervention as a matter of right in an action brought by its insured against another motorist. The insurance company had issued a policy containing so-called “uninsured motorist coverage” to the plaintiff, its insured. The pohcy appeared to be a guarantee that if the insured became involved in an automobile accident with the operator of an uninsured automobile, the insurer as guarantor would pay such damages as the insured might be entitled to recover. The court found that the insurance company met the two conditions required for intervention as a matter of right. That is (1) that representation of the applicant’s interest is or may be inadequate; and (2) that the applicant is or may be bound by the judgment. In its discussion of the issue, Mr. Justice Schwartz noted at page 457, that “the word ‘adequate’and its broad usage is indicated by its definition as applicable to the case before us. It is defined as legally sufficient; such as is lawfully and reasonably sufficient * * * an adequate remedy.’ (Webster’s New International Dictionary, 2d Ed.) Certainly no reasonable man, confronted with the same situation as that of the petitioning intervener, would rely on the defendants and their lawyers for the representation of his interest.”

Regarding the issue of timeliness of intervention, in City of Chicago v. Zik, (1965), 63 Ill.App.2d 445, 211 N.E.2d 545, the court allowed intervention even after judgment was the only way to protect the rights of the lessee. In Childress v. State Farm Mutual Automobile Insurance Co. (1968), 97 Ill.App.2d 112, 239 N.E.2d 492, permissive intervention was denied since the intervening petitioners had been aware of the proceedings from the time they were instituted and sought to intervene five years after the commencement of the suit.

In the instant case, the order entered on June 29, 1967, levying the assessment against the policyholders of Bell provided in part that the Director of Insurance as liquidator of Bell, “is authorized, directed and empowered to levy an assessment against the members of said Bell, who were members or policyholders during the twelve months period ending July 6, 1965, in the maximum amount named in said policies, being an amount equal to one times the premium named in said policies, and to execute any and all necessary documents in order effectively to consummate the same.”

The order entered on January 19, 1968, confirming and spreading the assessment of record provided in part: “It is therefore ordered, adjudged and decreed that the premium assessments levied against the members of policyholders of the Bell Mutual Casualty Company, a Mutual Company, who were members or policyholders of said company at any time during the twelve months ending July 6, 1965, as set forth in the Assessment Roll, presented and filed herein, be and each of said premium assessments is hereby approved, ratified, confirmed and spread of record herein * * *” (and that) the liquidator “is hereby authorized, directed and empowered to take all steps necessary, by suit or otherwise, to en force collection of said assessments levied against the members or policyholders of the said respondent corporation."

We find these orders constitute a judgment order against the policyholders of Bell. The language “authorizing, directing and empowering” the liquidator “to take all steps necessary” * * * “to enforce collection of the assessments” amounting to one times the premiums named in the policies is final and conclusive as to parties and to amount, and cannot be collaterally attacked by a policyholder in an action by the liquidator to collect the amount of the assessment. According to Ill. Rev. Stat. 1967, ch. 110, par. 26.1(1) (b), petitioner Zelma Chatman, as a policyholder of Bell Mutual, “will or may be bound by judgment, decree or order in the action.”

As of the date of the liquidation decree, the liquidator became vested by law with title to all property, contracts and rights of action of the company. (Ill. Rev. Stat. 1967, ch. 73, par. 803.) He is also charged with the duty to preserve, so far as possible, the rights and interests of the policyholders of the company whose contracts were cancelled by the liquidation order. In this case, the liquidator acted to collect assessments against the policyholders of the company whom he is charged with representing in the liquidation proceeding. This is his statutory duty. As liquidator, he is attempting to collect an assessment from the policyholders for the benefit of the creditors. The conflict of interest in the liquidator’s role in these proceedings runs as deeply as the divergent interests of the creditors and policyholders. The assessed policyholders were not represented except by the liquidator, and did not have any opportunity to contest the levy of the assessment or the amount thereof. We find that their representation by the liquidator was inadequate in terms of Ill. Rev. Stat. 1967, ch. 110, par. 26.1(l)(b). As Mr. Justice Schwartz stated in Wert v. Burke, supra, “Certainly no reasonable man, confronted with the same situation as that of the petitioning intervenor, would rely on the defendants and their lawyers for the representation of his interest.”

