text:
    George A. Russow et al., Plaintiffs-Appellants, v. Leon A. Bobola et al., Defendants-Appellees.
    (No. 71-24;
    Second District
    — January 11, 1972.

      Ostrom & Johnson, of Glen Ellyn, for appellant.
    Donovan, Dichtl, Atten, Mountcastle & Roberts, of Wheaton, Robert A. Cox and Delbert S. Lyle, both of Glen Ellyn, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

This action arises from the sale of a house by the defendant Bobolas to the plaintiff Russows. The plaintiffs seek rescission of the deed and punitive damages, alleging that the defendants fraudulently misrepresented and concealed material information of water and flooding conditions in connection with the sale.

In September of 1967 the Russows went to the office of Glenshire, Inc. seeking to purchase a home, and were taken to the Bobola home by Glen-shire employee Barbara Wiggins, formerly Barbara Swanson. The listing agreement for the sale of this house named Harold Dato, the president of Glenshire, Inc., as the broker. After five visits to the home, plaintiffs purchased it. Since then the basement and garage have flooded to depths of 30 to 50 inches on ten occasions.

Glenshire, Inc., alleged with Dato to be the agent of the Bobolas, was dismissed as a party defendant some five months prior to trial on the ground that no cause of action was stated against it. The trial court hearing the case without a jury found for the remaining defendants at the close of the plaintiffs’ evidence. Plaintiffs appeal from both orders. They also contend that the court erred in denying them leave to amend and in disallowing testimony concerning their attorneys fees and expenses.

At the trial, testimony established that during the twenty-five months that the Bobolas owned the house, it had twice flooded approximately thirty inches. Glenshire employees were informed in both instances, and Harold Dato may have had personal knowledge of one such incident. However, no mention of the floods was made during the five times plaintiffs visited the house prior to the consummation of the sale. In fact, shortly before the sale, the Bobolas had washed off and painted over all of the water marks left by the floods. While plaintiffs never inquired whether the house flooded, they did ask whether the drain outside the garage was adequate. Mr. Russow says Mr. Bobola answered that it was; while Mrs. Russow says Bobola answered that it was not, but that there was another large sewer across the way, and that there was talk that more sewers would be installed.

In ruling on the motion to dismiss at the close of the plaintiffs’ evidence, the evidence presented, together with all reasonable inferences, must be considered in the light most favorable to the plaintiffs, and if there is any substantial evidence tending to prove the plaintiffs’ allegations, the motion must be denied. City of West Frankfort v. Fullop (1955), 6 Ill.2d 609, 617.

Fraud has been said to comprise anything calculated to deceive, including all acts, omissions and concealments involving a breach of legal or equitable duty, trust or confidence resulting in damage to another (Majewski v. Galling (1959), 17 Ill.2d 92, 99.) This deception may consist of a single act or combination of circumstances, suppression of truth or suggestion of what is false, direct falsehood or innuendo, speech or silence, look or gesture. People v. Gilmore (1931), 345 Ill. 28, 46; Citizens Savings & Loan Ass’n v. Fischer (1966), 67 Ill.App.2d 315, 322.

The trial court found that there was insufficient evidence on which to base an action for misrepresentation against any of the defendants. It appears from his remarks at the time the decision was rendered that the court felt that the only affirmative statement of whether or not the drain was adequate was actually an expression of opinion rather than fact and that the plaintiffs relied on their own judgment when they purchased the home rather than upon any statement or silence by the defendants.

We cannot agree that this is a proper assessment of the involvement of the Bobolas. What is determinative as to the Bobolas is not merely what they said, but what was left unsaid under the particular combination of circumstances in the record. While silence in a business transaction does not generally amount to fraud, mere silence is quite different from concealment. Silence accompanied by deceptive conduct or suppression of material facts results in active concealment, and it then beomes the duty of a person to speak. In such case, if a party to a contract of sale does not disclose the whole truth, having the requisite intent to deceive, this amounts to fraud equally with an affirmative falsehood. (Forest Preserve Dist. v. Christopher (1943), 321 Ill.App. 91, 105, 106; Leonard v. Springer (1902), 197 Ill. 532, 538; Kohl v. Lindley (1866), 39 Ill. 195, 201.) The Bobolas not only failed to tell the plaintiffs that the house had flooded twice, but washed and painted away all water marks which were visible after the floods, thus leaving no indication that the house had problems of this nature. This conduct tended to mislead the plaintiffs and substantially affected their power to make a knowledgeable judgment in purchasing the house. In addition, the statement by Bobola, in answer to a question by Mrs. Russow as to the reasons for the sale, that he would be moving to the East after he had qualified for a bonus at his place of employment, when in fact he admitted that he at no time intended to go to New York, seemed also calculated to deceive the purchasers. Moreover, Bobola’s answer as to the adequacy of the drain indicated that the drainage system was adequate, when in fact he knew the drainage to be inadequate by reason of the two floods he had experienced. While it is true that the plaintiffs had a duty of inquiry regarding tire premises and are chargeable with all knowledge which an examination conducted with ordinary care would provide, the matter undisclosed here is of such a nature that it would not be readily apparent from an inspection of the property. (See Hustad v. Cerny (1926), 321 Ill. 354, 359; Halla v. Chicago Title & Trust Co. (1952), 412 Ill. 39, 46.) There is sufficient evidence of active concealment by the Bobolas to require reversal of the trial court’s order granting their motion to dismiss at the close of the plaintiff’s evidence.

Of cotuse, this is not to say that the defendants are guilty of fraud, but only that there is sufficient evidence in the record to preclude a dismissal at this stage of the proceedings. Should the court then find these defendants guilty of fraudulent conduct, it must grant that relief necessary to do equity, which may include an award of damages if rescission is no longer practical under the circumstances of this case. See Industrial Nat. Gas Co. v. Sunflower Nat. Gas. Co. (1947), 330 Ill.App. 343, 361-362; Pritchard v. Wilcox (1942), 314 Ill.App. 132, 139.

In contrast, Harold Dato made no statement regarding the flooding or drainage of the house, and took no active steps to conceal the situation. There is controversy over whether he even knew water had entered the house. Plaintiffs have not presented sufficient evidence to require Dato to defend a charge of fraud.

Plaintiffs contend that the motion judge erred in dismissing Glen-shire on the pleadings and also erred in refusing to reinstate it as a party defendant on the day of trial. We cannot agree with either contention. First, in our view the record does not present sufficient evidence to require Glenshire to defend a charge of fraud. No Glenshire employee made any statement as to flooding or drainage, and Barbara Wiggins’ silence fell far short of active concealment. In any event, we cannot say that the trial court abused its discretion by denying the motion, when it was not made until more than five months after the order of dismissal was entered, and on the day of trial. (Brockob Const. Co. v. Trust Co. of Chicago (1955), 6 Ill.App.2d 565, 570.) Nor can we say that the motion judge erred in dismissing Glenshire on the pleadings. A motion to dismiss admits facts well pleaded, but not conclusions of law or fact unsupported by allegations of specific facts upon which such conclusions rest. (Pierce v. Carpentier (1960), 20 Ill.2d 526, 531.) Plaintiffs’ second amended complaint states that the Bobolas contracted with Harold Dato and Glenshire to become Bobolas’ agents in the sale of the house. But Exhibit A, attached to the complaint, sets forth the agency contract, and lists only Dato as the real estate broker. Glenshire’s name is not present. Such complaint does not sufficiently allege an agency relationship between the Bobolas and Glenshire, and Glenshire was properly dismissed as a party defendant.

The court also did not abuse its discretion in denying the motion of the plaintiffs to amend as the case was called for trial and at the close of the plaintiffs’ case. Again, the trial judge was acting within his discretion in denying the amendment because of the delay. Moreover, since we have found that Dato was not liable in fraud, the amendment charging that Glenshire was his agent would serve no purpose.

We affirm that portion of the order of the court below which resulted in the dismissal of Count II of the amended complaint, which charged wilful and wanton misconduct. We find no basis in the record for awarding punitive damages against any defendant. Likewise, the court did not err in refusing to allow evidence of plaintiffs’ attorneys fees and expenses and in denying their offer of proof in that regard. In the absence of any applicable statute, and none has been shown, there is no basis for the allowance of attorneys fees and costs in this litigation. When an award of punitive damages is authorized, expenses and attorneys fees may be considered in estimating the amount of damages but are not allowable in addition to the sum assessed as exemplary damages. (See Ritter v. Ritter (1943), 381 Ill. 549, 553-556; Boss v. Coe Inv. Co. (1964), 45 Ill.App.2d 417, 423, 424.) See also House of Vision, Inc. v. Hiyane (1969), 42 Ill.2d 45, 51.) Our conclusion that the record does not support exemplary damages precludes the assessment of attorneys fees and costs as an element of punitive damages.

That portion of the judgment below which dismisses the complaint as against the defendants, Harold E. Dato and Glenshire, Inc., is affirmed. That portion of the order below which dismisses the complaint as to Count II of the second amended complaint is also affirmed. The portion of the judgment which dismisses plaintiffs’ complaint against the defendants Leon A. Bobola and Raphaela Bobola at the close of all of the evidence offered by the plaintiff is reversed. To this extent the cause is remanded for further proceedings consistent with this opinion.

