author: Mr. JUSTICE ADESKO

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Arthur Lee Young, Defendant-Appellant.
    (No. 59291;
    First District (4th Division)
    January 22, 1974.

      James J. Doherty, Public Defender, of Chicago (Daniel Miranda, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel, and Ricky L. Petrone, Senior Law Student), for the People.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

The defendant-appellant was indicted for murder and in a bench trial in which all the evidence was stipulated defendant was found guilty of the lesser included offense of voluntary manslaughter. A sentence of a minimum of 5 years and a maximum of 15 years in the Illinois State Penitentiary was imposed. In this appeal defendant maintains that the stipulated bench trial was tantamount to a plea of guilty and therefore, it was necessaiy to admonish him in accordance with Supreme Court Rule 402 (Ill. Rev. Stat. 1973, ch. 110A, par. 402). Defendant also contends that the stipulated evidence was insufficient to establish the offense of voluntary manslaughter beyond a reasonable doubt. We do not agree with either of these contentions.

On November 21, 1972, defendant’s case was before the trial court and defense counsel requested a conference so that “we might be able to dispose of the matter.” The trial court before granting tire request fully informed defendant of what would occur at such a conference and inquired whether defendant agreed to permitting his attorney to confer with the State and the court regarding his case. Defendant responded affirmatively. A partial conference was held and the record indicates the conference was to be continued to December 15, 1972. However, defense counsel informed the court that there would be no puipose in continuing the conference because the defendant had indicated the results of the conference were unsatisfactory. Defense counsel then requested that the case be set for jury trial and the case was set for trial on December 14, 1972.

On December 14, 1972, defendant’s attorney made a motion to dismiss the indictment which was denied. Defendant on his own made a motion to have a bar association lawyer assigned to his case, and this motion was also denied. The case was continued to January 31, 1973.

When the defendant’s case was called on January 31, defense counsel informed the court that the defendant had decided to accept the results of the conference. The court could not remember what those results were and the case was temporarily passed. When it was called again, the court stated to defendant, “Your attorney has stated that you wish to plead not guilty, and waive your right to trial by jury, is that what you wish to do?” Defendant responded, “Yes.” The court then admonished defendant as to his constitutional right to a jury trial, but defendant stated he wanted to be tried by the court without a jury. A written jury waiver was signed by defendant. After defendant waived his right to a jury trial the following colloquy occurred between the court and defendant.

“THE COURT: On December 14, 1972, you agreed that your counsel, Mr. Lincoln, would confer with the Court regarding the disposition of your case. That conference was held, and after an examination of all the facts in the case, the Court advised the parties that if the facts were as were disclosed to the Court in the conference, the Court would enter a finding of guilty as to voluntary manslaughter, and impose a sentence on you in the Illinois State Penitentiary for a minimum of five years, and a maximum not to exceed 15 years.
Your counsel at that time stated that he was willing and agreeable to stipulating to the fact in open court, that had been disclosed to the Court off the record, in chambers, and presenting a case to the court on what is called a stipulation as to the facts. That is, none of the witnesses will be present here, who would testify, as it is being stipulated that they would testify, and based upon that stipulation, that stipulated statement of the evidence, the Court would enter the order that the Court said he would enter, if those were the stipulated facts, and if those were the facts that were presented to the Court on a plea of not guilty.
My next question to you is, are you willing that your attorney, Mr. Lincoln, proceed in that fashion, and have the matter disposed of on your plea of not guilty by a stipulation as to the facts; are you willing that he proceed in that fashion?
THE DEFENDANT: Yes.
THE COURT: Very well. Plea of not guilty, jury waived. What are the stipulated facts, Mr. State’s Attorney?”

The stipulation of facts reveals that Mrs. Muse, the wife of the victim, Samuel Muse, would have testified that on February 18, 1972, at approximately 12:30 A.M., her husband was in the community kitchen adjoining their apartment frying fish. The defendant entered the apartment and remarked to the victim, “I smell sardines.” Mr. Muse replied he was frying fish and the defendant stated, “Kiss my ass.” The two men began pushing each other and Mrs. Muse came out of her bedroom and told them not to fight. Mr. Muse went into the bedroom for about 15 minutes and told his wife he was not going to be stopped from frying fish by the defendant. He returned to the kitchen and the defendant, who apparently overheard Mr. Muse’s remark, told Mr. Muse, “Little Nigger, what did you say?” Defendant then shoved Mr. Muse to a table, pulled a gun and fired several shots at him. Mrs. Muse observed these events as she was standing in the bedroom doorway.

. It was also stipulated that Dr. Edward Shalgos, a Cook County coroner’s pathologist, would testify that the cause of death was a bullet wound to the arm and chest, namely, the lungs, heart, pulmonary arteries and aorta.

It was also stipulated that if Detective James Boyle of the Ghicago Police Department were called as a witness, he would testify that he was the investigating officer in this case and that he was sent to Philadelphia, Pennsylvania, to arrest the defendant. On March' 29,. 1972, Detective Boyle and Lieutenant Martin of the Philadelphia Police Department arrested defendant. After defendant was advised of his rights, he admitted shooting Mr. Muse. Defendant’s age and the facts establishing venue were also stipulated.

Defense counsel requested that a stipulation be entered as to what the defendant would testify to if called on his own behalf. It was stipulated that “he would testify that he talked to the victim in the kitchen, that the victim started accusing the defendant of messing with the victim’s wife, and the victim appeared intoxicated, and that before the shooting, the victim, threw a skillet at the defendant, full of hot grease. The defendant ducked and the skillet hit the floor. The victim then picked up a knife and threatened the defendant, and that it was then that the defendant shot the deceased.” It was also stipulated that a police officer would testify that a skillet was found on the floor and that the wall was covered with grease.

After a hearing in aggravation and mitigation, defendant was sentenced to incarceration for a minimum of 5 years and a maximum of 15 years. He was advised of his right to appeal and has now exercised that right.

Defendant maintains that the stipulated bench trial was tantamount to a plea of guilty and therefore; his plea should not have been accepted without substantial compliance with Supreme Court Rule 402 (Ill. Rev. Stat. 1973, ch. 110A, par. 402). The issue as characterized by defendant is whether proceeding by stipulation to a prearranged finding and sentence is a trial or is the procedure in essence a guilty plea? The State maintains that the proceeding in the case at bar is not tantamount to a guilty plea because defendant did not waive his right to assert die defense of self-defense and did assert and preserve that defense in the stipulated evidence. Therefore, the State contends compliance with Supreme Court Rule 402 is not required. Under the circumstances of this case, we are of the opinion that the State’s position is correct.

The defendant in the case at bar never withdrew his plea of not guilty and persisted in asserting the defense of self-defense. It is axiomatic that a trial court has no duty to admonish a criminal defendant of the consequences of a guilty plea until the defendant indicates a desire to so plead. As stated in People v. Peters, 396 Ill. 345, 347, 71 N.E.2d 703, 704 (1947):

“There is no occasion to admonish the defendant as to the effect of a plea of guilty until he has indicated his desire to enter such plea. * * * In the orderly method of procedure the first step is the indication by the defendant of his intention to enter a plea of guilty. The court then admonishes him as to the effect and consequences of such plea. If he then persists in such plea it is accepted and judgment entered on the plea.”

The defendant in the case at bar never indicated a desire to plead guilty.

The conference held between the court, the assistant State’s attorney and defense counsel on November 21, 1972, was entered with the goal being to dispose of the defendant’s case by a plea of guilty. This is indicated by the following statement made by the court to defendant when it was advising him as to what would occur at the conference. The court stated:

“And then the Court will tell both sides, that is the State and your attorney, what his sentence will be if you choose to withdraw your plea of not guilty to this indictment and enter a plea of guilty to the indictment.”

However, as previously indicated, defendant did not initially accept the results of the conference. It was not until January 31, 1973, that defendant informed the court of his willingness to accept the results of the conference but even then defendant was not willing to plead guilty. Defendant wished to plead not guilty, waive a jury trial and submit the case on a stipulation of facts. We think it clear, as the State points out in its brief, that the intention of the defendant and his attorney was to receive the benefit of the court’s disposition to find defendant guilty of voluntary manslaughter and sentence him to from 5 to 15 years but at the same time preserve at least for appeal his defense of self-defense. While this may have been an adept compromise maneuver, the defendant cannot now claim that the proceeding was also tantamount to a guilty plea and that the admonishments of Supreme Court Rule 402 were necessary.

A guilty plea is not merely a confession but amounts to a conviction on the offense charged (Boykin v. Alabama, 395 U.S. 238, 242, 23 L.Ed.2d 274, 279, 89 S.Ct. 1709, 1711-1712 (1969)). The effects and consequences of a guilty plea were well-stated in People v. Wilfong, 19 Ill.2d 406, 409, 168 N.E.2d 726, 728 (1960):

“When a plea of guilty is fairly and understandingly made, it admits every material fact alleged in the indictment and all the elements of the crime with which an accused is legally charged, and obviates the need of any proof whatsoever. (People v. Claybrooke, 15 Ill.2d 586; People v. Hurt, 8 Ill.2d 491.)”

In addition a plea of guilty constitutes a waiver of any defenses an accused may have. (People v. Jackson, 47 Ill.2d 344, 265 N.E.2d 622 (1970); accord, People v. Null, 13 Ill.App.3d 60 (1973).) The defendant was not willing to incur these consequences nor forego his defense of self-defense. Defendant neither directly nor indirectly made an admission of guilt. Under the circumstances of this case, we cannot accept the defendant’s contention that the defendant’s stipulated bench trial was tantamount to a plea of guilty. We are, therefore, of the opinion that the trial court was under no duty to admonish the defendant in accordance with Supreme Court Rule 402.