Accordingly, we find that petitioner should have been allowed to intervene in the liquidation proceedings as a matter of right. We also find that petitioner’s application to intervene on March 15,1968, filed less than two months after the order confirming and spreading the assessment of record was entered, was made “upon timely application.” City of Chicago v. Zik, supra.

We do not believe that this decision impairs the efficacy of Article XIII of file Illinois Insurance Code (Ill. Rev. Stat. ch. 73, par. 799, et seq.), especially par. 819(1) which was repealed by P.A. 76 — 715, effective August 7, 1969. The Insurance Code which provides for an orderly liquidation procedure does not preclude intervention to expedite litigation by disposing of the entire controversy in one action.

The judgment of the Circuit Court of Cook County is hereby reversed and remanded with directions to allow petitioner to intervene in the proceeding.

Reversed and remanded.

BURMAN and DIERINGER, JJ., concur.


text:
    J. L. S. Snead, Plaintiff-Appellant, v. Forbes, Inc., Defendant-Appellee.
    (No. 54501;
    First District
    — October 6, 1971.

      Philip H. Corboy and James P. Chapman, of Chicago, for appellant.
    Robert F. Hanley and Arthur H. Martin, of Chicago, (Jenner S. Block, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

Plaintiff J. L. S. Snead, brought this action to recover damages allegedly occasioned by certain libelous articles printed by defendant, Forbes, Inc., in its nationally distributed business magazine. Plaintiff contended that the articles which appeared in Forbes Magazine constituted libel per se (without proof of special damages required) because the article imputed inability to plaintiff to perform his duties as a professional business executive. After defendant’s motion to dismiss was denied, defendant then moved for summary judgment, contending that as a matter of law, the articles were not libelous per se. The trial corut granted defendant’s motion. On appeal, plaintiff contends that under New York substantive law, the articles, taken as a whole, constitute libel per se and in tire alternative, under Illinois substantive law, the articles also constitute libel per se.

We must first summarize the contents of the two disputed articles. The first article, “A Tale of Three Drivers” appeared in the September 1, 1964 issue of Forbes Magazine (hereinafter Forbes). The second article, “Here Come the Tracks” appeared in the December 1, 1964 issue of Forbes. Both articles deal with fluctuations in the fortunes of the tracking industry, with the first article focusing on Consolidated Freightways, the nation’s largest trucking company.

The first disputed article, “A Tale of Three Drivers”, postulates that the creation of a successful large corporation requires a development in three stages, accompanied by what it calls “three contrasting styles of management.” The article details those stages and describes the accompanying styles of management, by fixing upon the activities of the men who ran Consolidated Freightways during its growth into the nation’s largest tracker. “A Tale of Three Drivers” describes the stewardships of each of Consolidated Freightways’ three presidents: Leland Jones, the founder and first president, described as “The Depression ICid”; plaintiff, J. L. S. Snead, tire second president, described as “The Zeclcendorf of Transportation”; and William White, the third and current president, described as “Bill the Digester”. The article’s appraisal of each stewardship is best illustrated by the substitute to the article:

“Under three different bosses, Consolidated Freightways has gone through the pains of birth [James], wild expansion * * * [plaintiff] * * * and drastic retreat [White]. Now, it seems headed for smoother riding.”

Plaintiff’s achievements are discussed as illustrative of the management style characteristic of a company’s middle stage of growth: “wild expansion”. Plaintiff is presented as an ambitious executive who engineered an enormous growth in a short time:

“Snead as it turned out, was no manager. But he did have vision. He was a man with imagination, daring and guts, unafraid to make mistakes. In 1955 CF was just a medium-sized company; its routes stretched only from the West Coast to Chicago.