Affirmed in part, reversed in part and remanded with directions.

MORAN, P. J., and ABRAHAMSON, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SEIDENFELD

license: Public Domain

text:
    George Johnson, Indiv. and as father and next friend of Janet Johnson et al., Plaintiffs-Appellants, v. Phyllis Myers, Admr. of Estate of Sidney A. Johnson, Deceased, Defendant-Appellee.
    (No. 71-45;
    Second District
    — January 11, 1972.
    Lee Phillip Forman, of Chicago, for appellant.
    Rathje, Woodward, Dyer & Burt, of Wheaton, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

We are asked to decide whether the rule of parental immunity bars an action by unemancipated minors to recover damages for personal injuries alleged to have been caused by the ordinary negligence of a parent, now deceased, in the operation of a motor vehicle.

The complaint by George Johnson, as the father and next friend of Janet Johnson and Cynthia Johnson minors under the age of seven, alleged, in Counts II and IV, that Sidney A. Johnson, deceased, with her daughters as passengers negligently drove into a fence, tree and telephone pole. The appeal is from the dismissal of these counts. (Counts I and III which allege wilful and wanton misconduct were dismissed. Count V which alleged loss of consortium in an individual action by George Johnson was also dismissed, but the appeal has been abandoned as to this count.)

We will not review the long history and divergent views on the basis for the doctrine of parental immunity in tort actions. Clearly, it is a court-formulated rule which is not based on an absence of duty but upon immunity from suit. The principal policy basis for the immunity as stated in Nudd v. Matsoukas (1956), 7 Ill.2d 608, 619, “can be found only in a reluctance to create litigation and strife between members of the family unit.” See also Mroczynski v. McGrath (1966), 34 Ill.2d 451, 454, 455, in which the court again approved the rationale of Nudd but found that no tortious act was involved in the alleged break-up of the family unit.

In Nudd, the court held that the stated policy basis could not prevent a minor from obtaining redress for wilful and wanton misconduct of a parent, with the preface that “* * # this policy might be such justification to prevent suits for mere negligence within the scope of the parental relationship * * 7 Ill.2d at 619.

In Schenk v. Schenk (1968), 100 Ill.App.2d 199, 206, the court allowed a suit by a father against a seventeen-year-old unemancipated daughter for injuries sustained when she negligently ran into him while he was a pedestrian on the street. The court reasoned, within the rationale of Nudd and Mroczynski, supra, that negligence of either a parent or a child which has no necessary or direct connection with the family relationship is not within the immunity doctrine. The court therefore held that acts which occurred during the exercise of individual rights on the public streets and with no such direct connection were outside the scope of the parent-child relationship.

In Cosmopolitan Nat. Bank of Chicago v. Heap (1970), 128 Ill.App.2d 165,169, a suit by an unemancipated minor against his father for personal injuries caused by the fathers alleged negligence in permitting a loose stairway rug to be used in the home was held to be barred under the immunity doctrine.

One of the arguments which the plaintiffs have made concedes the public policy in maintaining harmony, avoiding strife and insuring a proper atmosphere of cooperation, discipline and understanding in the family, but denies the basis for its application when the parent charged with negligence is deceased, as here. We agree that when the family relationship has been dissolved by death the stated policy behind the rule of family immunity ceases. We see no reason then to apply the immunity doctrine to prevent an otherwise valid tort action from proceeding. See Brennecke v. Kilpatrick (Mo. 1960), 336 S.W.2d 68, 73; Barnwell v. Cordle (5 CCA 1971), 438 F.2d 236; Parks v. Parks (Pa. 1957), 135 A.2d 65; Plumley v. Klein (Mich. 1971), 186 N.W.2d 250.

The plaintiff has argued alternatively that the operation of a motor vehicle is not a peculiarly parental function inasmuch as the parent owes the same duty to others as she does to her children who are passengers. We do not agree that the operation of a motor vehicle with minor children as passengers must necessarily be outside the family relationship. In a modem society the motor vehicle plays an intimate and necessary part in the accomplishment of many family purposes. While the complaint sufficiently pleads acts of negligence in faffing to maintain a proper lookout, failing to keep the vehicle under control, driving at excessive speed, and driving while under the influence of intoxicating liquor and while tired and exhausted, it alleges no particular facts which would show that the conduct of decedent arose outside of the family relationship. We therefore do not decide the case on this issue.

We reverse the judgment of the trial court which dismissed counts II and IV of the complaint. The cause is remanded with directions to reinstate these counts, with leave to the plaintiff to amend if desired, and to thereafter proceed in accordance with this opinion.

Reversed and remanded with directions.

MORAN, P. J., and ABRAHAMSON, J., concur.

       Appellants have not taken the position in brief or oral argument that the doctrine of parental immunity should be abolished entirely. However, on leave granted to file additional authorities, they have cited numerous cases which abolish the doctrine. See Hebel v. Hebel, 435 P.2d 8 (Alaska 1967); Goller v. White, 122 N.W.2d 193 (Wis. 1963); Gelbman v. Gelbman, 245 N.E.2d 192 (N.Y. 1969); Briere v. Briere, 224 A.2d 588 (N.H. 1966); Gibson v. Gibson, 479 P.2d 648 (Cal. 1971); Petersen v. City and County of Honolulu, 462 P.2d 1007 (Hawaii 1970); Silesky v. Kelman, 161 N.W.2d 631 (Minn. 1968); Streenz v. Streenz, 471 P.2d 282 (Ariz. 1970); France v. A.P.A. Transpon, 267 A.2d 490 (N.J. 1970); Falco v. Fados, 282 A.2d 351, 355 (Pa. 1971). We feel bound by the continued expression of a different policy in the Illinois authorities,


author: Mr. PRESIDING JUSTICE SEIDENFELD

text:
    Solem Machine Company et al., Plaintiffs-Appellants, v. Wallace E. Carroll, Defendant-Appellee.
    (No. 71-89;
    Second District
    — January 11, 1972.
    Connolly, OHver, Goddard & Coplan, of Rockford, for appeHant.
    Maynard & Brassfield, of Rockford, for appeUee.
   Mr. PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The plaintiff, Solem Machine Company, an Illinois corporation, owned certain timber land in Paraguay. On December 14th, 1965, the company agreed, through the plaintiff J. W. McCoy, a stockholder of Solem who also represented aU other interests in the company, to quilt-claim the Paraguayan land to the defendant, WaUace E. Carroll, with no warranty as to title, Hens or acreage.

The agreement was reduced to a writing dated December 23rd, 1965, sent by defendant’s attorneys to McCoy with a $30,000 check for the purchase price. The agreement provided that the check was to be release to Solem if a prior transfer had not been made by one Nunez who had been deahng with the property for Solem and McCoy in Paraguay and in whose hands there was an outstanding power of attorney. Although this condition was satisfied, defendant stopped payment on the check after finding that the Solem Company had no title to the property, having lost all of its interests through various proceedings in Paraguay. These proceedings involved the estate of Peter Solem, Deceased, who under the Paraguayan law held title to the timber land for the benefit of his corporation.

In plaintiffs’ suit to recover the purchase price, the jury found for the defendant and the trial court entered the judgment on the verdict from which this appeal is taken.

The principal issue in the case is framed within defendant’s affirmative defense alleging fraud in the inducement of the contract, consisting of the alleged concealment of material facts. We will not detail the long and tangled web of circumstances which appear from tire testimony and correspondence in the record. We have concluded that there is substantial evidence in the record tending to prove the elements of fraud and find that the jury’s verdict is not against the manifest weight of the evidence.

When fraud is charged, if the facts and circumstances, taken in aspect most favorable to the proponent may fairly be considered evidence tending to prove fraud in all of its elements, an issue is created for the jury. (Millikin National Bank v. Shellabarger Grain (1944), 322 Ill.App. 189, 193.) See also Leonard v. Springer (1902), 197 Ill. 532, 538, 539; Kohl v. Lindley (1866), 39 Ill. 195, 201.

Plaintiffs have argued that the defendant had access to the same information which McCoy had; and that McCoy was forthright in advising the defendant that there were “problems regarding the land,” that there were “tax problems,” and that “there were people trying to get hold of the property.” Plaintiffs contend that they could not properly be charged with either misrepresentation or concealment of the very problems which were the basis for insistence on an “as — is” agreement.

In a discussion prior to the final agreement, the defendant’s attorney told McCoy that the defendant was aware that squatters had lived on the property and that some of them had possibly perfected their right to some small parcel of it; that possibly there were some delinquent real estate taxes and possibly some estate taxes that resulted from the death of Mr. Solem. Defendant testified that he then asked McCoy directly if he knew of any other matters or any other situation other than these items that he had just mentioned that would be defects in the title to the property and that McCoy answered that he did not know of anything. Defendant argues, and we think rightly, that on the whole record this amounted to evidence of the intentional concealment of other circumstances known to McCoy and not to the purchaser. For example, there was testimony that although the final letter agreement did not specify any acreage, the property had originally been approximately a 450,000 acre tract some years before when Carroll had dealt with Solem, which figure was apparently still in Carrolls mind since he specified in the original offer to purchase, “450,000 acres or more.” Although McCoy had information that a substantial number of acres had already been sold to pay debts through judicial proceedings, he said nothing about this. Also, McCoy did not tell Carroll that the remainder of the property was in urgent danger of “fraudulent expropriation” by a syndicate of creditors which had been formed to sell the property for debts of the Peter Solem Estate. Even though the correspondence which McCoy had received from Paraguay did not preclude all possibility of relief, it warned of the imminent danger of losing all interest in the property.