The defendant has cited the two recent Illinois Supreme Court cases of People v. Stepheny, 56 Ill.2d 237, 306 N.E.2d 872 (1974), and People v. Smith, 59 Ill.2d 236, 319 N.E.2d 760 (1974). However, both cases are distinguishable from the case at bar. In Stepheny the record established that defense counsel agreed to a disposition of the case and that the defendant was at most only vaguely apprised of the procedure. In addition defense counsel admitted his conduct was tantamount to a guilty plea. In the case at bar, Young was fully advised of the conference and its results. He continued to maintain his innocence by asserting the defense of self-defense. In Smith, a stipulation of facts was entered and revealed that the defendant and an accomplice entered the victim’s place of business and robbed him. Defendant voluntarily confessed his participation in the crime. It was further stipulated that the facts were sufficient to find the defendant guilty of the crime charged beyond a reasonable doubt. The defense counsel in Smith presented no evidence. In the case at bar a defense was presented, and there was never an admission of guilt by the defendant. We do not find Stepheny or Smith persuasive under the circumstances of the case before us.

Defendant has also cited three California cases, In re Mosley, 1 Cal.3d 913, 464 P.2d 473, 83 Cal. Rptr. 809 (1970), People v. Levey, 8 Cal.3d 648, 504 P.2d 452, 105 Cal. Rptr. 516 (1973), and In re Hammond, 33 Cal.App.3d 440, 109 Cal. Rptr. 98 (1973), in support of his position. However, we also find these cases unpersuasive. In Mosley and Levey the prosecution and defense entered a stipulation and agreed that the cases be submitted on the transcript of testimony taken at the preliminary hearings. In each case the evidence adduced at the preliminary hearing was only supportive of the prosecution. Neither defendant testified nor called witnesses on his behalf. In both cases the evidence presented was sufficient in law to support a conviction of the crime charged. Under these circumstances the Supreme Court of California found the procedure to be in effect a plea of guilty and that the proper admonishments were necessary. It is readily apparent that the case before us differs in a material aspect from these California cases. In the instant controversy defendant Young presented evidence to support his claimed defense of self-defense. He asserted his constitutional right to plead not guilty and offer a defense to the charges brought against him.

In Hammond the defendant was declared to be an habitual criminal under the California Penal Code. The defendant had been charged in an information with five felonies. The information also charged him with three prior felony convictions and with a conviction for the crime of escape. Prior to trial the defendant pled not guilty to the offenses charged in the information but admitted having suffered the prior convictions. On this admission proper determination of habitual criminality could, upon conviction, be made. The California Appellate Court held that the defendant’s admission of the charged prior convictions was “the functional equivalent of a plea of guilty to an independent criminal charge” and that it was necessary to properly admonish the defendant as to the effect of such a plea. In the case before us, as we previously indicated, the defendant neither directly nor indirectly made an admission of guilt. We are, therefore, of the opinion that Hammond is factually different from the case at bar and unpersuasive.

In People v. Smith, supra, our supreme court stated: “Where the circumstances indicate that calculated efforts have been made which amount to the entry of a guilty plea, we hold that an accused must be afforded the protections set forth by Rule 402. [Citation.]” (59 Ill.2d 236, 242-43.) We are of the opinion that the circumstances of the case at bar do not warrant a finding that this proceeding was tantamount to a plea of guilty. Although the trial court had indicated what it would do if the defendant withdrew his plea of not guilty and pled guilty, defendant never directly or indirectly admitted his guilt. He chose to plead not guilty and submit his case on a stipulation of facts. Defendant never waived his asserted defense of self-defense. Under these circumstances we cannot agree that the stipulated bench trial was in effect a guilty plea, and, therefore, it was not necessary to admonish defendant in accordance with Supreme Court Rule 402.

The defendant also contends that the stipulated evidence was insufficient to establish the offense of voluntary manslaughter beyond a reasonable doubt. Defendant maintains that all elements of the offense of voluntary manslaughter were not established beyond a reasonable doubt and that the defendant reasonably believed that deadly force was necessary to prevent imminent death or great bodily harm to himself. We do not agree.

The offense of voluntary manslaughter is defined in section 9 — 2 of the Illinois Criminal Code as follows:

“(a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) The individual killed, or
(2) Another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed.
Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.
(b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.” (Ill. Rev. Stat. 1973, ch. 38, par. 9 — 2.)

Defendant contends that there is nothing in the stipulated evidence to indicate that he was acting under a sudden or intense passion resulting from serious provocation. Defendant also contends that the evidence supports his asserted defense of self-defense and, therefore, he reasonably believed that deadly force was necessary to prevent imminent death or great bodily harm to himself. We have carefully reviewed the record of the stipulated evidence and are of the opinion that the evidence was sufficient to support beyond a reasonable doubt a conviction of voluntary manslaughter upon either definition of the offense. The trial court was not bound to accept the defendant’s version of the events that occurred. (People v. Wiggins, 12 Ill.2d 418, 147 N.E.2d 80 (1957).) When a case is tried without a jury, it is the function of the trial court to evaluate and resolve conflicts in the evidence. (People v. Washington, 27 Ill.2d 104, 187 N.E.2d 739 (1963).) A reviewing court will reverse a judgment of guilty because of insufficient evidence only when the evidence adduced is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of the defendant’s guilt. (People v. Harris, 8 Ill.2d 431, 134 N.E.2d 315 (1956).) We do not believe the stipulated evidence presented in the case at bar is palpably contrary to the trial court’s judgment or so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of defendant’s guilt. For the reasons herein stated the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

DIERINGER, P. J., and BURMAN, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE BURMAN

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Bernall Curry, Defendant-Appellant.
    (Nos. 58041, 58592 cons.;
    First District (4th Division)
    January 22, 1975.

      James J. Doherty, Public Defender, of Chicago (Ronald P. Alwin, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Dorothy B. Johnson, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

The defendant, Bemall Curry, was charged in a two-count indictment with aggravated battery causing great bodily harm and with aggravated battery using a deadly weapon. He was found guilty by a jury of aggravated battery and received a sentence of 2 to 5 years in the Illinois State Penitentiary. From the judgment of conviction, the defendant appeals.

The defendant contends before this court that numerous errors occurred during trial which require that his conviction be reversed. We have concluded from an examination of the record that the defendant was indeed deprived of a fair trial because of prejudicial error, and we therefore remand the case for a new trial.

In view of our ultimate determination it is unnecessary either to note all of the defendant’s contentions on appeal or to detail the evidence. We need only indicate briefly that testimony revealed that the circumstances of the crime arose as a result of an argument between members of two street gangs known as the "War Lords” and the "Black P. Stone Nation,” sometimes referred to as the "Blackstone Rangers.” On November 16, 1970, Derrick Thornton, a member of the War Lords, was shot in the back. He never saw who shot him. According to the prosecution he was shot by the defendant, who had been a member of the Black P. Stone Nation. The defendant took the stand at trial and denied that he shot Thornton and testified that he was two blocks away at the time of the incident.

One of the witnesses called by the State was' Officer Daniel Davis of the Chicago Police Department. He had been on the force for 5 years and was assigned to the Tactical Unit. On direct examination he testified that he and his partner received a radio communication that a boy had been shot, and they proceeded to the area. They arrested the defendant, Bernall Curry, who fitted a description received from the radio communication, near the scene of the crime. While detained in the squad car, and as a crowd gathered around, Curry was striking his breast with his fist and saying “Stone Thing,” which the officer knew as a sign of the “Blackstone Rangers.”

While under cross-examination the following colloquy took place:

“MR. GRAY [defense counsel]:
Q: Officer, you mentioned that you recognized the defendant as being a member of a group known as the Rangers?
A: I said that I’d known the defendant.
Q: Did you know him as being a member of the Rangers?
A: I did because we had two rape warrants out for him with a gang-related incident at the time of the shooting.
Q: You still haven’t answered my question. Did you know him as being—
MR. CORSENTINO [assistant State’s attorney]: Objection.
MR. GRAY: I object to the answer and ask that it be stricken.
My question was — and the reporter can correct me if I’m wrong — did you know the defendant as being a member of the Rangers and his answer about some rape warrants came out. My question was, did you know him as being a member of the Rangers?
THE COURT: Just a moment. Just a moment. I’m sure the jury heard what the officer said before.
Read it back before any mention of anything else.
(Record read by the reporter as follows:
‘Q: Did you know him as being a member of the Rangers?
A: I did * * *’)
MR. GRAY: The rest is not responsive to the question.
THE COURT: I disagree with you. He said how he knew him, because of these other things.
MR. GRAY: I didn’t ask him how he knew him.
THE COURT: That will stand. He said he knew him, then he gave an explanation, whatever it was. It’s up to the jury. All right. He said he did. Go on. Next question.”

The defendant contends that the unsolicited and unresponsive statement by a police officer that there were outstanding rape warrants against him, which were unrelated to the charge for which he was being tiled, effectively deprived him of a fair trial. For the reasons below, we are compelled to agree.

It is fundamental that, as a general rule and subject to exceptions not applicable here, evidence which tends to show that an accused has committed crimes or acts of misconduct which are distinct and entirely unrelated to the one for which he is being tried is both incompetent, and prejudicial. (People v. Donaldson, 8 Ill.2d 510, 134 N.E.2d 776.) We believe that the testimony in the instant case, which was volunteered by an experienced police officer, clearly indicated to the jurors that the defendant was wanted for the heinous crime of rape, and unfairly burdened the defendant with the risk that he would be viewed as a person with other criminal tendencies and that this would affect the jurors’ decision regarding his guilt or innocence of the contested charge before them. Cf. People v. Burson, 11 Ill.2d 360, 143 N.E.2d 239, where the Illinois Supreme Court held, inter alia, that mere pictures of the deceased in the nude, lying on a bloody and disheveled bed, were suggestive of rape and therefore prejudicial, and should not have been admitted in evidence in a murder prosecution; cf. also People v. Barges, 87 Ill.App.2d 376, 231 N.E.2d 650.