Moving headquarters from Portland to a modem office in the Menlo Park suburb of San Francisco, Snead went big time. Acquiring 27 track companies, Snead spread Consolidated across the U.S. from coast to coast, went into Canada and Alaska and even Hawaii. By 1960 Snead had turned Consolidated into the nation’s biggest trucker by far.

But Snead had gone too fast. He had boosted debt 450 per cent to $60 btilion and shares outstanding from 1.3 million in 1956 to 2.7 million. While his trucking operations needed attention, Snead began expanding Consolidated’s non-trucking business for aU it was worth. He reorganized the company, making it possible to expand under the deal with White Motor to market James’ Freightliner. Today Consolidated makes about 4,000 of these $15-20,000 truck-tractors and trucks a year and White sells them. Snead also bought another winner: Transicold, which makes refrigeration equipment for vehicles and is second only to Westinghouse in this field.

Snead’s other choices did not work out so well. He bought some parts of a bankrupt West Coast-to-Hawaii steamship company and went into the business himself. In two years it lost about $9 million and was liquidated. His Hawaiian truck operations could not compete against local competition. The worldwide moving company Snead set up was a big money-loser.

Signs of indigestion were everywhere. The 1960 business-cycle dip hit the trucking industry hard and Consolidated even harder. In 1960 revenues reached $152 million up 265 per cent in six years, but losses hit $2.7 million or $1.07 per share vs. a profit of $1.35 the year before.” The second disputed article, “Here Come the Trucks” is not an article about Consolidated Freightways. It does mention the company, but makes no mention of the plaintiff. Rather it is a general review of the trucking industry’s fortunes from the beginning of the 1930’s to the mid 1960’s. The specific example in the article which plaintiff objects to reads as follows:

“Consolidated is perhaps the most dramatic example of the kind of difficulties the big companies got themselves into. Founded in 1929 as Federal Auto Freight in a merger of four small truck lines, the company expanded steadily during the Depression and after. In 1954, the company suddenly went on a buying spree. Within six years, it acquired more than a dozen other trucking companies. This made Consolidated the nation’s biggest motor carrier, but it also made Consolidated a mess. To finance the acquisitions, the company had to boost its debt by 452 per cent to $60.4 million. It also had to increase the number of shares outstanding Rom 1.3 million to 2.7 million.
Some of the acquisitions were excellent — but not all. Consolidated bought freight lines that duplicated each other’s facilities. It bought into three of Hawaiian Textron’s steamships to found a fishyback service. The idea was for the ships to carry freight-filled containers to Hawaii, where Consolidated trucks and trailers would pick them up and haul them to their destination. It proved a loser. Consolidated had to get rid of the ships.”

The article then proceeds to illustrate examples of “how several other big companies got themselves into trouble.”

We must first determine whether the trial court was correct in applying Illinois law to the legal questions raised by defendant’s motion for summary judgment. The Illinois Supreme Court recently set forth new rules for determining choice of law questions. In Ingersoll v. Klein (1970), 46 Ill.2d 42, 262 N.E.2d 593, the court stated that the reviewing court “will apply the most significant contacts’ rule, rather than the doctrine of lex loci delicti, as the local law which has the most significant relationship with the occurrence and with the parties * * As applied to multistate defamation cases, the state of most significant relationship will usually be the state where the person allegedly defamed was domiciled at the time. (See Draft of the Restatement of the Law, Second, Conflicts of Law (1968), Section 150.) Multistate Defamation (2), which states: “When a natural person claims that he has been defamed by an aggregate communication, the state of the most significant relationship will usually be the state where the person was domiciled at the time, if the matter complained of was published in that state.” The assumption here is that the place of greatest potential injury to the reputation of the plaintiff will be the place where plaintiff lived and worked.

In the instant case, the place of greatest potential injury to the reputation of the plaintiff is Illinois. Plaintiff’s affidavit reveals that he has never been domiciled .in New York. Plaintiff contends that the law of defendant Forbes’ principal place of business, New York, should be applied to this multistate action. Plaintiff admits his cause would thereby be “made easier since New York, like most other states, does not follow the innocent construction rule.” We find nothing in plaintiff’s contention to dissuade us from applying the most significant contacts’ rule, as set forth in Ingersoll v. Klein, supra, and the Restatement, supra. Accordingly, we find that the trial court was correct in applying Illinois law to the multistate defamation case before us.