While McCoy’s last correspondence from Nunez was on November 3rd, 1965, and there was no evidence that he knew, prior to January 11th, 1966, that the totality of the land had been sold through judicial proceedings (culminating in a deed which was effective November 30th, 1965, as to original parties and December 9th, 1965, as to third parties), this does not dispose of the issue. For the correspondence which was in McCoy’s possession, the contents of which he did not disclose, could well have alerted Carroll to the danger that more was involved than the question of the exact number of acres, the unpaid taxes and the presence of squatters on the property. Carroll was admittedly aware of these general problems and willing to accept them as his responsibility, but the jury could find from the evidence that Carroll was misled into agreeing to accept a quit claim deed because of the fraudulent concealment of the more expansive dangers involving the property. It is true that McCoy suggested that Carroll contact Nunez directly and that this was not done. The jury could properly weigh this evidence in determining McCoy’s intention together with the other circumstances relied upon to prove the fraud. But this does not alter the fact that there was sufficient evidence for the jury to decide whether the concealment of the exact contents of the correspondence from Nunez and others to McCoy constituted a fraudulent concealment of material facts upon which the defendant relied to his detriment.

The jury under proper instructions and in a trial free from any claim of error found for the defendant, and we are not justified in interfering with that finding.

The judgment below is affirmed.

Judgment affirmed.

MORAN and ABRAHAMSON, JJ., concur.


author: Mr. JUSTICE ABRAHAMSON

text:
    Bonnie Binz Bowling, Plaintiff-Appellant, v. John Hopp, Defendant-Appellee.
    (No. 70-290;
    Second District
    — January 12, 1972.
    William T. Davies, of Elgin, for appellant. i
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

On January 6, 1969, the plaintiff filed her complaint in replevin in the Circuit Court of Cook County alleging that she was entitled to the possession of certain items of personal property unlawfully detained by John Hopp, the defendant, or, in the alternative, damages in the amount of $491.10, being the value of the property. On July 23, 1969, the cause was transferred to the Circuit Court of Kane County for the reason that Hopp was a resident of that county.

On February 24, 1970, judgment was entered in favor of the plaintiff in the amount of $491.10 when the defendant failed to appear pursuant to notice. On April 23, 1970, the judgment order was vacated “on the court’s own motion” and apparently without notice to either party.

On September 15, the plaintiff filed her motion to vacate the order of April 23 on the grounds that the court had lost jurisdiction on that date. On October 7, that motion was denied and the cause set for hearing on October 27. This appeal followed.

Although the plaintiff has filed the record, her brief and excerpts of record, no appearance or brief has been filed by the defendant. For that reason, the orders appealed from will be reversed and the cause remanded. Rotter v. Rotter, 119 Ill.App.2d 231.

Reversed and remanded.

SEIDENFELD, P. J., and GUILD, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jimmy Lee Miller, Defendant-Appellant.
    (No. 71-92;
    Second District
    — January 13, 1972.
    Ralph Ruebner, of Defender Project, of Elgin, (Kenneth L. Gillis, of Chicago, of counsel,) for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, for the People.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

On November 13, 1970, Jimmy Lee Miller pleaded guilty in the Circuit court of Winnebago County to the charge of armed robbery and was sentenced, in accordance with the provisions of a plea agreement, to a term of three to seven years in the penitentiary. On the basis of the plea negotiations and agreement, two other pending indictments against Miller were dismissed.

This appeal is based on the single contention of Miller that the trial court failed to personally address him in open court and advise him of the minimum and maximum sentences for the offense of armed robbery as provided in Rule 402 of the Supreme Court rules. Ill. Rev. Stat. 1969, ch. 110A, sec. 402.

Rule 402, adopted June, 1970 and effective as of September 1, 1970, provides in part as follows:

“Rule 402. Pleas of Guilty.
In hearings on pleas of guilty, there must be substantial compliance with the following:
(a) Admonitions to Defendant. The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following: # # *
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences:

The record shows that Miller appeared in open court with his privately retained counsel and a co-defendant on November 13. The State’s Attorney informed tire court that plea negotiations had been held with both defendants in reference to the pending indictments and that they had agreed to plead guilty to the charge of armed robbery in exchange for a sentence of three to seven years and a dismissal of the other charges. The only reference to the penalties imposed by the statute for armed robbery was made by the State’s Attorney who said “* # * all three of these Indictments carry a possible penalty of from two years to life, the maximum to be fixed by the court.”

The defendant does not contend that he did not understand the possible sentences prescribed for armed robbery or that he was not fully and adequately advised as to his other rights but only that fatal error was committed when the court itself failed to personally address him in open court as to the minimum and maximum sentences.

Rule 402 is, of course, of recent origin and it is not surprising that there are not, as yet, any reported cases on the precise point raised in this appeal. Sections 113 — 4(c) and 115 — 2(a) (2) of the Criminal Code provide that a plea of guilty shall not be accepted unless “the court” has explained to the defendant the consequences of his plea and the maximum penalty provided by law for the offense. (111. Rev. Stat. 1969, ch. 38, sec. 113 — 4(c) and 115 — 2(a) (2).) Rule 402 expanded the required explanation to include both the maximum and minimum penalties “to give the defendant a more realistic picture of what might happen to him,” according to the committee comments.

Although the code provides that the “court” shall explain to the defendant the maximum penalty before accepting a plea, it has never been held that the information must come directly from the judge himself. In the case of the People v. Hrebenar 266 N.E.2d 733, the defendant was advised that the maximum penalty of the crime of aggravated battery was 5 years when in fact it was 10. The defendant pleaded guilty, was sentenced to a term of three to five years, and other pending charges were dropped. On appeal, he urged the reversal of his conviction on the grounds that he had been incorrectly admonished. The court refused to accept such a technical interpretation of the rule and held that since no prejudice resulted to the defendant as a result of the mistake, the judgment of conviction should stand.

Rule 402 provides that “there must be substantial compliance” with the procedures provided therein. The purpose of the rule, again according to the committee comments, is to make an affirmative showing, in the record, that a defendant voluntarily and understandingly enters his plea of guilty before it is accepted in accordance with the guidelines established by the Supreme Court in Boykin v. Alabama 395 U.S. 238, and to give visibility to the plea agreement process.

Certainly those goals would include a showing that the defendant has been advised as to the range of tire possible penalties for the offense of which he stands charged. We do not agree, however, that Rule 402 requires a strict, literal adherence to every term contained therein if the record shows “substantial compliance.” There is no necessity, either in the law or logic, that the actual admonition relative to the minimum and maximum sentence prescribed by the law comes from the lips of the trial judge if, as here, it is clear in tire record that the defendant has been so advised.

For the reasons stated, the judgment of the trial court will be affirmed.

Judgment affirmed.

SEIDENFELD, P. J„ and GUILD, J., concur.


author: Mr. JUSTICE STOUDER

text:
    Meister Bros., Inc., Plaintiff-Appellee, v. Vincent Sigler, Defendant-Appellant.
    (No. 71-114;
    Third District
    — December 2, 1971.

      Ivan Light, of Normal, for appellant.
    Gaskins, Sutkowski & Mueller Association, of Peoria, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal by Vincent Sigler, Defendant-Appellant, from a judgment of the circuit court of Peoria County denying his motion to vacate a judgment by default for $3,204.95 in favor of Meister Bros. Inc., PlaintiffAppellee.

Prior to February, 1971, plaintiff had filed his mechanic’s lien in McLean County with respect to money alleged to be due from the defendant Vincent Sigler on premises located in that county. Defendant disputed the claim and at the time discussed it with his attorney whose office is in Normal, Illinois and who is the same attorney representing defendant on this appeal.

On February 12,1971, plaintiff filed this action in Peoria County seeking $3,204.95 damages for defendant’s failure to pay for heating and plumbing supplies. The summons was served on defendant on February 25, and it directed defendant to appear on March 5, 1971. On that date the defendant neither having answered nor appeared nor requested a continuance, the attorney for plaintiff requested that a default order be entered which was done. The default order entered on March 5, 1971, provided the case be continued until March 12,1971, “for filing proof of service and for entry of judgment.” On March 12, 1971, defendant still not having appeared or answered, he was again defaulted and judgment for $3,204.95, the full amount of the claim, was entered.