The error was compounded when the court denied a motion to strike the reference to other unrelated crimes. In certain cases, an admonition by the trial court judge to the jury to disregard a-reference to other crimes, after sustaining an objection to such testimony, has been a factor in holding any such error insufficient to warrant reversal. (See People v. Johnson, 11 Ill.App.3d 745, 297 N.E.2d 683.) Here the comments of the trial judge, in our opinion, indicated that the evidence in question was material and that the jury could and should consider it. It is difficult to believe the jury would not do so. See People v. Washington, 54 Ill.App.2d 467, 204 N.E.2d 25.

The State focuses on the fact that the testimony complained of was given during defense counsel’s cross-examination and points out that a party cannot ordinarily complain of evidence which he himself has introduced or brought out. (People v. Petty, 10 Ill.App.3d 975, 295 N.E.2d 275.) The State does concede, however, that if what was elicited was so prejudicial that it could not be limited then, of course, a mistrial may be in order (see People v. Williams, 72 Ill.App.2d 96, 218 N.E.2d 771), but it contends that is not the case here. We respond to this argument in several ways. First, the complained of testimony was not really brought out by defense counsel, but was given by the experienced police-officer in an unresponsive answer to a much narrower question. The officer was asked merely, “Did you know [the defendant] as being a member of the Rangers?” and he responded, “I did because we had two rape warrants out for him with a gang related incident at the time, of the shooting.” (Emphasis added.) The italicized part of that response clearly went far beyond defense counsel’s inquiry and cannot fairly be attributed to him. Furthermore, we are not in a position to determine whether the prejudice in the statement was effectively neutralized by an admonition or instruction to the jury. As we have noted, the effect of the statement was in no way counteracted by the court, but rather was ruled admissible and allowed into the record as material evidence. Finally, the prejudice in connecting the defendant to crimes of rape is prodigious.

In People v. Williams, 72 Ill.App.2d 96, 218 N.E.2d 771, the defendant was convicted of burglary and theft. A police detective under cross-examination by defense counsel stated that he originally obtained a description of the burglar from another report. When asked whether he had the latter report in his possession, the detective stated. “ ‘This is on another church burglary, in the same reference where the priest was attacked and accosted by George Williams [the defendant].’” (72 Ill.App.2d 96, 99.) A motion for a mistrial by the defendant was denied, but the court ruled that the detective’s reply be stricken from the record. The detective also testified on re-direct examination that he had previously seen the defendant “‘in pictures and his record, his police record.’” (72 Ill.App.2d 96, 100.) Another motion for a mistrial was denied. The appellate court concluded that the only effect of these statements was to convey to the jury the impression that the defendant had criminal tendencies and was likely to commit a crime such as that for which he was being tried. The court held as we do here that the statements were without evidentiary value and served only to prejudice the defendant in the eyes of the jury. The State points out that in Williams, unlike here, the defendant did not take the stand, and that this apparently added to the prejudice in that case. In view of the nature of the testimony in the instant case and the trial court’s attitude toward it, however, we do not view the absence of that factor crucial to our decision. We note, too, that in the instant case the prejudicial testimony was given during the presentation of the evidence by the State,, and it painted an unhealthy picture of the defendant in the jury’s eyes before he had the opportunity to take the stand in his own defense.

The State likens the instant case to People v. Cherry, 130 Ill.App.2d 965, 267 N.E.2d 744, but we find the facts of that case dissimilar. In Cherry, the defense attorney inquired of a police officer on cross-examination if he had ever seen the defendant Cherry since the time of the alleged offense, to which the officer rephed “‘Yes sir, he was brought to the station one other time.’” (130 Ill.App.2d 965, 966.) The defense counsel’s objection was overruled and therefore no instruction to disregard the testimony was given to the jury. The court found that any error resulting was harmless, noting that “we have an isolated instance of a remark by a police officer, which may or may not have been intentionally made with intention to influence the jury.” (130 Ill.App.2d 965, 967, 267 N.E.2d 744, 746.) Obviously the prejudice inherent in stating that a defendant has been “brought to the station one other time” is exceedingly less than that in stating he was wanted on two charges of rape. Likewise, in People v. Nelson, 12 Ill.App.3d 67, 298 N.E.2d 256, a case decided by this court and also relied on by the State, a police officer, while being questioned on direct examination by tire assistant State’s attorney, referred to “ ‘another victim’.” Not only did the defense counsel fail to object in any way to the statement, let alone request the court to admonish the jury regarding it, but the mere reference to “another victim,” in light of the evidence in that case, was not sufficient error to mandate reversal.

For the above reasons we disagree with the State’s position that if any error was committed as a result of the police officer’s reference to the two rape warrants, coupled with the trial court’s refusal to take corrective action, it should be considered harmless. When the defendant took the stand in his own defense, his credibility had already been damaged immeasurably in the eyes of the jury, and the presumption of innocence accorded him was seriously impaired. There is, at the very least, a reasonable doubt in our minds that the jury was not affected by the remark (Chapman v. California, 386 U.S. 18), and a reasonable belief that the verdict of the jury may have resulted from it (People v. Tranowski, 20 Ill.2d 11, 169 N.E.2d 347).

Since we are remanding the case for a new trial, we will also briefly consider another of the defendant’s allegations of error, concerning the prosecutor’s cross-examination of defense witness Russell Spratt and a related comment made by the prosecutor during his final argument to the jury.

Russell Spratt, called as a witness by the defense, testified on direct examination that he was a member of the “Stones.” He said that on the date in question he was on the comer of 45th and St. Lawrence (in Chicago) talking to the defendant and some other people when he heard a shot. The shooting, according to other evidence, occurred two blocks away near 45th and Evans. He saw people running after the shot, including members of both the War Lords and the Rangers. The Rangers were “making it toward Cottage,” i.e., running to get across Cottage Grove Avenue into their own "territory.” Spratt said he also left to get across Cottage Grove and the defendant was behind him.

On cross-examination the prosecutor asked:

“q * * * Isn’t it a fact, Mr. Witness, that you are in fact the person that gave the gun to Bernall Curry and after the shooting he gave the gun back to you after he ran a while and then you in turn gave the gun to Connie Smith and then after that the policemen arrested you out of a crowd, isn’t that a fact, sir?
A. No.
MR. GRAY [defense counsel]: Objection.
THE COURT: He may answer.
MR. GRAY: Also the State is going to substantiate. Your Honor, we don’t need any—
THE COURT: Just a minute.
MR. CORSENTINO [assistant State’s attorney]: Q. Who did you give the gun to, Bernice Hamilton?
A. I didn’t have no gun.
Q. You didn’t have no gun?
A. No.”

Developing this same theme in his closing argument to the jury, the prosecutor remarked:

“I guess Mr. Spratt — the gun man; now he is the one that gave the gun to the defendant. He is the one that took it after the shooting and he is the one that gave it to one of the girls. We didn’t prove it beyond a reasonable doubt and we don’t have to. But that is what happened to the gun.”

We agree with the defendant that the cross-examination and the final remark of the prosecutor were improper where the facts assumed in both were not grounded in competent evidence.

The defendant denied either having a gun or shooting Thornton. Spratt supported the defendant’s alibi testimony that he was some distance away when Thornton was shot. The record also reveals that although the defendant was arrested within minutes after the shooting, no gun was found on his person nor on Spratt’s person. Undoubtedly the cross-examination was conducted and the final remark made to satisfactorily account for tins fact to the jury. But the only evidence that tied the gun to Curry and Spratt was the hearsay testimony of Officer Caccitolo and Officer Davis that when Russell Spratt was brought in for questioning, Marvin Rogers and Andrew Stevens, who were at the police station, stood up and identified Spratt as the one who took the gun from Curry after the shooting. Caccitolo also testified on rebuttal simply that he had asked Spratt “if in fact that Wolf [the defendant’s nickname] had past [sic] the gun to him * * and Spratt responded “No.” Marvin Rogers never testified at trial. Although Andrew Stevens did testify at trial, he never said Curry gave the gun to Spratt. Nor did anyone else testify that Spratt gave the gun to Curry before the shooting, nor that Curry gave the gun back to Spratt. Nor did anyone testify that Spratt gave the gun either to Connie Smith or to Bernice Hamilton. We feel that for the prosecutor to assume these facts in a question during cross-examination and to use them to buttress his final argument, especially considering the authoritative tone of his remarks, was improper. See People v. Nuccio, 43 Ill.2d 375, 253 N.E.2d 353; People v. Beier, 29 Ill.2d 511, 194 N.E.2d 280. See also Jones v. United States (D.C. Cir. 1964), 338 F.2d 553.

It is unlikely that the other errors alleged will recur when the cause is retried.

For the reasons stated the judgment of the Circuit Court is reversed and the cause is remanded for a new trial.

Reversed and remanded.

ADESKO AND JOHNSON, JJ., concur.


author: Mr. JUSTICE JOHNSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clayton St. Pierre et al., Defendants-Appellants.
    (Nos. 59349-50 cons.;
    First District (4th Division)
    January 22, 1975.

      Paul Bradley and Brenda E. Richey, both of State Appellate Defender’s Office, of Chicago, for appellants.

      Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Scott W. Petersen, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

The defendants were convicted of murder after a jury trial. Clayton St. Pierre was sentenced to a term of 20 to 40 years and Michael Wood was sentenced to a term of 14 to 28 years in the penitentiary. Donald Denic, who was indicted for murder and tried with the defendants, was found not guilty.