According to Illinois law, articles are libelous per se if they are “so obviously and naturally hurtful to * * * plaintiff * * * that proof of their injurious character can be, and is, dispensed with.” Bontkowski v. Chicago Sun Times (1969), 115 Ill.App.2d 229, 252 N.E.2d 689. Plaintiff contends that the two articles are objectionable upon the grounds that they impute inability to perform and prejudice plaintiff in his profession. In determining whether or not the articles did so prejudice him, they must be read as a whole, and if so read they are capable of an innocent construction, they must be so construed. As the court said in John v. Tribune Company (1962), 24 Ill.2d 105, 108:

“[The innocent construction rule] holds that the article is to be read as a whole and the words given their natural and obvious meaning, and requires that words allegedly libelous that are capable of being read innocently must be so read and declared nonactionable as a matter of law.”

When the above summarized articles are so read, the articles cannot be made into a direct charge of professional incompetence. The reference to plaintiff as the “Zeckendorf of Transportation” is a reference to one of the foremost real estate developers of our time. Even that part of the article which states that plaintiff “was no manager” is tempered by such statements as “but he did have vision — He was a man with imagination, daring and guts * * *”. These statements are far from being naturally and unambiguously harmful to plaintiff in his role as professional executive.

We also point out that under New York Times v. Sullivan (1964), 376 U.S. 254, 84 S. Ct. 710, and its progeny, the constitutional guarantees of freedom of speech and press extend not only to “public officials” but also to “public figures” and “matters of public interest.” In Farnsworth v. Tribune Co. (1969), 43 Ill.2d 286, 253 N.E.2d 408, the Illinois Supreme Court found that “medical quackery is an area of critical public concern, commentary concerning which is entitled to protection of free speech and press guarantees of the Constitution.” In the instant case we find that the challenged articles describing a prominent business executive in a vitally important industry were fair comment on “matters of public interest” dealing with “a public figure.”

In light of New York Times v. Sullivan, supra, and its progeny, we also find that there was no showing of facts which would indicate that the articles in suit here were published with actual malice against plaintiff, or with knowledge that they were false, or in reckless disregard of whether they were false. It is plaintiffs obligation on the motion for summary judgment, as well as at trial, to bring forth all the facts he believed would satisfy his burden of proving actual malice. Plaintiff failed in his burden and pleaded only conclusory allegations.

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

Judgment affirmed.

BURMAN and DIERINGER, JJ., concur.


author: Mr. JUSTICE BURMAN Mr. JUSTICE DIERINGER,

text:
    In re Estate of Samuel Feder, Deceased—(Paul Feder, Petitioner-Appellee, v. Julian J. Luster, Ext., Respondent-Appellant.)
    (No. 54560;
    First District
    — October 6, 1971.
    DIERINGER, J., dissenting.
    Nat M. Kahn, and Smith and Munson, all of Chicago, for Appellee.
    Samuel S. Cohon, of Chicago, for Appellant.
   Mr. JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal from an order directing the Executor of the Estate of Samuel Feder to prepare and file a separate accounting for the rents, issues, profits, and avails coUected by him from property commonly known as 615 — 621 Howard Street Evanston, Illinois, and to pay the monies on hand as shown in the accounting to Betty E. Feder, as trustee of four trusts for the benefit of her children.

Samuel Feder died testate on October 17, 1967, and by his Will executed on July 9, 1964, he devised and bequeathed (1) certain personal and household articles to his daughter if she survived him and (2) the residue and remainder of the estate to named trustees for the uses and purposes set forth in a testamentary trust. This trust was divided into two parts: Trust A included only the real estate commonly known as 615 — 621 Howard Street, Evanston, Illinois, and Trust B included aU the rest and remainder of the property given to the trustees and not included in Trust A.