On April 2, 1971, defendant filed his motion seeking to vacate the judgment by default and requesting leave to respond to plaintiff’s claim. According to the affidavit filed in support of the motion, defendant admitted being served with summons on February 25 in McLean County but stated that due to press of business he inadvertently failed to notify his attorney of the receipt of summons until March 8, 1971. On the same date defendant’s attorney called plaintiff’s attorney in Peoria and was informed that judgment or default had been entered against defendant. On April 2, 1971, the date the motion to set aside the judgment was filed and set for hearing, defendant’s attorney discovered that no final judgment had in fact been entered on March 5 but instead the matter had been continued until March 12, 1971. Defendant’s attorney thereupon filed a supplemental affidavit regarding the telephone call with plaintiff’s attorney which took place on March 8th in between the date of the default, March 5 and the date of final judgment, March 12. Additionally the affidavits indicated that defendant had a meritorious defense and also alleged improper venue. No counter-affidavits were filed by plaintiff.

On April 28, the trial court denied defendant’s motion and it is from such judgment that appeal follows.

The propriety of the court’s decision is governed by Ill. Rev. Stat., 1969, ch. 110, par. 50(5), which provides, “The court may in its discretion, before final order, judgment or decree, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order, judgment or decree upon any terms and conditions that shall be reasonable.” With respect to relief sought in accord with the provisions of the foregoing statute the principal concern of the court is to see that right and justice is done. (Widucus v. Southwestern Electric Cooperative, Inc. 26 Ill.App.2d 102, 167 N.E.2d 799.) Granting relief is within the discretion of the court and although its discretion ought to be liberally exercised nevertheless relief may be denied where substantial justice does not so require. As indicated in Mieszkowski v. Norville, 61 Ill.App.2d 289, 209 N.E.2d 358, a reasonable excuse or due diligence as weH as the absence of prejudice to plaintiff ought to be shown to justify the relief sought. Whether the trial court has abused its discretion may also depend on a showing that the relief sought is not based on frivolous claims or for the purpose of delay.

When we consider the facts in light of the foregoing authorities it is our conclusion the trial court should have granted defendant’s motion. We do not believe defendant was guilty of culpable negligence or a wilful disregard of the court’s process. The summons was served in a county other than that in which the suit was instituted a relatively short time before defendant was required to appear. In fact the time period was so short that plaintiff was not even able to file his proof of service on the return date and the court’s entry of a default on said date without requiring such proof to be filed is at least questionable. The affidavit of defendant’s attorney is uncontradicted with respect to his telephone conversation with plaintiff’s attorney on March 8th, three days later, his inquiry concerning the status of the case and the failure of plaintiff’s attorney to indicate that the case had been continued at his own request. Plaintiff argues in his brief that as an officer of the court defendant’s attorney was bound to check the records and if he had done so he would have discovered that the continuance had been ordered. Such argument overlooks the uncontradicted assertion that defendant’s attorney was misled by plaintiff s attorney and we can only conclude that defendant’s attorney acted reasonably under the circumstances. Nor do we believe that a trial on the merits would result in any prejudice to plaintiff. No particular delay was involved and absent any showing to the contrary it does not appear that plaintiff’s ability to prove his claim could have been affected.

For the foregoing reasons the judgment of the circuit court of Peoria County is reversed and remanded with directions to proceed in accord with the views expressed herein.

Reversed and remanded with directions.

SCOTT and DIXON, JJ., concur.


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. David Swaney, Defendant-Appellant.
    (No. 71-13;
    Third District
    — December 8, 1971.

      Bruce Stratton, of Defender Project, of Ottawa, for appellant.
    Arthur Lennon, Assistant State’s Attorney, of Joliet, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

David Swaney was indicted in Will County for two counts of Attempted Murder, one count of Aggravated Battery and one count of Burglary. A change of venue was granted and the case was transferred to Iroquois County. After a jury trial the defendant was found guilty of both counts of Attempted Murder and the one count of Aggravated Battery. He was later sentenced to two concurrent terms of 15 to 20 years for the two convictions of Attempted Murder.

The material facts were that at about 1:30 A.M. on July 27, 1969, the defendant entered the home residence of Vladimir Chuk and Sophie Chuk at 2505 Golfview Drive, Will County, Illinois, through a glass door at the rear of the home. He did not know either of the Chuks. After entering, he came to the doorway of the bedroom in which the Chuks were sleeping. Both Chuks awoke and ran after the defendant into a family room. In the darkness a struggle ensued between both Chuks and the defendant as a result of which Vladimir was stabbed by the defendant twenty-seven times and Sophie was stabbed by the defendant one time. Vladimir still managed to hold the defendant while his son called the police who arrived shortly thereafter. Both Chuks recovered from their wounds.

Defendant has appealed contending that there was no evidence of intent to kill or harm Mrs. Chuk, maintaining that a person who, while assaulting another with intent to kill him, unintentionally injures a third person cannot be guilty of intent to kill the third person. Such is not the law of Illinois. (Dunaway v. People 110 Ill. 333; People v. Cohen 305 Ill. 506.) Further, the testimony showed that during the course of the struggle defendant said “I am handy with a knife, I have proven it, you and your wife are both going to die before help gets here”.

Moreover this court said in People v. Masterson 79 Ill.App.2d 117 “the intent with which an act is done may be inferred from the act itself and the surrounding circumstances, it being presumed that every person intends the natural and probable consequences of his actions.” Here the defendant invaded the home of the Chuk’s for a criminal purpose while armed with a hunting knife which he used indiscriminately in the darkness.

The record presents more than sufficient evidence to prove all elements of the charge and the jury was justified in finding defendant guilty beyond a reasonable doubt.

It is further urged as error that during the trial Chuk testified to the severity of his wounds, blood all over himself, his intestines hanging out and pain experienced. He exhibited his scars to the jury. Two police officers told of blood in the room and holes in Chuk’s back. The doctor who treated Chuk told of the nature and severity of his wounds, the amount of blood lost and the complications after surgery. In the case of People v. Nicholopoulos 25 Ill.2d 451 such testimony was held to be error. In the instant case the defendant was also charged with the offense of Aggravated Battery. The Criminal Code provides that Aggravated Battery is committed by a person who “intentionally or knowingly causes great bodily harm, * * (Ill. Rev. Stat. 1969, ch. 38, par. 12 — 4(a).)

The nature or seriousness of the injury inflicted was at issue and the trial court had no means of knowing upon which charge the jury would act. People v. Doyle 76 Ill.App.2d 302.

It is also contended that testimony of Mrs. Chuk as to her pain was prejudicial and so was an effort by the State to improperly introduce an opinion by the treating surgeon as to whether Chuk would have died without surgery.

We do not feel the defendant was prejudiced. The purpose of review in a criminal case is not to determine whether the record is perfect, but to determine whether the defendant had a fair trial under the law and whether his conviction is based upon evidence establishing his guilt beyond all reasonable doubt. (People v. Naujokas 25 Ill.2d 32.) The evidence here so clearly indicates defendants guilt that this court cannot conceive that any other verdict would be reached without these alleged errors.

Defendant further complains of what he conceives to be an inaccuracy in the “pen letter”. Ill. Rev. Stat. ch. 108, par. 203 requires the Judge and the State’s Attorney to file an official statement with the Clerk of the Court to be transmitted to the Parole and Pardon Board and to thereby furnish the Board an official statement of the facts and circumstances constituting the crime, * # * together with all other information accessible to them in regard to the career of the prisoner * * * and any other facts and circumstances which may tend to throw light upon the question as to whether such prisoner is capable of again becoming a law-abiding citizen.

The phrase objected to is: “While on the witness stand, the defendant said that he thought his intent, when entering the home, was to make a sexual contact with a female inside the home”.

Defendant’s testimony on direct examination was:

Q. What was your purpose?

A. I don’t really know.

Q. Could be anything?

A. Seeing the broad’s negligee, you know, maybe wanted to rape the broad, sexual desire — caused sexual desire to be very strong.

Q. Was it very strong at the time?

A. Very strong.

# # #

Q. David let’s back up, I want to ask you one very important question —when you were in the Chuk home and you got to the door of the Chuk bedroom and stood there, supposing only Mrs. Chuk had been there, can you tell us what you might have done?

A. I don’t know but as strong as that sexual desire was she might have got raped.

Q. David, in using the word rape, have you actually ever forcibly raped a person?

A. I forcibly raped a couple of women but they never turned me in." In so far as the “pen letter” is concerned, even if properly before us, it would appear that, if anything, the statement was more than generous and should not be disturbed. The statute is broad in its scope and amply warrants the remark contained in the statement. People v. Wooten 392 Ill. 542.

The judgment is affirmed.

Judgment affirmed.

STOUDER, P. J., and SCOTT, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Roy Pearson, Defendant-Appellant.
    (No. 70-71;
    Third District
    — January 7, 1972.
    Bruce Stratton, of Defender Project, of Ottawa, (John L. Barton, of Defender Project, of counsel,) for appellant.

      Clarence A. Darrow, Assistant State’s Attorney, of Rock Island, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

A jury found Defendant, James Roy Pearson, guilty of robbery and pursuant to such verdict the Circuit Court of Rock Island County entered its judgment of conviction and sentenced defendant to a term of from 3 to 7 years in the penitentiary from which judgment and sentence defendant appeals.

Shortly after Theodore Kononovs left Woody’s Clover Club Tavern on June 26, 1969, he was approached from behind by two men. One knocked his glasses off, covered his face and held his arms while the other went through his pockets taking his wallet and keys. Kononovs fought to free himself. The person holding him removed his hands from Kononovs’ eyes and slipped off his wrist watch. Kononovs testified he turned and saw James Pearson, the same man that he had been seated next to in the tavern. According to the witness, Pearson ran into the darkness although there is some confusion regarding which of the men ran where.