The following issues are raised on appeal: Whether the court erred in refusing defendants’ request for an accomplice ins traction; whether the court erred in submitting an improper instruction to the jury on the elements of proof necessaiy to find Michael Wood guilty of murder; whether the defendants were denied the effective assistance of counsel guaranteed them under the sixth amendment of the constitution by incompetence and conflict of interest on the part of their attorneys; whether the evidence was sufficient to establish defendants’ guilt beyond a reasonable doubt; whether Michael Wood was denied equal protection of the law by section 2 — 7 of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 702 — 7 (1)) which provides that no boy under the age of 17 or girl under the age of 18 may be prosecuted for an offense under the laws of this state.

Larry Bolton, the State’s first witness, testified that at around 2 A.M. on the morning in question, he met Michael Wood, his roommate, at the comer of Buena and Broadway in Chicago. They talked and Michael told Larry to return to their apartment to get Clayton St. Pierre. Michael, however, failed to explain why he wanted St. Pierre.

Larry followed Michael’s instructions and returned to his apartment, at 849 West Buena, where he met Jean Ellis, Charles Wood, Clayton St. Pierre, and Donald Denic. Larry told St. Pierre that Michael wanted to see him. St. Pierre walked to the kitchen, took a knife from the cabinet, and put the knife in his pocket. Larry advised St. Pierre that he did not need a knife but St. Pierre did not respond. Denic, St. Pierre, Larry Bolton, and Charles Wood left the apartment and walked back toward Broadway where they met Michael Wood. Michael explained to the group that someone had called his mother "a whore.” The group split up, Charles Wood and Larry Bolton proceeded through the alley, and the three defendants proceeded down Broadway.

When Larry Bolton reached the comer of Sheridan and Broadway a fight was in progress. Michael Wood, Donald Denic, and Clayton St. Pierre had surrounded Jim Hawkins, the deceased, and punches were being thrown. Larry Bolton yelled “pigs” and looked for the police, but he didn’t see any. When he turned back to the fight, he noticed that Mr. Hawkins was on the ground and he saw St. Pierre stab him.

Then, a car sitting on Sheridan Road began blowing its horn. Denic and St. Pierre ran by Larry; but Michael Wood walked towards him. He was helping his brother, Charles Wood, who had hurt his knee during the fight. Michael showed Larry a bloody knife and told him to take it, but Larry refused. Larry testified that the knife in Michael Wood’s possession was not the same knife that he saw St. Pierre take from their kitchen.

Larry Bolton returned to his apartment. Denic and St. Pierre arrived shortly thereafter, at which time Larry noticed a bloody knife sitting on the kitchen table. Then Michael Wood arrived and asked St. Pierre what he did with his knife. St. Pierre told him that it was in the kitchen sink. Michael Wood stated that he had buried his.

Investigator Toenings testified that he had a conversation with Donald Denic at the police station after Denic’s arrest. Denic first denied having any knowledge of the murder, but he later admitted that he had been recruited by Michael Wood to look for a man that insulted Wood’s mother. When the trio saw the man on the street later that evening, Denic stated that he saw Clayton St. Pierre stab the man twice.

Patrick Brogan, a Chicago police officer, testifying for the defense, stated that he first saw Mr. Hawkins, the deceased at 1 o’clock on the 18th of October. Officer Brogan testified that he noticed, while talking to Hawkins, that he had a cut in the center of his forehead.

Sergeant Gegner testified that he encountered Hawkins at approximately 11:45 P.M. at the comer of Buena and Broadway. The officer stopped because Mr. Hawkins appeared injured; he suffered from a. head or forehead injury. Sergeant Gegner transported Mr. Hawkins to American Hospital where he received medical treatment. When Sergeant Gegner encountered Mr. Hawkins at 2:15 A.M. on October 18, 1972, he was seriously injured and unable to talk.

Mrs. Ruth Wood was the third witness for the defense. She first met Mr. Hawkins at 9 P.M. the comer of Buena and Broadway. Mrs. Wood stated that Mr. Hawkins grabbed her arm and made an illicit proposition to her. However, she pulled away from him and crossed the street. At about 11 P.M. that same evening, Mrs. Wood encountered Mr. Hawkins once again on Buena. She testified that the decedent was talking with three unidentified Negroes. The man was holding a shiny object in his hand. Mrs. Wood entered Broadway Liquors and shortly thereafter Hawkins entered the store, bleeding from a wound on his head. He had a shiny blade in his possession.

Bobby Quintello testified that he was tending bar at 4200 North Broadway. At approximately 8 P.M. that evening, a man, identified by the witness as the deceased, entered the liquor store, went into the washroom, and left. Shortly thereafter, around 9 P.M., die man returned and requested a beer. He was denied service because he appeared to be slightiy intoxicated. Bobby Quintello noticed that he was bleeding very badly from a head wound. When Quintello asked the patron to leave and he refused, the police were summoned and they escorted Mr. Hawkins from the premises.

Clayton St. Pierre, the last witness for the defense, testified that at approximately 2 A.M. Larry Bolton entered the apartment and told him that Michael Wood was looking for him. St. Pierre stated that he went to the kitchen, selected a knife from the cabinet and placed it up his sleeve. Then St. Pierre left the apartment, along with the other people who were there, and they met Michael Wood at the corner of Buena and Broadway. Michael Wood told the group that he wanted to talk to the man who had called his mother a whore. Michael Wood, Donald Denic, and Clayton St. Pierre ran to Broadway and Sheridan where they met Hawkins. Michael Wood and Hawkins talked for a few minutes. A fight ensued, and St. Pierre saw Mr. Hawkins approaching him with something shiny in his hand. Mr. Hawkins grabbed St. Pierre, and they wrestled on the ground. Then, St. Pierre pulled his knife out and stabbed Hawkins. When St. Pierre heard Larry Bolton yell “the pigs are coming,” he and the others ran back to the apartment. Mr. Hawkins was left on the ground in front of the church.

The appellants argue initially that the court erred in refusing defendants’ request for an accomplice instruction. We disagree with this contention. An accomplice is one who could himself have been indicted for the offense either as principal or accessory, and if a witness is not an accomplice under this test, it is not error to give a tendered instruction relative to the testimony of an accomplice. (People v. Nowak (1970), 45 Ill.2d 158, 168-69, 258 N.E.2d 313, 318; People v. Konkowski (1941), 378 Ill. 616, 39 N.E.2d 13.) There was no evidence in the record that the witness, Larry Bolton, had knowledge or an intent to further the illegal purpose of the defendants in this case. The facts are clear that Larry Bolton merely witnessed a murder. Therefore, the trial court did not err and was not required to give the jury a cautionary instruction on the weight to be given Larry Bolton’s testimony.

Tire appellants next contend that the court erred in submitting instruction No. 15 to the jury on the elements of proof necessary to find Michael Wood guilty of murder. The error made by the State in instruction No. 15 was putting Clayton St. Pierre’s name in place of Michael Wood’s name in the third paragraph of die instruction. The appellants contend that the question of Michael Wood’s justified use of force was thereby taken from the jury when the name substitution occurred. In considering the adequacy of instructions, a reviewing court must take all of them as a unit to ascertain if they fully and fairly cover the law. (People v. Bradley (1973), 12 Ill.App.3d 783, 789, 299 N.E.2d 99; People v. Bergeron (1973), 10 Ill.App.3d 762, 770, 295 N.E.2d 228; People v. June (1969), 106 Ill.App.2d 421, 427, 245 N.E.2d 293.) We have examined all the instructions and are satisfied that they adequately set out the law governing the case. Therefore, we find no error merely because the defendants’ names were substituted on the instruction.

The defendants submit that they were denied the effective assistance of counsel guaranteed them under the sixth amendment of the Constitution by incompetence and conflict of interest on the part of their attorneys. The defendants argue that die failure of Mr. Weber to move to sever Denic, or to suppress the statement Denic made to the police, coupled with his failure to object to the improper jury instructions, amounted to a caliber of representation that blotted out the essence of a substantial defense. In People v. Dixon (1971), 2 Ill.App.3d 279, 276 N.E.2d 42, the court states at page 284:

"Where a defendant was represented by the counsel of his choice, a conviction will not be reversed for inadequate representation unless it can be shown from the record that the representation was of such low caliber as to amount to no representation at all, or that it was such as to reduce the trial to a farce.”

In the case under review, Michael Wood was represented by Mr. Weber, an attorney he retained. We do not feel, however, that Wood’s representation was of such low caliber as to amount to no representation at all, nor do we feel that his representation reduced the trial to a farce. We are of the opinion that defendants’ contentions, with respect to counsel’s conduct at trial, relate to matters of judgment and discretion, and a review of counsel’s competence does not extend to areas involving the exercise of judgment, discretion, or trial strategy. (People v. Wesley (1964), 30 Ill.2d 131, 136, 195 N.E.2d 708; People v. Sauber (1966), 68 Ill.App.2d 133, 142, 214 N.E.2d 918.) Counsel’s decisions at trial may have been incorrect, but errors in judgment do not constitute incompetency (People v. Washington (1968), 41 Ill.2d 16, 21, 241 N.E.2d 425; People v. Dixon (1971), 2 Ill.App.3d 279, 285, 276 N.E.2d 42), nor do differences in tactics between attorneys (People v. Kinsley (1973), 10 Ill.App.3d 326, 328, 293 N.E.2d 627). After reviewing the record, we do not feel that incompetence on the part of trial counsel has been demonstrated in this case.

The defendants next submit that Clayton St. Pierre’s rights were violated because there was a conflict of interest that existed with respect to his attorney. The defendants argue that Mr. Carey, who represented Clayton St. Pierre and Donald Denic, was put in a situation where he had to allow into evidence a statement made by Donald Denic to the police that exculpated Denic from culpability but inculpated St. Pierre. The statement, which was testified to by Officer Toenings at trial, is as follows:

“Well, we presented the fact to Denic that he left Jean Ellis’ apartment at 10 P.M. on the 17th. He stated that during that night, Michael Wood approached him and Clayton St. Pierre and asked him for some help, that somebody had called Michael Wood’s mother a whore. Later, when they saw the man on the street, Michael Wood approached the man followed by Clayton St. Pierre and himself. Denic then stated he saw Clayton St. Pierre stab the man twice.”