In a Codicil to the WiD executed on October 12, 1967, Samuel Feder provided:

“I direct that upon my death my trustees convey the fee simple title of real estate described in Trust A as foDows: * *

Thereafter foHowed instructions to convey the property in undivided fourths to Betty E. Feder, as trustee, under four already existing trust agreements. Each of these four trust agreements had one of Mrs. Feder’s four children as its sole beneficiary, and each of the four trusts was to receive an undivided one-fourth interest in the Howard Street property.

Samuel Feder, at the time of his death was the sole beneficiary under a land trust which held title to the Howard Street property. After his death, the executor of his estate, Julian J. Luster, took possession of the Howard Street property and collected the rents which are the subject matter of this controversy.

On June 11, 1969, Paul Feder, a son and heir of Samuel Feder, filed a petition seeking an order compelling Julian J. Luster, as executor, to account to his wife, Betty E. Feder, as trustee, for the rents derived from the Howard Street property during the administration of the estate and to distribute to her aU monies on hand as shown in the accounting. The Court, after considering the Petition, the Answer thereto, memoranda and arguments of counsel, entered an order and later an amended order granting the relief sought. When the amended order was entered on August 21, 1969, the estate was solvent, and the time for filing claims had long since passed.

The executor contends that since the testator’s interest in the Howard Street property was bequeathed to the testamentary trustees and not directly to Betty E. Feder, as trustee, Mrs. Feder did not become entitled to the income from the property until the testamentary trustees acquired title to the property and were able to convey that title to her. In response to this contention, it is argued that the direction to the testamentary trustees in the Codicil that they should convey title to the property “upon my death” constitutes a specific bequest of the property to Mrs. Feder, as trustee, and that as the recipient of the specific bequest, the rents never became a part of the testator’s residuary estate and therefore, she is entitled to all the income derived from the property prior to distribution.

The initial question presented is essentially one of construction. The principal object in the construction of wills and codicils is to ascertain the intention of the testator from the will and codicil as a whole and to effectuate that intention unless it is contrary to some established rule of law or public policy. (Davidson v. Davidson, 2 Ill.2d 197, 117 N.E.2d 769.) This intention is not determined from the language of any particular clause, phrase, or sentence, but from a view of the will and codicil as a whole. (Williams v. Fulton, 4 Ill.2d 524, 123 N.E. 495.) Each word, phrase, and clause in a will, however, should be given effect, if possible (Dillman v. Dillman, 409 Ill. 494, 100 N.E .2d 567), and where one construction renders a portion meaningless and another one gives effect to all tire words used, the latter construction should be adopted. Whitmore v. Stark, 17 Ill.2d 202, 161 N.E.2d 254.

Samuel Feder devised and bequeathed the bulk of his estate to testamentary trustees. The testamentary trust was divided into two parts: Trust A and Trust B. Trust A included only the Howard Street property. Under the Will, as executed on July 9, 1964, the testamentary trustees were to have on-going duties with respect to Trust A; but under the Codicil to the Will executed on October 12, 1967, shortly before he passed away, the only duty given to them with respect to the Trust A was to convey the property included therein “upon my death” to Betty E. Feder, as trustee. The specific use of the phrase “upon my death” in the Codicil evidences an intention on the part of the testator (1) that Betty E. Feder, as trustee should hold title in fee simple and (2) that the beneficiaries for whom she was trustee should derive income immediately upon his death. In order to give effect to this intent, the bequest of the testator’s interest in the Howard Street property to testamentary trustees with instructions to convey upon his death, should be construed as a specific bequest to Betty E. Feder, as trustee, which was to take effect on the death of the testator.

Under the construction of the Will and Codicil proposed by the executor, the phrase “upon my death” in the Codicil becomes meaningless surplusage; however, in the construction which we adopt, the phrase is given full effect and meaning within the context of the testamentary scheme.