Thelma Thornton, who was working in the Clover Club, observed Pearson whom she knew, “tussling” with Kononovs in front of the tavern. When she saw them, they were not face to face and Pearson had Kononovs around the neck.

The defendant denied involvement in the robbery but admitted being in physical contact with the complainant outside the tavern. Defendant admitted angry words may have passed between him and the complainant in front of the tavern, since the complainant had previously asked him for aid in procuring a woman.

After the robbery Theodore Kononovs was taken to the police station and given a packet of twenty-five photos, one of which was that of James Pearson. Kononovs went through the packet identifying Pearson’s photo as that of his assailant. The following morning Pearson was arrested.

In seeking to reverse his conviction and sentence defendant argues that he was denied a fair trial because the State shifted the burden of proof to defendant requiring him to prove his innocence and also make inflammatory and prejudicial remarks to the jury.

During its case in chief the State called Hollis McBride, a customer of the tavern, who had been there shortly before the incident took place. He testified that he saw the complaining witness in the tavern and that prior to the incident he had spoken to defendant arid a friend of defendant’s also an acquaintance of the witness, Gene Oliver. According to his testimony McBride had left the tavern before the robbery but did see Pearson walking south from the tavern sometime later.

Defendant Pearson testified in his own behalf but in such testimony did not refer to Gene Oliver. However on cross-examination the foHowing took place, “State’s Attorney: Q. And if Gene Oliver was there, he might have something to say to these people that you weren’t the right person. Isn’t that a fair assumption? Defendant A. (No answer) State’s Attorney: Q. Are you saying Mr. McNeal [defense counsel) didn’t bring Gene Oliver here? Is he trying to hide something, or are you trying to hide something? Mr. McNeal: I am going to object * * * Mr. Braud: I want to know where Gene Oliver is. Defendant: A. I didn’t know where he was.” During the closing argument, the State’s Attorney refreshed the jury’s recoUection of this improper exchange by demanding to know why Gene Oliver was not produced to prove the defendant’s innocence. “Did he tell the police at that time, “You got the wrong man, Gene Oliver saw me in there, Why don’t you ask Gene Oliver. Why don’t you ask Gene Oliver who went out behind him’. “* * * Why didn’t he tell the police, ‘Bring Gene Oliver, He’ll tell you what a good guy I am, and in fact, that two other people committed this crime’, but he didn’t.” Later in his closing argument the State’s Attorney declared, * j (jojj’f- think it is an excuse to come in here and say, ‘I don’t remember’. If he didn’t do it, tell us who can prove it. Say, ‘Gene Oliver can teU you about it.’ * *

We have recently had occasion to consider at some length in People v. Pepper, (Ill.App.2d), N.E.2d (opinion filed December, 1971), the problem which results when the State argues the unfavorable inferences from the defendant’s failure to caU witnesses. According to People v. Munday, 280 Ill. 32, 117 N.E. 286, People v. Rubin, 366 Ill. 195, 7 N.E.2d 890 and People v. Smith, 74 Ill.App.2d 458, 221 N.E.2d 68, if a person possessing facts having a bearing upon the charges against the defendant is equally accessible to the prosecution and the defense it is improper for the State to comment on the failure of the defense to caU that individual. The record discloses no inequality of accessibility but rather an incomplete investigation. The fact that the State may not have ascertained the existence of the witness does not prove the witness to be inaccessible thereby shifting the obUgation to produce such witness to the defendant. The cross-examination of the defendant in this regard is particularly objectionable since the defendant did not in his direct testimony aUude to Ofiver.

When the cross-examination of defendant and the prosecutor’s remarks to the jury are considered together there can be little doubt of their improper and prejudicial effect.

Defendant has also complained of other improper remarks by the State’s Attorney during final argument but since it is our opinion that this case must be tried again we believe it unnecessary to consider such remarks in detail since we hope they will not recur. It is sufficient to say that we believe the remarks of the State’s Attorney in expressing his personal beliefs and accusing defense counsel of trickery and indicating that the community wanted the conviction, all interjected irrelevant issues into the case depriving defendant of a fair trial.

For the foregoing reasons the judgment of the Circuit Court of Rock Island County is reversed and remanded with directions that defendant be granted a new trial.

Reversed and remanded with directions.

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


author: Mr. JUSTICE SCOTT

text:
    Donald R. Davenport, Plaintiff-Appellant, v. Board of Fire and Police Commissioners of the City of Peoria et al., Defendants-Appellees.
    (No. 69-106;
    Third District
    — January 14, 1972.

      Jack A. Brunnenmeyer, of Peoria, for appellant.
    Duane G. Stone, of Peoria, for appellee.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal from the circuit court of Peoria County.

In the early morning hours of August 13, 1968, Donald R. Davenport, the plaintiff, was a police officer in the City of Peoria and with a fellow officer was proceeding home on a motorcycle. Both plaintiff and his companion were off duty but in accordance with the rules of the police department were armed. As plaintiff passed a tavern known as the T. T. Club he voluntarily stopped and entered the place of business. The T. T. Club was considered a low class establishment and located in what was considered a trouble area in the city of Peoria.

The evidence is conflicting but it establishes the fact that outside the tavern there was a confrontation between the plaintiff and one Mike Young. The plaintiff claims that Mike Young and his brother, Jimmie Young, were antagonistic to him because he had previously arrested Mike Young. The plaintiff testified that as the result of threats made by Jimmie Young and an anonymous phone call he was fearful for the safety of his family and himself. At the time of the confrontation outside the T. T. Club the plaintiff testified that he accused Mike Young of making the statement that he wanted to kill him and plaintiff further testified that he warned Mike Young to stay away from his home and not to intimidate his family. Mike Young re-entered the club but soon came outside again, at which time the plaintiff walked up behind him, knocked or pushed him to the ground and then hit him. The plaintiff claims that he thought Mike Young was armed and that he was fearful for his safety, but a search conducted by the plaintiff disclosed that Mike Young was unarmed. Mike Young’s testimony was to the effect that after tire first conversation with the plaintiff he left the T. T. Club to go to the police station and he was then attacked by the plaintiff and that while lying on the ground he noticed that the plaintiff had a gun so he offered no resistance when plaintiff hit him, called him names and threatened to kill him if he reported the incident to the police.

The incident was so reported to the police by Mike Young and on the following day the plaintiff was suspended by the Board of Fire and Police Commissioners of the City of Peoria as the result of charges being filed by the Superintendent of Police. A hearing on those charges was had on August 29, 1968, and plaintiff was discharged from the service of the City of Peoria Police Department. The commission concluded that the plaintiff was guilty of conduct unbecoming an officer which might be detrimental to the service.

The plaintiff filed for an administrative review of the Boards decision and the circuit court of Peoria County affirmed the action of the Board of Fire and Police Commissioners which resulted in the discharge of the plaintiff. It is from this order that the plaintiff appeals.

The first issue raised on appeal by the plaintiff is that the Commission committed error when it refused to allow impeachment evidence to be presented against witnesses for the prosecution. We agree with plaintiffs contention that it is generally proper to cross examine a witness to bring out unlawful and disreputable occupation and activity as affecting credibility. (People v. Crump, 5 Ill.2d 251, 125 N.E.2d 615; People v. Gibson, (Ill.App.2d), 272 N.E.2d 274.) However, after examining the record we fail to see where the plaintiff was denied the right to impeach the credibility of the witnesses who testified for the Commission. On cross examination Mike Young admitted that he had been arrested for throwing a piece of concrete at a city squad car and for gambling while he was a patron of a disorderly house. O. C. Horton, whose testimony was offered to corroborate that of Mike Young, admitted on cross examination that he had been arrested so many times he had lost count. Jessie Russell and Charles Young both admitted on cross examination that they had been arrested so many times he had lost count. Jessie Russell and Charles Young both admitted on cross examination that they had previously been convicted for felonies. Jimmie Young admitted that he was not gainfully employed yet owned a 1966 Cadillac automobile and had previously been arrested for disorderly conduct. All of these witnesses were called by the Commission and in view of their admissions on cross examination we cannot agree with plaintiffs contention that he was precluded from impeaching witnesses who were testifying against him.

The plaintiff further argues that he was not permitted to present impeachment evidence to the effect that there was a conspiracy among a group of negroes for the purpose of getting the plaintiff’s job. We cannot agree with the plaintiff because two individuals who testified on his behalf were permitted to testify on direct examination that Mike Young and friends of his had made statements that they were going to “get officer Davenport.” It is true that plaintiffs witness, Officer WiHiam A. HiH, was prevented from testifying as to the activities of Mike Young when an objection was made to such a line of questioning. The Commission sustained the objection and made the statement that “Mr. Young testified he had been arrested on several occasions and that satisfies the record.” We concur in the Commissions ruling, in that the record was already replete with the arrest records of Mike Young and other Commission witnesses and no useful purpose would be served by permitting repetitious testimony.