After the statement was made, the trial judge sustained defense counsels’ objections and gave the jury a cautionary instruction, telling them that the testimony was admitted only as to Donald Denic who made the statement. The rule is well settled that separate counsel is required only where the interests of codefendants are in fact antagonistic. (People v. Durley (1972), 53 Ill.2d 156, 160, 290 N.E.2d 244, 246; People v. Ware (1968), 39 Ill.2d 66, 68, 233 N.E.2d 421, 422.) The defendants represented by Mr. Carey did not have antagonistic defenses. Moreover, the extrajudicial statement made by Denic that is complained about in this appeal was in no way inconsistent with Clayton St. Pierre’s testimony at trial in which he admits stabbing Mr. Hawkins. The prejudice to St. Pierre was minimal, if at all, since Denic’s extrajudicial statement merely corroborated St. Pierre’s incriminating testimony. Furthermore, the trial judge instructed the jury to consider the testimony only with respect to Denic. We feel the defendant has failed to demonstrate that a conflict of interest actually existed on the part of his attorney, because the extrajudicial statement of codefendant Denic could be no more inculpatory tiran the defendant’s testimony. Therefore, we will not disturb the verdict of the jury on the basis of conjectural or speculative conflicts between the interests of codefendants argued for the first time on appeal. People v. Durley (1972), 53 Ill.2d 156, 160, 290 N.E.2d 244, 247; People v. McCasle (1966) , 35 Ill.2d 552, 556, 221 N.E.2d 227, 230.

Finally, the defendants contend that the statement made by co-defendant Denic deprived them of their sixth-amendment right to cross-examination and confrontation. The defendants rely on Bruton v. United States (1968), 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620, and People v. Clark (1959), 17 Ill.2d 486, 162 N.E.2d 413, as authority for this position. These cases can he distinguished from the instant case. In Bruton, the defendant made no inculpatory statements and in Clark, the plaintiff in error denied participating in tire crime. However, in the case under review, the defendant admitted stabbing the victim. The differences in the cases relied on by the defendants and the case under review are significant. Therefore, we feel that Schneble v. Florida (1972), 405 U.S. 427, 31 L.Ed.2d 340, 92 S.Ct. 1056, the most recent pronouncement of the Supreme Court on this question, is the case to be followed. The court states (405 U.S. 427, 430, 31 L.Ed.2d 340, 344):

“The mere finding of a violation of the Bruton rule in the course of the trial, however, does not automatically require reversal of the ensuing criminal conviction. In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.”

After an independent examination of the record, it is our opinion that the testimony erroneously admitted was merely cumulative of other overwhelming and largely uncontroverted evidence properly before the jury. Brown v. United States (1973), 411 U.S. 223, 36 L.Ed.2d 208, 93 S.Ct. 1565; Schneble v. Florida (1972), 405 U.S. 427, 31 L.Ed.2d 340, 92 S.Ct. 1056.

Defendants’ next contention is that the evidence raised the issue that Clayton St. Pierre stabbed Jim Hawkins while acting in self-defense. It is true, as the defendants point out, that once “some evidence” of self-defense is offered by the defendant, the burden devolves upon the State to prove beyond a reasonable doubt that issue along with the other elements of the offense. (Ill. Rev. Stat. 1971, ch. 38, §§ 3 — 2, 7 — 14.) The issue of self-defense in a criminal case, however, is one of fact for the jury (People v. Johnson (1969), 108 Ill.App.2d 150, 156, 247 N.E.2d 10; People v. Watts (1968), 101 Ill.App.2d 36, 43, 241 N.E.2d 463), and a reviewing court will not disturb the verdict unless the evidence is palpably contrary to the verdict or so unsatisfactory as to justify entertaining a reasonable doubt of defendant’s guilt. (People v. Smythe (1971), 132 Ill.App.2d 685, 688, 270 N.E.2d 431; People v. Parker (1970), 120 Ill.App.2d 71, 78, 256 N.E.2d 67.) The evidence was not conflicting in the instant case. Furthermore, the defendant admitted stabbing Jim Hawkins. We concluded, after reviewing all the evidence, that the jury’s finding that the evidence did not support the defendants’ theory of self-defense was a proper one.

The defendants’ next contention is that the evidence was insufficient to establish that Michael Wood stabbed Jim Hawkins or that he was accountable for Hawkins’ death. It is well established in Illinois that the testimony of one eyewitness, if it is positive and the witness is credible, is sufficient to sustain a conviction. (People v. Williams (1973), 14 Ill.App.3d 73, 302 N.E.2d 108; People v. Bracey (1970), 129 Ill.App.2d 57, 262 N.E.2d 748.) Larry Bolton testified, and his testimony was uncontroverted, that Michael Wood participated in the altercation that resulted in Hawkins’ death. Moreover, he saw Michael Wood with a bloody knife in his possession shortly after the fight ended. The evidence was sufficient for the jury to conclude that the defendant’s grdlt was established beyond a reasonable doubt.

The defendants contend if the jury’s verdict was based on the theory that Michael Wood was accountable for Clayton St. Pierre’s actions in stabbing Jim Hawkins, the State has failed to offer sufficient evidence to prove beyond a reasonable doubt that Michael Wood was responsible. The criteria necessary to estabfish that one person is accountable for another’s actions are set forth in section 5 — 2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 5 — 2). In our criminal law, it is weU established that proof of a common purpose need not be supported by words or agreement but can be drawn from circumstances surrounding commission of an act by a group. (People v. Bristow (1972), 8 Ill.App.3d 805, 810, 291 N.E.2d 189; People v. Hubbard (1972), 4 Ill.App.3d 729, 733, 281 N.E.2d 767.) The evidence is clear and uncontroverted that Michael Wood was present at the scene of the crime, participated in the altercation that culminated in Jim Hawkins’ death, and left the scene of the murder when he heard Larry Bolton yell “pigs.” This conduct is inconsistent with the behavior of a person simffarly situated and innocent of a crime. (People v. Thicksten (1958), 14 Ill.2d 132, 150 N.E.2d 813.) Therefore, Wood’s conduct supported an inference that a common understanding or design existed between the defendants. So even if Wood did not deliver the fatal blow, where two or more defendants have a common design to accomplish an unlawful purpose, the act of one is the act of all and all are equally guilty of whatever crime is committed. (People v. Nowak (1970), 45 Ill.2d 158, 258 N.E.2d 313; People v. Hubbard (1972), 4 Ill.App.3d 729, 734, 281 N.E.2d 767.) We hold that the evidence was sufficient to support the jury’s verdict finding Michael Wood guüty either as a principal or as a person accountable.

Finally, the defendants argue that Michael Wood was denied equal protection of the law by section 2 — 7(1) of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, § 702 — 7(1)), which provides that no boy under the age of 17 or girl under the age of 18 may be prosecuted for an offense under the laws of this state. Michael Wood, at the time of the commission of the offense in this case, was 17 years of age, but was considered an adult for the purpose of criminal prosecution. The defendants contend that the State violated a statutory prohibition in tire previously mentioned statute, when it prosecuted Michael Wood as an adult. The defendant, however, was not denied equal protection of the law. In People v. Pardo (1970), 47 Ill.2d 420, 265 N.E.2d 656, the supreme court found that age and differences between the sexes formed a proper basis for legislative classification so that statutory prohibition did not deny the accused equal protection of the law. More recently, in People v. Ellis (1974), 57 Ill.2d 127, 311 N.E.2d 98, the supreme court again passed on this issue. Mr. Justice Goldenhersh said:

«# # * [T]he failure to consider defendant eligible for treatment as a minor under its provisions did not deprive him of equal protection of the laws.” 57 Ill.2d 127, 134.

This position has been consistently followed by recent Illinois cases (People v. McCalvin (1973), 55 Ill.2d 161, 167, 302 N.E.2d 342, 346; People v. Little (1974), 18 Ill.App.3d 1081, 311 N.E.2d 173; People v. Good (1974), 18 Ill.App.3d 374, 309 N.E.2d 648), and we see no reason why this position should not be followed in the case under review.

For the foregoing reasons, the judgment is affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.


text:
    Judith Lieberman, Plaintiff-Appellee, Cross-Appellant, v. Orville I. Lieberman, Defendant-Appellant, Cross-Appellee.
    (No. 58429;
    First District (4th Division)
    January 22, 1975.

      Coghlan and Joyce and William J. Nellis, both of Chicago (James L. Coghlan, of counsel), for appellant.
    Benjamin B. Davis and Muller Davis, both of Chicago (Davis, Jones & Baer, of counsel), for appellee.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

On April 6, 1971, Judith Lieberman (plaintiff) filed an action for divorce against Orville Lieberman (defendant). Trial on this cause began June 27, 1972. The court granted the decree. The propriety of the award of alimony in gross to plaintiff has been challenged by defendant, as has the amount of the award which is characterized as excessive. Plaintiff also appeals the award, claiming that the amount fixed was inadequate and should be increased. The facts relating to this award are as follows:

Plaintiff was married to defendant for 23 years. There were two children of this marriage, both of whom are now adults. Plaintiff was 43 years old at the time of trial and was living outside the marital home.

Defendant, called by plaintiff to testify as an adverse witness, stated that he was the president of R.B. Clothing Stores, Inc. He owned 52 to 54 percent of the corporation’s stock, with the remainder being held by his mother. His salary as president for 1970 and 1971 had been $100,000 per annum. During the same period, plaintiff had worked for R.B. and received $11,950 for 1970 and $6,000 for 1971. Defendant’s car and his medical insurance were provided by the coiporation. Sales for the corporation for the 1972 fiscal year were in excess of $8,000,000. The shareholders’ net equity in the corporation was $957,412.37. Along with various other minor holdings and just less than $7,000 in his personal bank accounts, defendant had life insurance with a face value of $35,000 to $40,000 and a cash value at the time of trial of $20,000 to $25,000. The marital home in Glencoe, Illinois, was valued at $112,500, held by plaintiff and defendant as equal joint tenants. Defendant said that plaintiff normally paid all the bills except mortgage, taxes, insurance and vacations, and that he gave her $40,000 to $45,000 each year to pay the other bills. Several other witnesses then testified regarding the couple’s vacations and their style of living.