The directions in the testamentary trust with regard to the Howard Street property necessarily imply that starting on the date of the testator’s death, Betty E. Feder, as trustee, should hold title and the beneficiaries for whom she was trustee, should receive income from the property. Due to delays in the administration of the Estate of Samuel Feder, the testamentary trustees did not convey title to the Howard Street property to Betty E. Feder, as trustee, upon the testator’s death; and the executor of the estate took possession and collected the rents and income from the property. The inability of the testamentary trustees to convey title upon the death of the testator because of circumstances unrelated to the Will and Codicil does not defeat the implicit right of Betty E. Feder, as trustee, to receive the income from the Howard Street property starting on the date of the testator’s death.

It was not necessary for the testator to specifically bequeath the right to income from the Howard Street property during the administration of the estate. Under the terms of the Will and Codicil, the conveyance of the property was directed upon the testator’s death. The effect of this direction coupled with the specific nature of the legacy resulted in this legacy being removed from the general assets of the testator’s estate. Claims against the estate have long since expired. All death taxes against the estate, as well as all costs, have been paid or provided for.

The trial judge in construing the Will and Codicil and in ordering the executor (1) tire account for the rents derived from the Howard Street property (2) to distribute the net rents to Betty E. Feder, as trustee, was giving effect to the intention of the testator and enforcing the provisions implicit in the Will and Codicil.

The executor next contends that there is no statutory authority for the order requiring him to make a separate and partial accounting and distribution prior to the filing of a general account. Under the Will and Codicil, as construed, Betty E. Feder, as trustee, was to receive title to the Howard Street property upon the testator’s death. When the conveyance was delayed, she became entitled to the income earned from the property during the delay. The executor was under a duty to segregate the income collected from the Howard Street property from the general assets of the estate. The Probate Division of the Circuit Court did not need specific statutory authorization to act here because in entering the order it was compelling compliance with the terms of the Will and Codicil.

For the reasons set forth above, the Order of the Probate Division of the Circuit Court is affirmed.

Order affirmed.

ADESKO, P. J., concurs.

Mr. JUSTICE DIERINGER,

dissenting:

I respectfully dissent from the conclusion reached by the majority. I think we must also look to the land trust agreement covering the property in question, executed by the decedent and the Cosmopolitan National Bank of Chicago, wherein the Cosmopolitan National Bank took title to the real estate with the decedent as the sole beneficiary. The agreement was executed on March 18, 1958, and provides among other things:

“9 * 9 that the interest of any beneficiary hereunder shall consist solely of a power of direction to deal with the title to said real estate and to manage and control said real estate as hereinafter provided, and the right to receive the proceeds from rentals and from mortgages, sales or other disposition of said real estate, and that such right in the avails of said real estate shall be deemed to be personal property, and may be assigned and transferred as such; that in case of the death of any beneficiary hereunder during the existence of this trust, his or her right and interest hereunder shall, except as herein otherwise specifically provided, pass to his or her executor or administrator, and not to his or her heirs at law; and that no beneficiary now has, and that no beneficiary hereunder at any time shall have any right, title or interest in or to any portion of said real estate as such, either legal or equitable, but only an interest in the earnings, avails and proceeds as aforesaid.”

Under the terms of this agreement the beneficiary, Samuel Feder, agreed that it was personal property; that his right and interest should pass to his executor and not to his heirs at law; and that no beneficiary at any time should have any right, title or interest in any portion of the real estate, but only an interest in the earnings, avails and proceeds. This agreement was in full force and effect at the time of Samuel Feder s death, therefore all interest passed to the executor. The will and codicil appointed the executor a co-trustee with the Sears Bank & Trust Company, as residuary trustees, and authorized them to convey the property in question to Betty E. Feder, as trustee.

It is well established law in this state that residuary and testamentary trustees do not take until the executor turns the property over to them upon the closing of the estate. In Wylie v. Bushnell, 277 Ill. 484, at page 507, the Supreme Court said:

“ ‘If a testator in his wiU appoint his executor to be a trustee it is as if different persons had been appointed to each office. * * Where the same person is trustee and executor his duties in the two relations are practically separate and distinct. He is not supposed to take the fund as trustee until it is separated from his funds held as executor, but where his duties as executor are completed and his duties as trustee begin, it is his duty to hold the funds as trustee. (Fenton v. Hall, 235 Ill. 552.)"