The witnesses who were caUed by the Commission and testified against the plaintiff cannot be classed as desirable citizens, yet the Board after evaluating all testimony rendered a decision that the plaintiff should be discharged from the City of Peoria Police Department. The decision of the Board should not be reversed by a reviewing court unless the opposite conclusion is clearly evident and the reviewing court determines only whether there is any evidence which fairly tends to support the Board’s decision. (Etscheid v. Police Board of City of Chicago, 47 Ill.App.2d 124, 197 N.E.2d 484.) In reviewing findings of administrative agency, courts can only set aside findings if it is against the manifest weight of the evidence and may not review the evidence or make independent determination of facts. Kelley v. Civil Service Commission, 31 Ill.App.2d 155, 175 N.E.2d 630.

Examining the record and applying these rules to the testimony adduced during the hearing before the Commission it is clear that the record establishes that the T. T. Club and its vicinity constituted a trouble area in the city of Peoria. The evidence also estabfishes without contradiction that the plaintiff, a police officer, while armed and off duty, stopped at the T. T. Club for personal reasons. The evidence faffs to show that the plaintiff at any time attempted to solve any problem which he might have had with Mike Young by asking for assistance from the Peoria PoHce Department, nor did he resort to legal process, but instead he took it upon himself to solve any problem which he may have had by his own personal methods. There is ample evidence in the record to support the testimony of Mike Young that the plaintiff without provocation attacked him. The only contrary evidence received in regard to the attack was that given by the plaintiff who denied ever having caused Mike Young any bodily harm or ever having abused or assaulted him. It was the Commission, not the court of review, who had the duty and the right to determine the credibility of the witnesses appearing before it. (Davis v. Board of Fire and Police Commissioners of City of Peoria, 37 Ill.App.2d 158, 185 N.E.2d 281; Taylor v. Civil Service Commission of City of Chicago, 33 Ill.App.2d 48, 178 N.E.2d 200.) We therefore cannot conclude that the finding of the Commission is against the manifest weight of the evidence.

The plaintiff claims that the evidence presented did not support the finding that his continuation as an officer in the Police Department was detrimental to the service. Coupled with this contention the plaintiff argues that the Commission failed to show that his dismissal was a discharge for “cause” as defined by law. If the evidence received by the Commission establishes that there was “cause” for its action then we can assume ipso facto that the plaintiff’s conduct was detrimental to the discipline and efficiency of the police service of the City of Peoria and his discharge was warranted.

The word “cause” is not defined by statute but our courts have construed it to be some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognizes as good cause for his no longer holding the position. (Coursey v. Board of Fire and Police Commissioners, 90 Ill.App.2d 31, 234 N.E.2d 339.) Further our courts have held that “cause” is to be defined and applied in the discretion of the Board and a court should not reverse unless the Board’s findings are so unrelated to requirements of the service or are so trivial as to be unreasonable or arbitrary. (Davis v. Board of Fire and Police Commissioners, supra; Nolting v. Civil Service Commission of the City of Chicago, 7 Ill.App.2d 147, 129 N.E.2d 236.) Without again restating the facts in the instant case, which clearly support a finding that the plaintiff attempted to take the law into his own hands, we can only conclude that the findings of “cause” by the Commission are without question directly related to the requirements of the service and are not trivial or arbitrary. The City of Peoria is a metropolitan area and the problems confronting such a city are many. The Police Department is charged with the duty to enforce the Criminal Code and numerous city ordinances and such enforcement presents many difficulties to the Police Department. In order to surmount these difficulties and to fulfill the responsibilities placed upon such Police Department it is necessary that the department be staffed with well trained and organized personnel. Discipline is not only vital but absolutely essential to this force of armed men who protect the life and property of the citizens in the city. Discipline is not only necessary for the proper functioning of the department but in addition if discipline were absent the Department would lose the respect of the public and should this occur the Department would become incompetent and demoralized. When we consider the magnitude of the importance of an efficient and well disciplined Police Department we cannot find the actions of the plaintiff in the instant case trivial or of minor import. See Nolting v. Civil Service Commission, supra.

Lastly, the plaintiff contends that the Commission’s consideration of his conduct while he was off duty makes him a second class citizen in that he has a right to not be “bullied” by a person such as Mike Young. The record is devoid of any evidence that the plaintiff was “bullied” by the said Mike Young, but on the contrary it clearly establishes the fact that the plaintiff was the aggressor. It has long been settled in our state that there is no distinction between “off duty” or “on duty” misconduct by a police officer. Should a police officer engage in misconduct which is detrimental to the service it would be absurd to say that he is clothed with a cloak of immunity if such misconduct occurred during “off duty” hours. By the very nature of his employment a police officer is in the eyes of the public and for the good of the department must exercise sound judgment and realize his responsibilities to the department and the public at all times. See Joyce v. City of Chicago, 216 Ill. 466, 75 N.E. 184.

For the reasons set forth we hereby affirm the judgment of the circuit court of Peoria County.

Judgment affirmed.

STOUDER, P. J., and DIXON, J., concur.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Lee King, Defendant-Appellant.
    (No. 11370;
    Fourth District
    — November 23, 1971.

      Rehearing denied December 22,1971.

      Morton Zwick, Director of Defender Project, of Chicago, (Bruce L. Herr, of Defender Project, of counsel,) for appellant.
    Lawrence E. Johnson, State’s Attorney, of Urbana, (Kenneth E. Baughman, of counsel,) for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant was indicted for burglary with intent to commit theft and burglary with intent to commit rape. The jury returned a general verdict of attempted burglary. The court imposed sentence of two to seven years. Defendant appeals contending that the evidence is insufficient to prove the intent beyond a reasonable doubt as to either count.

The prosecuting witness shared a ground floor apartment with another girl. She had returned home at 1:00 A.M. and in retiring had undressed to the minimum of feminine apparel. She heard noises of fumbling at the door which she thereupon locked. Thereafter, there being other noises, she saw two eyes looking in at her beneath the windows and over the top of an air-conditioner in the window. She went to the room of the girl who shared the apartment and the police were called. The latter were at the scene very quickly and as they went around the house a crash was heard. The officers found defendant standing on a lawn chair with his head and shoulders through the window of the room of the prosecuting witness. An air-conditioner was on the ground beneath the window. A police officer noted that the window had been raised. The evidence is that the air-conditioner was held in place in the window only by the window sash, there being no other fastening or support.

It is defendant’s contention that he was intoxicated as the result of result of drinking from 1:00 P.M. the preceding afternoon until between 10 and 11 on the night prior to this event. His whereabouts between the latter hours and 1:00 A.M. are not shown. Defendant says he can’t remember. He testified that he could not recall being at the door of the apartment. Certain friends testified to the fact that defendant was at their apartment from 7 until 10:30 or so drinking whiskey and beer and that he was intoxicated when he left. Upon the arrival of the police officers they first saw defendant standing on the lawn chair at the window. Upon being challenged, he fell or got off of the chair and rolling on the ground complained he was iff and needed help. No weapons were found. Defendant had a scarf and gloves and one officer said that he was wearing a three-quarter length coat. One of the defendant’s hosts says that he told defendant to take a coat or jacket when he left. It does not appear in the abstract whether defendant did so.

The evidence is that upon arrival at the police station, defendant was cooperative, that he stood and moved without difficulty and participated in fingerprinting and other routine. A portion of the police report was checked to show that defendant was “drunk”. No other tests than such observations were made.

Defendant argues that he was intoxicated and seeking relief from the cold weather. The only specific evidence is that the temperature was between twenty and thirty degrees. Such matters are essentially items of credibility for the trier of fact. In People v. Martin, 77 Ill.App.2d 183, 222 N.E.2d 180, the defendant asserted that the unauthorized entry was to escape the heat. In People v. Hart (Ill.App.2d), 270 N.E.2d 102, the defendant sought to justify his entry as seeking rehef from the cold.

In arguing that the proof of intent was insufficient, defendant asserts that, at most, his conduct was that of a trespasser or a “peeping Tom”, and that he feU through the window as a result of the unpredictable action of the lawn chair. In the abstract there actuaUy is no testimony to such effect, and the conclusion must be reached from the argument. Such argument overlooks the testimony of the police officer that the window had been raised. The jury might reasonably infer that the unfastened air-conditioner feU when defendant raised the window. An essentiaUy inconsistent argument of the defendant is that the fact that the jury returned a verdict of attempted burglary rather than burglary as charged demonstrates that the jury believed that “no intent” was proven. The reasoning is involved. The jury were instructed as to the offense of burglary in the language of the statute. (Ill. Rev. Stat. 1969, ch. 38, par. 19 — 1(a)), that burglary is committed when one without authority knowingly "enters” a building. Defendant’s next premise is that the fact that defendant’s head and shoulders were through the window and inside the room would be a sufficient entry in fact to constitute the offense of burglary. Ergo, it must be concluded that the jury determined that the prosecution had failed to show any intent as set forth in the cited statute, but rather that the jury must have concluded that the defendant went through the window involuntarily when the air-conditioner fell out.

Neither the abstract nor the argument discloses that the jury were actually instructed that the entry of head and shoulders was sufficient to consummate the offense of burglary. It seems as reasonable to conclude that the jmy were more concerned with the problems of whether or not it could be said that defendant had entered the building when the jury found only attempted burglary.