Plaintiff testified that she had worked for R.B. beginning in April 1970 as a sportswear buyer. She worked for the corporation for 15 months until she was terminated after she became separated from defendant and no longer lived in their Glencoe home. She then testified as to her various monthly expenses and the extent of her personal assets, such as jewelry and stock. Defendant, testifying in his own behalf, later disputed the amounts plaintiff claimed as her expenses and discussed the amount the marital residence would bring when sold.

Defendant’s initial contention is that the award of alimony in gross was an abuse of the trial court’s discretion and should be reversed. It is claimed that the proper method would have been to award periodic payments, since an award of alimony in gross is appropriate only when there are exceptional circumstances or where periodic payments are not feasible. We find no merit in this argument in the instant case.

In Illinois, a trial judge may award either periodic alimony payments or alimony in gross:

“* * * The court may order the husband or wife, as the case may be, to pay to the other party such sum of money, or convey to the party such real or personal property, payable or to be conveyed either in gross or by installments as settlement in lieu of alimony, as the court deems equitable.” (Ill. Rev. Stat. 1971, ch. 40, par. 19.)

Further, the nature of the award is a matter for the sound discretion of the trial judge, and it will not be set aside unless it is shown to be contrary to the manifest weight of the evidence. Hoffmann v. Hoffmann, 40 Ill.2d 344, 349-50, 239 N.E.2d 792.

The cases cited by defendant do not support his position. In both Canady v. Canady, 30 Ill.2d 440, 197 N.E.2d 42 and Loeb v. Loeb, 6 Ill. App.3d 892, 286 N.E.2d 790, cited by defendant, awards of alimony in gross were sustained by the reviewing courts. Nowhere in these opinions are there any statements that would require a finding of certain exceptional circumstances before such an award could be made. Quite the contrary, it is noted in Canady v. Canady, that “[b]oth the form of an award of alimony, and its amount, rest primarily in the discretion of the trial court.” (30 Ill.2d 440, 444.) In Honey v. Honey, 120 Ill.App.2d 102, 256 N.E.2d 121, an award of alimony in gross was reversed, but this was done as the trial court had abused its discretion by failing to consider the needs of the wife in connection with the husband’s ability to pay. Examining the record of the proceedings below, we cannot say that the award of alimony in gross was an abuse of discretion in the instant case and it will not, therefore, be set aside.

The amount of the award is claimed to have been improper by both plaintiff and defendant. Defendant urges that the amount was excessive and an abuse of discretion, while plaintiff argues that it was not excessive and in fact was inadequate and should be enlarged. The determination of amounts of awards of alimony is a matter within the sound discretion of the trial court and will not be disturbed upon review unless it is contrary to the manifest weight of the evidence. (Sandberg v. Sandberg, 11 Ill.App.3d 495, 297 N.E.2d 654; Furth v. Furth, 5 Ill.App.3d 73, 283 N.E.2d 102; Loveless v. Loveless, 128 Ill.App.2d 297, 261 N.E.2d 732.) Defendant offers little to show this court in what manner the award was so excessive as to constitute an abuse of discretion. It is stated that the amount is “patently excessive and beyond the range of discretion afforded the trial judge,” but no support for this claim is offered. In a like manner, the plaintiff’s claim that the award was inadequate is equally unpersuasive. The basis of plaintiff’s argument is that her needs were approximately $4,000 per month or more, while the award only allowed $2,000 per month for a 12-year period, as well as her half of the proceeds of the sale of the marital residence. We believe that the trial court’s estimate of plaintiff’s actual needs was correct and not contrary to the manifest weight of the evidence presented. The following statement from 24 Am. Jur. 2d Divorce and Separation § 635, at 756 (1966) (also cited in Sandberg v. Sandberg, 11 Ill.App.3d at 501) is particularly appropriate in the instant case:

“In many cases, though, the parties have lived in such a way as to consume all their income, and have even lived beyond their means before separation, so that it is obvious that each cannot maintain the same high standard of living in two separate households after the separation. Therefore it cannot be necessarily tnie that the wife should be furnished with funds to maintain the scale of living to which she was accustomed before the separation, and the court will determine the amount of alimony by considering what would be appropriate in the light of the incomes and resources of the parties.”

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

Judgment affirmed.

DIERINGER, P. J., and BURMAN, J., concur.


author: Mr. JUSTICE JOHNSON.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ernest Ousley, Defendant-Appellant.
    (No. 59637;
    First District (4th Division)
    January 22, 1975.

      James J. Doherty, Public Defender, of Chicago (Vincent M. Gaughan, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Scott W. Petersen, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. JUSTICE JOHNSON.


author: Mr. PRESIDING JUSTICE DIERINGER

text:
    Chester A. Stark, d/b/a Chester A. Stark & Associates, Plaintiff-Appellant, Cross-Appellee, v. Ralph F. Roussey & Associates, Inc. et al., Defendants-Appellees, Cross-Appellants.
    (No. 60189;
    First District (4th Division)
    January 22, 1975.
    James A. Regas, of Chicago, for appellants,

      Philip Conley, of Naperville, for appellee.
   Mr. PRESIDING JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from a decree entered by the Circuit Court of Cook County. The decree allowed the plaintiff to foreclose its mechanic’s lien upon certain real estate owned by the defendant corporation. In addition, the decree assessed plaintiff’s damages on a quantum meruit basis and assessed costs equally between the parties. The plaintiff now appeals from that portion of the decree assessing damages on a quantum meruit basis rather than basing damages on the written contract existing between the parties. The defendant cross-appeals from the decree foreclosing the mechanic’s lien.

The issues presented on appeal are (1) whether the findings of the master in chancery, which were approved by the trial court, were supported by a preponderance of tire evidence; and (2) whether the trial court, having approved the findings of the master, committed error in allowing recovery on a quantum meruit basis rather than as provided in the existing contract and assessing costs equally between the parties.

On November 1, 1962, the plaintiff, Chester A. Stark, an architect, entered into a written contract with the defendant Ralph F. Roussey, president of tire defendant corporation, Ralph F. Roussey & Associates, Inc., for the purpose of constructing a business and apartment building. By the terms of the contract plaintiff agreed to render architectural services, and defendant, as owner of the real estate in question, agreed to pay plaintiff for his services a basic fee of 6% of the cost of the work in said contract. Defendant paid plaintiff a retainer fee of $1,000 and plaintiff was to receive $5,000 when the plans were ready for permit, said $5,000 becoming part of the 6% fee should the construction continue after that point. Plaintiff’s services as architect under the contract were to be divided into three phases, to wit:

(a) “Phase A” — preliminary services
(b) “Phase B” — construction document services
(c) "Phase C” — construction supervision services

The contract also provided that at any time after the defendant approved the preliminary plans, should he require the plaintiff to malee any substantial change in die work, the plaintiff would be reimbursed by the defendant the cost of the additional expenses incurred. Pursuant to the contract, the plaintiff completed “Phase A” of the project and an approval of his services was obtained from defendant Roussey, acting for and in behalf of the defendant corporation.

On December 27, 1982, defendant Roussey in his representative capacity authorized the plaintiff to complete working drawings and specifications, which were part of “Phase B” of plaintiffs services. While plaintiff was completing the final working drawings and specifications, defendant Roussey made substantial changes in the project, requiring revisions of plans, design and specifications, as well as additional working drawings. Such additional work required approximately 200 hours of service by the plaintiff and necessitated plaintiff’s employing a structural engineer and an electrical engineer at a total cost of $1,042.50.

In April, 1963, the defendant corporation, through defendant Roussey, authorized and directed the plaintiff to procure bids from subcontractors. Approximately 3 months were required to procure between 150 and 200 bids, all of which were analyzed, tabulated and compiled by plaintiff into work sheets for the purpose of arriving at an overall price for the project. The total cost of the project shown by tabulation of the bids was $797,874.91. After the plaintiff advised defendant Roussey as to the cost of the building, Roussey stated he would not apply for a permit and would not build at such a price, thereby terminating plaintiffs services.

On December 5, 1963, plaintiff filed a complaint to foreclose his claim for a mechanic’s lien on the real estate owned by the defendant corporation. The case was referred to a master in chancery, who recommended that a mechanic s lien be allowed in favor of the plaintiff in the sum of $33,404.30, with interest. The master further recommended that fees and costs be assessed against the defendant corporation in the sum of $3,210. At trial, the court sustained all the findings of fact contained in the master’s report, but overruled the master’s findings as to damages. The trial court entered judgment for $4,000 on a quantum meruit basis. Subsequently, the decree was reversed and remanded for reassignment by the appellate court on the ground that the defendant was entitled to a change of venue prior to the hearing before the court. The matter was then assigned to a new trial judge for further proceedings. At the close of the hearings, the trial court entered the same decree of $4,000 in favor of the plaintiff on a quantum meruit basis. The plaintiff appeals from that portion of the decree assessing damages on a quantum meruit basis rather than on the written contract and assessing costs equally between the parties. Defendant cross-appeals from the decree foreclosing the mechanics lien.