And again at page 508, the court said:

“As soon as the debts were aU paid he should have closed his account with the county court as executor, turning over to himself, as trustee, any proceeds that remained after the approval of his final report by that court.”

In Rahe, et al. v. Jobusch, et al., 197 Ill.App. 200, at page 205, the court said:

“Where a wiU creates an executor and also a trustee, and gives each of them power over the property, without specifying the particular property that each shaU have jurisdiction over, we are inclined to think that the law would favor the settlement of the estate by the executor and ascertaining the amount that would pass to the trustee, which could only be done after the executor had completed his duties. ‘The law seems to favor the administration of the estate by the executor rather than by the trustee, and unless it clearly appears from the wHl that the testator intended it to be held by the trustee the executor is to be considered as holding it; and where the wHl provides for the coexistence of the two functions of executor and trustee, the persons exercising those duties do so as executors and not as trustees.' ” In Ramsay v. Ramsay, 10 Ill.App.2d 459, at page 471, the court said: “His role as trustee could not be assumed until the estate was closed, when the jurisdiction of the Probate Court over the matter would cease. Wylie v. Bushnell, 277 Ill. 484; Fenton v. Hall, 235 Ill. 552. These cases are iHustrative of the separate and distinct functions and capacities characteristic of an executor and a trustee.”

Of course, under our present law, the Circuit Court is one unified court, and the jurisdiction question is not involved, however it does not change the separate and distinct functions of the executor and trustee.

The majority opinion construes the clause, “I direct that upon my death my trustees convey the fee simple title of the real estate described in Trust A, as follows: * * which is the property in question, to mean that it was to be conveyed to Betty Feder, as trustee, immediately upon death. I cannot put such a construction on that clause because it ignores the existing land trust, where the title was in the Cosmopolitan National Bank and not in his trustees. It was a physical impossibility for his trustees to carry out such a direction until his trustees received the title from the Cosmopolitan National Bank upon the direction of the executor. In fact, the trustees were not in being until the estate was settled and the proceeds turned over to the trustees. In my opinion, the words “upon my death” in that clause were surplusage and meaningless.

There are other reasons why this clause should be construed as I indicated, particularly the possibility of claims, taxes and expenses of the estate as set forth by the executor in his answer to the petition of Paul Feder, wherein the petitioner asked for a conveyance of tibe real estate and for the rentals collected therefrom. The executor stated in his answer that it may be necessary to sell the property to provide funds, because there was a tentative amount of $18,658.84 due the Department of Internal Revenue and an unknown amount due the Inheritance Tax Department of Illinois, and in addition thereto, the expenses of probating the estate. Subsequently the executor did obtain an order from the Circuit Court allowing him to direct the Cosmopolitan National Bank to convey title to the Sears Bank & Trust Company and Julian J. Luster, as trustees, under the testamentary trust, and the same was done and, in turn, the trustees then conveyed the title to Betty E. Feder, as trustee, all in accordance with the will and codicil. It appears to me that the Circuit Court at that time was satisfied the executor was acting properly and within the terms of the will and codicil in regard to the subject property and did not consider the clause now in question as giving the trustees direct authority.

I think the construction that was later placed upon the clause in question by the Circuit Court, and affirmed in the majority opinion here, is in direct contradiction to the land trust, which could not be changed by will, and is also in contradiction to the will and codicil itself. The will of the decedent makes no provision for disposition or distribution of the income of any property, particularly the specific property in question. There is no specific bequest of the income of this property to the petitioner or to the testamentary trustees. The property is part of the residuary estate. In my opinion, the executor acted properly in collecting the rents and accounting for them as part of the estate and did not have to account to Betty E. Feder, who later became trustee of the real estate in question. I would reverse the order of the Circuit Court.