Defendant argues that there is not sufficient evidence to show either intent charged in the respective counts. It is agreed that the trier of fact may infer intent from the acts and conduct of the defendant which, with attending circumstances in evidence, reasonably indicates such an intent to the minds of others. People v. Soznowski, 22 Ill.2d 540, 177 N.E.2d 146. See also People v. Maffoli, 406 Ill. 315, 94 N.E.2d 191.

Acts performed in committing an offense may include a primary intent with an alternative or concurrent intent to commit another offense. People v. Bashic, 306 Ill. 341, 137 N.E. 809; People v. Coolidge, 26 Ill.2d 533, 187 N.E.2d 694.

In People v. Johnson, 28 Ill.2d 441, 192 N.E.2d 864, the court noted that there is an assumption that the entry of the building of another is not purposeless and that in the absence of other proof, theft is a likely purpose. (See also People v. Rossi, 112 Ill.App.2d 208, 250 N.E.2d 528.) In this record there are no circumstances in evidence which negate the intent which might be inferred from the acts in evidence as was the case in Soznowski.

Judgment affirmed.

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


author: Mr. JUSTICE CRAVEN Mr. JUSTICE TRAPP,

text:
    Betty Jane Ploense, Plaintiff-Appellee, v. Illinois Power Company, Defendant-Appellant.
    (No. 11318;
    Fourth District
    — November 23, 1971.

      Rehearing denied December 21,1971.

      TRAPP, J., dissenting.

      Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington, (William R. Brandt and William C. Wetzel, of counsel,) for appellant.
    Costigan & Wollrab, of Bloomington, for appellee.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

This action was to recover damages for wrongful death of Gerald Harvey Ploense occasioned by alleged negligence of defendant, Illinois Power Company, in maintenance of its electrical distribution lines.

A jury returned a verdict for plaintiff for $40,000 and a judgment was entered thereon in the amount of $30,000, the cause of action having accrued prior to the removal of the statutory limit of such actions.

The suit arises out of work being done by plaintiffs decedent, Gerald Harvey Ploense, in connection with a sign which had been erected by his employer, John Warren Anderson, on the Sinorak property at the intersection of Main Street and Route 66 on the south edge of Blooming-ton, Illinois. This sign advertised the restaurant on the Sinorak property which abutted South Main Street with an entrance and exit road running back to a large parking lot, restaurant and drive-in movie facility. The property had a number of wires of Illinois Power Company along its south boundary and above the sign. On the date of the accident, while working on some changes to be made in the sign, plaintiffs decedent came in contact with a wire of defendant, was electrocuted, and died.

Defendant assigns numerous grounds for error. It contends that the plaintiff failed to prove the essential elements of her case, failed to prove any proximate cause of an alleged negligent act of defendant as alleged, that plaintiffs decedent was guilty of contributory negligence as a matter of law, that the trial court erred in rulings on objections to evidence, that the jury was not properly instructed, that the verdict was contrary to the clear preponderance or manifest weight of the evidence and to law, and that the court erred in not instructing the jury for the defendant at the close of all the evidence, and in failing to grant defendant’s post-trial motion.

The evidence was that John Warren Anderson, employer of Gerald Harvey Ploense, in February of 1963 called Illinois Power Company, informing its engineer, Clarence Alburtis, that he intended to erect a sign on the Sinorak property, and asking what clearance from defendant’s wires would be necessary. The engineer told him that eight feet was required. Anderson stated that he was planning a taller sign and that Illinois Power Company would either have to relocate its lines to allow him to put in a taller sign or he would design a lower sign. He indicated that he either would redesign the sign so that it would have adequate clearance or he would contact Illinois Power Company to make adjustments to its lines. Anderson did not call the company again until after plaintiffs decedent’s death.

Some time after Anderson’s conversation with Alburtis, Anderson and his employee, Robert Hohnstreiter, went to the Sinorak site and dropped a tape measure from what appeared to be the level of the lowest wires down to the driveway surface of the entrance drive to the property. Anderson testified this measurement was 38 feet and Hohnstreiter testified it was 35 feet from the lowest wire level to the driveway.

The sign was constructed over a two-month period by Anderson and erected on the premises over a two-week period. Both Ploense and Hohnstreiter worked on erection of the sign during this two-week period. The evidence showed that during this period the wires of defendant were above the sign, open and visible, and that the sign was designed to avoid any necessity for the workmen to come within ten feet horizontally of the wires even if working on top of the sign.

The sign was forty feet in length, and as erected extended in a north-south direction. As originally constructed it contained the word “Smorgasbord,” with the word “Lunch” on top and to its south end, and the word “Dinner” centered beneath the word “Smorgasbord.” It was a back-to-back sign, reading the same on both sides. It had been constructed in a north section and a south section. The sections were bolted together, being 30 inches apart, back to back, one side facing easterly and one westerly. Only some structural steel members were in between the faces, tieing them together, with a small electrical transformer that operated the neon sign bolted to the structural steel. The smorgasbord portion of the sign was designed to be 30 foot tall. Four wires of defendant ran in an east-west direction, located above and toward the north end of the sign. These wires carried 7200 volts of electricity and were not insulated. Anderson testified that at the time the sign was installed in July and August 1963, the wires were at least 10 feet above the sign and that he was able to stand erect on the sign and walk under the wires.

On the day of the occurrence, which was one or two months after the last work had been done on erection of the sign, Ploense and Hohnstreiter were engaged in moving some lettering on the sign from one portion of the sign to another. The owner of the premises had decided to have put up on the sign the name “Sinorak.” This required moving the word “Dinner” to the right and the word “Lunch” from the top so as to position it to the left and beneath the word “Smorgasbord”. The word “Lunch” was being placed to the left or south to stay away from the wires. Ploense did the drilling and Hohnstreiter put the bolts in to hold the sign. Ploense then tightened the bolts.

As the last part of the operation, Hohnstreiter was using an acetylene torch to cut clips off of the poles on top of the sign so as to permit slipping the word “Sinorak” over them. Ploense and Hohnstreiter had worked on the job all day. Both Ploense and Hohnstreiter were up on the sign when about completed at 2:00 or 3:00 P.M., Ploense was tightening up the bolts in between the sign. Hohnstreiter testified that he went down between the signs on an aluminum ladder which extended from the ground up in between the two faces of the sign, and climbed up a wooden ladder placed against the sign in order to cut the clips off of the poles. This job took about 30 minutes, during which time he did not see Ploense as Ploense was working on the lunch sign below him and about ten feet below the top of the sign. Hohnstreiter testified that as he was completing the cutting, he heard an arcing sound and turned around and saw Ploense at the far north end on top of the “Smorgasbord” sign with an electric wire in his hand. Hohnstreiter got the torch out of his hands, removed his goggles and tried to work towards Ploense, walking between the sign faces on the small angle irons that were 30 inches apart. Ploense had both arms over a wire, behind his back, and rode the wire down to the top of the sign. When Hohnstreiter was about six feet from Ploense, the wire burned in two on top of the sign and Ploense dropped through. He later was pronounced dead by the coroner.

Prior to the accident there were four wires. The third wire from the north was broken and fell to the ground. It was replaced immediately after the accident by the Illinois Power Company. The day after the occurrence, Alburtis, defendant’s engineer, measured the wires. He testified that the measurements then made located the northerly-most wire, a hot wire, as three foot seven inches above the top of the letter “S” on the sign; the next wire, being the neutral wire, as five feet nine inches above the sign. The third wire he testified was a hot wire and the one which was replaced after the accident, and it was five feet eleven inches above the sign. The fourth wire was furthest to the south and was four feet two inches off the top of the sign. He further testified that he did not know how high or low these wires were on the date of the occurrence.

Alburtis testified that at all times from the date of installation to the date of the occurrence the height and span of the wires met or exceeded the General Order of the Commerce Commission, which required a minimum height for the line above ground of approximately 24 feet 4 inches. He further testified that the General Order of the Commerce Commission referred to systematic inspection of power lines; that this customarily was done by all of their personnel in going about to read meters or in driving about. He knew of no report having been made prior to the accident as to proximity of the wires.

Over objection of the defendant, Anderson was permitted to testify by an order of proof that he had worked with Ploense with electricity during the three years he had been employed and had observed him around electrical energy and that his opinion was that Ploense had careful habits conducting himself in the presence of electrical energy. Hohnstreiter also was permitted, over objection, to testify that Ploense had careful habits around electricity.

The coroner of McLean County testified that Ploense had no burn marks on his hands. He identified plaintiff’s exhibit 7, a photograph he had taken of Ploense’s body showing burn marks on his back. Defendant objected to the admission of this exhibit as being prejudicial and inflammatory and offered to stipulate to a description of what the picture showed. The court overruled the objection and admitted the photograph.

Much of the testimony in this case and a large portion of the respective briefs before this court deal with the design and construction of the sign by Anderson and measurements of the sign in relation to the wires of defendant company at the time of the original installation of the sign and after the accident. This is an effort to reargue the facts before this court and to have this court pass upon those facts which already have been heard and determined by the jury and the trial court. It is not our function on appeal to reweigh the facts and substitute our judgment for that of the trial court and jury.