The plaintiff first contends the findings of the master in chancery, which were approved by the trial court, were supported by a preponderance of the evidence,

We agree with the plaintiffs contention. A review of the record indicates the report of the master was detailed and accurate, and uncontradiQted by any evidence presented by the defendant. The rule is well established that a masters findings of fact, when approved by the chancellor, as here, will not be disturbed unless manifestly against the weight of the evidence. (Schmitt v. Heinz, (1955) 5 Ill.2d 372.) The findings of the master in the case at bar, approved by the chancellor, were clearly supported by a preponderance of the evidence and will not be disturbed by this court.

The plaintiff also contends the trial court, having approved the findings of fact of the master, committed error in allowing recovery on a quantum meruit basis rather than as provided in the existing contract and assessing costs equally between the parties.

We believe the trial court should have based plaintiff's recovery as provided in the existing contract and not on a quantum meruit basis. It is well established that the terms of the contract under which an architect is employed govern with respect to his compensation. (Espert v. Ahlschlager (1905), 117 Ill.App. 484.) In Michalowski v. Richter Spring Corp. (1969), 112 Ill.App.2d 451, the appellate court was faced with the question of determining what meaning should be given to the term “construction cost” in an agreement between the plaintiff-architect and the defendant-owner. Defendant contended that under the terms of the contract it agreed to pay plaintiff 6% of the construction cost of the project, and since the project was abandoned after bids had been received, the project cost nothing and plaintiff was not entitled to any payment. The appellate court held that was not a reasonable construction of the contract. The court stated that since plaintiff had performed his part of the contract, “it is reasonable to infer that the parties intended construction cost’ to mean the amount that construction of the project would cost as determined by the bid and defendant was not at liberty to escape liability by changing its intention to build.” Likewise, in the present case, the performance to be rendered by the plaintiff was stipulated in the written contract existing between the parties, along with the manner in which defendant was to pay plaintiff for his services. The trial court erred in allowing recoveiy on a quantum meruit basis rather than on the contract. Further, the master’s fees and costs should have been charged against the defendant.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is reversed and the cause is remanded with directions to enter judgment as herein stated. The cross-appeal is dismissed.

Reversed and remanded with directions; Cross-appeal dismissed,

BURMAN and JOHNSON, JJ., concur,


text:
    James C. Thomas et al., Plaintiffs-Appellants, v. Keith Gouwens, Individually and as Ex’r of the Estate of Peter J. Gouwens, Defendant-Appellee.
    (No. 60516;
    First District (4th Division)
    January 22, 1975.

      Donald O. Walsh, of Chicago (Overton, Schwartz & Yacker, Ltd., of counsel), for appellants.
    Samuel Z. Goldman, of Chicago (Waller & Waller, of counsel), for appellee.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

Plaintiffs, James C. Thomas and Ernestine C. Thomas, filed an action against Keith Gouwens, individually and as executor of the estate of Peter J. Gouwens, deceased, seeking damages arising out of the breach of a written sales contract. The contract was executed by seller, Keith Gouwens, as executor of the estate of Peter J. Gouwens. On February 5, 1974, the court sustained defendant’s motion to strike and dismiss the complaint. Thereafter, plaintiffs moved to vacate the dismissal and for leave to amend the complaint. The motion was denied, and plaintiffs appeal.

The contract was for the sale of a house located at 534 West 116th Street in the city of Chicago. The agreement provided in relevant part, as follows:

“Seller agrees, prior to closing, to repair the roof leak on the premises which has caused damage to the livingroom ceiling. Seller shall also repair said livingroom ceiling. Such repairs are to be made by a reputable contractor and to be done in a good workmanlike manner. Seller’s roof contractor shall give the usual warranty for such roof repair to Purchaser for the period of time which such warranties are usually given. The covenants and warranties of Seller made herein shall survive the closing of this agreement and the delivery of title to the premises hereunder.”

In their complaint plaintiffs alleged that prior to closing defendant retained a contractor to repair the roof leak, but the contractor totally failed to remedy the problem. It was further alleged that in response to plaintiffs’ repeated demands, defendant caused the contractor to return to the premises on at least two occasions, but all such subsequent attempts to repair the leak were also entirely unsuccessful. As a result plaintiffs claim damages in the amount of $3,000.

On November 5, 1973, defendant filed a motion to strike and dismiss the complaint for failure to state a cause of action. In his motion defendant further asserted that he could not be sued in his individual capacity because he executed the contract in his capacity as executor, that the complaint failed to contain the date and bill of particulars of the claimed damages, that plaintiffs’ claim against defendant and the estate were barred since the statute of limitations had run against him and the last day for asserting claims against the estate had lapsed, and that afielan examination of the premises, plaintiffs accepted the repairs performed by the contractor as being in compliance with the agreement and did not notify him of any complaints nor serve notice on him as to the ceiling and roof.

The trial court’s reasons for striking the complaint and subsequently denying plaintiffs’ leave to amend are not clear from the record. We believe that plaintiffs should be granted an opportunity to amend the complaint to plainly and concisely state a cause of action. Therefore,, the order of dismissal is reversed and the cause remanded with directions to the trial court to allow plaintiffs to amend their complaint with particulars of their claimed damages. We note, too, that the proposed amended complaint does state a cause of action. Section 4 of the Civil Practice Act provides that the Act “shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties.” (Ill. Rev. Stat. 1973, ch. 110, par. 4.) Indeed, the basic purpose of the Civil Practice Act is to remove barriers which prevent the trial of a case on its merits and to facilitate procedures to accomplish that end. (McMillen v. Rydbom, 56 Ill.App.2d 14, 205 N.E.2d 813.) Accordingly, in order to promote the spirit of the Act, the power to allow amendments should be freely exercised so that litigants may fully present their alleged cause of action. People ex rel. Hamer v. Board of Education, 130 Ill.App.2d 592, 264 N.E. 2d 420.

We note that many of the matters referred to in defendant’s motion to strike and dismiss are factual in nature rather than legal. Since they amount to mere denials, these matters should be pleaded in an answer to the complaint. As to defendant’s contention that plaintiffs are barred from pursuing any claim against the estate, we are informed by plaintiffs in their brief that they are not attempting to state an action against the estate. We also perceive no merit to defendant’s contention that the claim against him individually is barred by the statute of limitations.

Perhaps the most serious matter raised in defendant’s motion to strike and dismiss is whether he may be sued in his individual capacity despite the fact that he executed the contract in his capacity as executor. The rule is well settled that a guardian, executor, administrator, trustee, or other person acting in such relation, in a contract with third persons binds himself personally, unless he exacts an agreement from the person with whom he contracts to look to the funds of the estate exclusively. Austin v. Parker, 317 Ill. 348.

The rationale of the rule is clear. An executor or administrator has no power to bind the estate by any contract originating with himself. He may make disbursements out of estate funds for purposes authorized by law, but he may not create a liability not founded upon a contract or obligation of the testator or intestate. (Marsh v. Steiniger, 225 Ill.App. 114.) Thus, although the contract may be made for the benefit and in the interest of the estate, if made upon new and independent consideration, the executor or administrator may be sued in his individual capacity and not as a representative. The fact that an executor or administrator is identified in a contract as a representative does not affect the rule, and although he may be named in the declaration or complaint as a representative, this will be considered merely descriptio personae and will be treated as surplusage or as only to show the nature and origin of his liability. Jahp v. Bradley, 185 Ill.App. 215 (abstract opinion).

For the foregoing reasons the judgment dismissing the complaint is reversed, and the cause is remanded with directions that leave be granted to plaintiffs to amend their complaint, that defendant be granted leave to file responsive pleadings, and that the cause proceed on its merits.

Reversed and remanded with directions.

DIERINGER, P. J., and JOHNSON, J., concur.


text:
    Greater Chicago Auction, Inc., Plaintiff-Garnisher-Appellant, v. Herbert Abram, Defendant-Appellee.—(Travelers Indemnity Company, Garnishee-Appellee.)
    (No. 59649;
    First District (4th Division)
    January 22, 1975.
    Richard L. Berdelle, of Pretzel, Stouffer, Nolan & Rooney, of Chicago (Willis R. Tribler and Joseph B. Lederleitner, of counsel), for appellant.
    Kirkland & Ellis, of Chicago (John W. Bell, of counsel), for appellee.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

In this case a default judgment was rendered against Abram, the insured, when he failed to appear at trial. Thereafter, garnishment proceedings were brought to collect the amount of the default judgment from Travelers Indemnity Company, the judgment debtor’s insurer. On cross motions for summary judgment, the trial court entered judgment in favor of the garnishee-insurer.

The following issues are raised on appeal: Does an insurer waive its policy defense when it retains counsel who appear and defend the insured without a reservation of rights? Is an insurer estopped to deny liability for a default judgment against its insured after insurer appointed counsel withdraws from the defense which they engaged in for almost 2 months without any reservation of rights? Was plaintiff garnisher entitled to summary judgment; and was it reversible error to grant summary judgment to the garnishee-insurer?

The plaintiff, Greater Chicago Auction, Inc., is engaged in the business of auctioning used automobiles to dealers who may enter the premises to examine, inspect, and purchase them. On September 18, 1958, while Joseph St. Angelo was inspecting a vehicle, he was injured by Herbert Abram, tire defendant. On February 11, 1964, the plaintiff settled with St. Angelo for $9000 and filed this lawsuit against Abram on October 13, 1964, to recover the money paid in the settlement.

On January 29, 1965, Travelers received a letter from Herbert Abram informing Travelers of the accident that occurred on September 18, 1958. Abram was advised on February 2, 1965, by Travelers, that its attorneys would enter an appearance in .his behalf so that the case would not be defaulted. Abram was also told in this letter that he was not entitled to a defense under the policy since Travelers had received no prior notice of the accident, and that its attorneys would be withdrawing from the case. Finally, Abram was instructed to retain counsel if he desired to defend himself and avoid the possibility of a judgment. In a subsequent letter dated February 17, 1965, Travelers informed Abram a second time that he was not entitled to a defense under the policy issued to Joyce because of a lack of notice. Furthermore, Abram was told that Travelers’ attorneys would file an answer, but would withdraw on March 15, 1965, so he should arrange for his own attorneys to protect his interests thereafter.