As we review this case, we can but conclude that it presented factual questions for the jury. Whether defendant power company was under a duty to insulate its wires at the location of the accident was a factual question considering the conditions and circumstances, including whether it was reasonably foreseeable that persons might reasonably come into proximity of the wires. From the nature of the electrical business and highly charged wires, an electric company owes a duty to see that its wires are properly placed and properly insulated where the conditions and circumstances indicate that persons may come into reasonable proximity to the wires. Merlo v. Public Service Co. (1942), 381 Ill. 300, 45 N.E.2d 665; Austin v. Public Service Company (1921), 299 Ill. 112, 132 N.E. 458.

Where, as here, defendant power company’s design engineer was apprised of the proposed erection of a sign in proximity with its high .voltage wires, it may well be held negligent in failing to make any inspection of the location of its wires and their height at that site. The evidence here showed no action on part of defendant to inspect the height of these wires after being notified of the proposed construction or in fact any affirmative inspection ever having been made of them subsequent to 1962 when the voltage in them was increased. Under these circumstances, there was sufficient evidence to permit the jury to pass upon the question of defendant’s negligence.

The only evidence of the height of these wires in 1965 when the sign was constructed was the testimony of plaintiff’s witnesses, Anderson and Hohnstreiter. They walked erect on top of the sign on numerous occasions under defendant’s wires. They testified that at that time these wires were about 8 to 10 feet above the sign. So far as any testimony appears, this was the condition of the wires when Ploense observed them and worked on the sign dining and upon completion of its construction. Under this state of the evidence, it cannot be said that Ploense was guilty of contributory negligence as a matter of law in working under these wires on the day of the accident.

There is no direct evidence as to the height of these wires above the sign on the date of the accident. According to the measurements made by defendant on the day after the accident the two hot wires remaining up were 3 feet 7 inches and 4 feet 2 inches above the sign. Plaintiff’s Exhibit 7 showed bum marks in the center of Ploense’s back. This exhibit, in view of the evidence that he was 5 feet 11 inches taU, would confirm that the wires were considerably closer to the sign than 8 to 10 feet at the time of the accident. Whether the wires had sagged or lowered since original construction of the sign was a jury question. At aU times these wires were under the exclusive control of the defendant. This testimony presented a question to the jury of defendant’s negligence in connection with its duties of inspection and maintenance of the high voltage wires.

Defendant contends that admission of habit testimony of due care of plaintiff’s decedent was error because his co-employee, Hohnstreiter, was an eyewitness. The trial court heard testimony of Hohnstreiter before admitting the habit testimony. Hohnstreiter testified that he had not observed Ploense for 30 minutes prior to the time that he heard an arcing noise, looked and observed Ploense entangled in the wires. Under this testimony, Hohnstreiter did not see the actions and conduct of Ploense leading up to and immediately involved in the occurrence. Hence, he was not an eyewitness to the occurrence. The trial court did not err in admitting testimony of careful habits of decedent. Plank v. Holman, 46 Ill.2d 465.

Defendant contends that the admission in evidence of plaintiff’s exhibit 7, a color photo of the back of plaintiff’s decedent, was reversible error because of its dramatic effect and emotional appeal. Whffe this exhibit no doubt tended to appeal to emotion, it was an accurate and relevant exhibit with probative value tending to establish the important issue as to the height of the wires with which he came into contact. Under such circumstances, its admission was within the discretion of the trial court. Darling v. Charleston Memorial Hospital (1st Dist. 1964), 50 Ill.App.2d 253, 200 N.E.2d 149.

Defendant also contends various errors in the giving or refusing of instructions and rulings as to applicability of the Health and Safety Rules of the Illinois Industrial Commission. The instruction tendered by defendant setting forth Health and Safety Rules of the Illinois Industrial Commission was not applicable to this case which involved no claim between an employer and an employee. (Jones v. S.S. & E. Corporation (1st Dist. 1969), 112 Ill.App.2d 79, 250 N.E.2d 829.) Furthermore, certain words used in those rules with respect to duty of workmen to crawl out on thrustouts or projecting beams to wear lifelines and safety belts have no application to type of case here. Such instruction properly was refused.

Defendant objected to plaintiff’s instruction 5 as not being complete in that it failed to contain language set forth in the supplement to Illinois Pattern Jury Instruction 12.05 but contained only the language in the original section 12.05. This was an instruction to the effect that if defendant was negligent and its negligence was the proximate cause of decedent’s death, it is not a defense that something else may also have been a cause of death. The supplement provides for further instruction where the sole proximate cause was something other than defendant’s conduct. Under the testimony in this case, there was no evidence that the sole proximate cause of death was something other than the conduct of defendant. It, therefore, was not error to give plaintiff’s instruction 5 as submitted.

Considering the instructions as a series, the jury was properly instructed.

Having carefully reviewed the errors complained of, we find that the case was submitted to the jury free of reversible or prejudicial errors and that the evidence supports the verdict of the jury and the judgment entered.

Judgment affirmed.

SMITH, P. J., concurs.

Mr. JUSTICE TRAPP,

dissenting:

Upon the facts of record this case is controlled by Witzig v. Illinois Power Company, 114 Ill.App.2d 139, 251 N.E.2d 902, May v. Illinois Power Company, 342 Ill.App. 370, 96 N.E.2d 631 and Withey v. Illinois Power Company, 32 Ill.App.2d 163, 177 N.E.2d 254. In each of these cases, the electric lines were clearly apparent or known to the injured party and it was determined that there was contributory negligence as a matter of law.

This work was undertaken and carried on under an existing power • transmission line. The decedent was a man of some years of experience in electrical work and in working in the vicinity of high voltage lines. It was apparent to the men on the job that the lines were uninsulated and were known to be high voltage. It was clear that the employer and the deceased employee were aware of the proximity of the lines to the sign being constructed, had observed them on many occasions, and initially had exercised particular care to avoid such lines.

Consideration of plats and drawings offered in behalf of plaintiff belie the argued contention that the decedent could expect to work within a clearance of 8 or 10 feet above the sign being constructed. Such drawings indicate that the principal portion of the sign was almost 31 feet high and that a smaller portion was almost 34 feet high. The decedent is described as being 5 feet 11 inches tall. Plaintiff’s witness Hohnstreiter best recalled that during the winter he assisted in measuring the height of the transmission line and at that time the wires were 35 feet above the ground. Anderson testified that on such occasion the wire was measured at 38 feet above ground level. The record shows that the fact that the lines would contract with cold and expand in heat causing the wires to sag was known to the men on the job.

Upon the physical facts observed or readily observable by one in the exercise of ordinary reasonable care, it seems manifest that the decedent failed to exercise caution for his own safety as would an ordinarily prudent person under the circumstances and was in fact guilty of contributory negligence as a matter of law. Upon the stated authorities, I must dissent from this opinion.


author: Mr. JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Lee Lewton, Defendant-Appellant.
    (No. 11570;
    Fourth District
    — January 11, 1972.

      Matthew J. Moran, of Defender Project, of Chicago, (Steven Clark, of Champaign, of counsel,) for appellant.
    Lawrence E. Johnson, State’s Attorney, of Urbana, (Robert P. Steigmann, Assistant State’s Attorney, L. Keith Hays, Jr., Law Student, of counsel,) for the People.
   Mr. JUSTICE SMITH

delivered the opinion of the court:

The defendant appeals from a sentence of one to eight years in the penitentiary on a charge of forgery and on a plea of guilty previously negotiated and finalized in open court. The defendant’s stance in this court is a request that we reduce his sentence because it is excessive. No other error is alleged. Defendant’s brief can only be characterized as a personally-expressed opinion either of the brief writer or of the defendant unsupported by applicable citations factually applicable or record facts warranting our interference. For this court to alter in any way the sentence imposed would be to judicially abrogate the negotiated plea made and consummated in open court. In the absence of controlling reasons, legal or factual, we see no reason to abrogate the agreement made prior to sentence.

Defendant, his counsel and the assistant State’s Attorney were in court. The record shows that it was stated to the court that the sentence to be imposed would be one to eight years and that no additional charges would be filed that could be filed and prosecuted against the defendant on anything then known to the State’s Attorney. The defendant did not ask for probation. He received a minimum sentence of one year. The defendant affirmatively and squarely declined the opportunity to testify. The court is required to furnish to the defendant the full opportunity to explain his acts and to offer evidence in mitigation. These things the defendant may waive, these things he did waive and through his attorney made the agreement as to the sentence imposed and in consideration thereof received a dismissal of the other counts in the indictment and that he would be prosecuted on no offenses then known to the State. This is the record. The propriety of the trial court’s judgment must be based on that record. (People v. Brown, 107 Ill.App.2d 406, 246 N.E.2d 61; People v. Nelson, 41 Ill.2d 364, 243 N.E.2d 225.) Imposition of sentence is a matter of judicial discretion and unless there is a showing in the record of a substantial and justifiable reason for so doing, we should not and we will not disturb the sentence of the trial court. There is no such showing. People v. Hanserd, 125 Ill.App.2d 465, 261 N.E.2d 317.

The judgment is affirmed.

Judgment affirmed.

CRAVEN, P. J., and SIMKINS, J„ concur.