Judge Hallett granted Travelers’ attorneys’ motion to withdraw on March 15, 1965. On January 14, 1966, an order of default was entered against Herbert Abram for his failure to appear. On August 12, 1966, the cause was set for default prove-up, which took place on Oetober 31, 1966, resulting in a default judgment of $9000 against Herbert Abram.

On October 10, 1967, garnishment proceedings were initiated by the garnisher, Greater Chicago Auction, against Travelers Indemnity Company, the garnishee. Travelers appeared on October 10, 1967, and filed a motion to strike. The garnisher contested the garnishee’s motion to strike by in turn moving to strike the motion. The garnisher’s motion to strike the garnishee’s motion was granted, and the garnishee was ordered to answer or otherwise plead. The garnishee filed its answer on July 18, 1968. Travelers then moved for summary judgment on May 15, 1973. On July 10, 1973, the garnisher moved for summary judgment. In ruling on these cross motions, the trial judge concluded that there were no genuine issues of material fact to be litigated and granted the garnishee-defendant’s motion for summary judgment.

The threshold question to be considered in this appeal is the timeliness of Abrams notice to his insurer. Travelers argues that Abram’s failure to notify them of a claim until almost 7 years after it arose violated a condition of coverage and relieved Travelers of liability. The notice provision, in a specimen policy of the insurer, provides in pertinent part:

“Conditions:
10. Notice of Accident
When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses.”

The notice provision is clear and unambiguous and clearly imposes a duty on the insured to notify the insurer. However, the facts in the instant case indicate that this procedure was not followed. Although the accident occurred on September 18, 1958, Travelers was first notified by Abram January 29, 1965, approximately 76 months after the accident. The insured’s 76-monch delay in informing the insurer is hardly notice “as soon as practicable” as called for by the policy.

In International Harvester Co. v. Continental Casualty Co. (1962), 33 Ill.App.2d 467, 179 N.E.2d 833, a declaratory judgment action in which the court held that an insurer was entitled to summaiy judgment, the court states at pages 471-72:

“A notice provision such as this is not to be considered as a technical requirement included in policies merely for the convenience of the insurance company. Rather it is a matter of substance imposing a valid prerequisite to coverage. (Imperial Fire Ins. Co. v. Coos County, 151 US 452.) Upon the happening of an accident, a prompt, as distinguished from a delayed, investigation of the facts of the occurrence can so greatly affect the efficiency of the defense as to change the very character of the risk involved. (Clements v. Preferred Accident Ins. Co., 41 F2d 470; 76 ALR 17.) It follows, therefore, that the notice requirements of a policy apply not only to the named insured but also to the unnamed additional insureds under an omnibus clause. (Royal Indemnity Co. v. Morris, 37 F2d 90, c.d. 281 US 748; 72 ALR 1425.)”

Abram, although an unnamed additional insured under the policy is, nevertheless, a protected person who must comply with the notice requirement. The defendant’s failure to comply with the notice provision, a condition interpreted as a valid prerequisite to coverage by this court, justifies a disclaimer on the part of the insurer. Allstate Insurance Co. v. Hoffman (1959), 21 Ill.App.2d 314, 158 N.E.2d 428.

The appellant contends that the insurer waived its policy defenses when it retained counsel who appeared and defended the insured without a reservation of rights. The appellant relies on Gibraltar Insurance Co. v. Varkalis (1970), 46 Ill.2d 481, 263 N.E.2d 823, as authority for its position. In Varkalis an insurer brought a declaratory judgment action against its insured for a determination of no coverage and no duty to defend by reason of an alleged policy defense because of the “intentional act” exclusion. The insured in Varkalis had caused the death of the decedent on May 13, 1961, and the insurer there said it first became aware of the claim on February 13, 1964. On March 19, 1964, the insurer entered an appearance on behalf of its insured through counsel retained by it. The insurer there did not disclaim coverage until July 13, 1965. The declaratory judgment action was filed, and the insurance company’s appointed counsel then withdrew their appearance with leave of court and a $30,000 judgment was rendered against the insured. The Varkalis court, in explaining the reasons for its decision, states at page 488:

» # [pjlaintiff did not notify the insured of its intention to assert a policy defense until July 13, 1965. During the interim it acted on behalf of Robinson as though no questions of policy coverage were involved, thus clearly causing him to wholly rely for his defense on the efforts of plaintiff.”

In the instant case the appellee-insurer in no way prejudiced the rights of the insured. In fact, when the appellee was notified on January 29, 1965, and told about the accident, Travelers, unlike the insurer in Varkalis, immediately sent Abram two letters, one on February 2, 1965, and another on February 17, 1965. In both letters Abram was informed that he was not entitled to a defense and should retain counsel since the appellee’s attorneys were answering the complaint only to keep his rights from being prejudiced. The garnishee did not act as though no questions of policy coverage existed, but told Abram 4 days after being notified of the accident that he was not entitled to a defense. These letters were written in clear and unambiguous language, so the defendant could not reasonably rely on the efforts of the appellee for his defense. Finally, these letters were clearly tendered within a reasonable time to give the insured an opportunity to retain counsel and prevent the default judgment from being entered against him. The facts in this case do not warrant estopping the insurer from repudiating liability. (Apex Mutual Insurance Co. v. Christner (1968), 99 Ill.App.2d 153, 240 N.E.2d 742.) Consequently, summary judgment was properly entered in favor of the garnishee-insurer.

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

Affirmed.

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


text:
    Edward Janik, Plaintiff-Appellant, v. Kipley Construction Company et al., Defendants-Appellees.
    (No. 59562;
    First District (4th Division)
    January 22, 1975.

      Rehearing denied February 18, 1975.

      Harold A. Liebenson, of Chicago, for appellant.
    Anton J. Valukas, of Chicago (Marshall D. Ossey and Michael B. Helding, of counsel), for appellee Kipley Construction Co.
    Sweeney & Riman, of Chicago (Gerald O. Sweeney, of counsel), for appellee LaSalle Glass & Mirror Co.
   Mr. PRESIDING JUSTICE DIERINGER

delivered the opinion of the court:

The plaintiff, Edward Janik, brought this personal injury action in the Circuit Court of Cook County against the Kipley Construction Company and the LaSalle Glass & Mirror Company, both corporations, for injuries received when he was struck on the head by a metal window frame. The Kipley Construction Company filed a cross-complaint against the LaSalle Glass & Mirror Company, and both defendants filed third-party complaints against Airtight, Inc. At trial the court directed a verdict in favor of the defendants at the close of all the evidence.

The question presented for review is whether the trial court properly directed a verdict in favor of the defendants.

Edward Janik, an employee of Illinois Bell Telephone Company, was injured on April 4, 1968, while he was working in the managers office at the Chicago Yacht Club, where a window was being installed. The office was a room about 8 feet by 12 feet, and a window opening had been cut in the north wall approximately 3 feet by 6 or 8 feet. The general contractor for that work was the Kipley Construction Company. The foreman for Kipley Construction, Robert Klug, was on the job each day and made continuous checks on the progress of the work. He had called the LaSalle Glass & Mirror Company and ordered the delivery of the window frame. The frame was delivered and placed against the north wall by an employee of the LaSalle Glass company, who placed it at an angle to the wall with the long portion of the window facing up and down. The plaintiff testified the top rested against some temporary wires which were hanging down from the ceiling, and the base rested on the floor about a foot from the wall. The frame, which weighed between 35 and 50 pounds, was not secured in any way, and there was testimony that the window opening allowed considerable wind into the room.

An employee of Airtight, Inc., was installing an acoustical ceiling in the office and was using a scaffold which measured about 2 feet by 6 feet. The platform was on movable rollers, which were not locked.

Janik testified he was working by the south wall about a foot from the platform, and he bent down to cut some cable. The scaffold seemed to move, and he was struck on the head by the window frame. He did not know how the frame happened to fall.

The plaintiff contends the trial court erred in granting the defendants a directed verdict at the close of all the evidence. The general rule of liability for negligent acts and omissions is stated in Kahn v. James Burton Co. (1955), 5 Ill.2d 614, as follows:

“Every person owes to all others a duty to exercise ordinary care to guard against injury which may naturally flow as a reasonably probable and foreseeable consequence of his act, and the law is presumed to furnish a remedy for the redress of every wrong. The duty to exercise ordinary care to avoid injury to another does not depend upon contract, privity of interest, or the proximity of relationship, but extends to remote and unknown persons.” (5 Ill.2d 614, 622.)

The plaintiff alleged he was injured while working at the Chicago Yacht Club, and his injuries were the result of negligence by the defendants. Among the allegations of negligence are: The frame was improperly placed and secured; there was failure to provide a safe place for plaintiff to work, failure to warn plaintiff of the dangerous condition of the frame, and failure to supervise work performed on the premises.

Under the facts of this case the questions of whether or not injury to the plaintiff might have been reasonably anticipated by the defendants and whether plaintiff was contributorily negligent are questions for the jury. A verdict for the defendants can be directed only under the standard set forth in the case of Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494:

“In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (37 Ill.2d 494, 510.)

In applying the Pedrick rule to this case, we find as a matter of law the record discloses sufficient evidence favorable to the plaintiff that a question of fact is created for determination by the jury.

The plaintiff was working in a place where he had a right to be, and there have been no allegations or proof he did anything wrong. The question of whether the duty to provide adequate protection for one lawfully on the premises and whether such duty was fulfilled is for the jury to determine. Garrett v. S. N. Nielsen Co. (1964), 49 Ill.App.2d 422.

For these reasons the judgment of the Circuit Court of Cook County is reversed and remanded for a new trial.

Reversed and remanded for a new trial.

BURMAN and ADESKO, JJ., concur.