author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v John Butchek et al., Defendants—(John Butchek, Impleaded, Defendant-Appellant).
    (No. 12362;
    Fourth District
    September 19, 1974.

      John F. McNichols, J. Daniel Stewart, and Thomas Nelson, all of State Appellate Defender’s Office, of Springfield, for appellant.
    C. Joseph Cavanagh, State’s Attorney, of Springfield (James W. Jerz, of Model District State’s Attorneys Association, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant-appellant appeals from a judgment entered pursuant to a negotiated plea of guilty to the crime of armed robbery. Defendant was sentenced to an indeterminate term of 5 to 20 years. The issues presented are:

(1) Whether the trial court substantially complied with Supreme Court Rule 402(a)(1) in informing the defendant of the nature of the charge.

(2) Whether the trial court substantiaHy complied with Supreme Court Rule 402(a) (2) in explaining to defendant the minimum sentence prescribed by law.

(3) Whether defendant’s minimum sentence is excessive.

On May 10, 1973, defendant, John Butchek, was indicted for the offense of armed robbery in violation of section 18 — 2(a) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 2(a)). On May 17, 1973, defendant and two co-defendants appeared without counsel for purposes of arraignment, and Judge Coutrakon entered not guilty pleas for the defendants to expedite the pretrial procedures. In the course of the arraignment the following colloquy occurred:

“The Court: A11 right.
The three of you are charged in a one-count indictment with the charge of armed robbeiy in that you did, while armed with a dangerous weapon, a sawed off shotgun, knowingly take property from another person and presence of another, Scott Bell, by threatening the imminent use of force, on the 2d of March, 1973, Sangamon County, IHinois.
That’s the general nature of the charge that’s pending against you.
Do you understand what the charge is?
Mr. Butchek: Yes.
# # #
The Court: I’m not going to read the indictment. It’s real simple, unless you want me to, but I’U give you a copy of it. Is that good enough for aU of you?
Mr. Butchek: Yes.
# * #
The Court: I’ll hand each of you a copy of the indictment. Hold on to it. Give it to Mr. Kasten when he — one apiece — when he contacts you, which will probably be today.
# # #
The Court: A copy of the pretrial discovery order, I hand you. Now, hold on to these orders and hold on to a copy of the indictments and give them to Mr. Kasten when he calls on you.
£ #
The Court: Enter a plea of not guilty for the defendants.”

On June 5, 1973, one of the co-defendants decided to change his plea to guilty and informed the court that he intended to testify against Butchek. The court discharged Mr. Kasten as defendant’s attorney and appointed another counsel.

On June 12, 1973, Butchek, accompanied by his new attorney, moved •before Judge Ackerman to withdraw his plea of not guilty and enter a plea of guilty. Defendant then advised the court that he was 30 years of age and had 14% years of education including 2% years of college. The court then stated:

“I take it, then, you read, write and comprehend the English language?
Def. Butchek: Very much so.
# # #
The Court: The crime of armed robbery is defined as follows: ‘A person commits armed robbery when he violates Section 18 — 1 while armed with a dangerous weapon.’ And Section 18 — 1 provides: "A person commits robbery when he takes property from the person or presence of another by the use of force or by threating the imminent use of force and while armed with a dangerous weapon.’
Do you understand the nature of the charge against you?
Def. Butchek: Yes, I do, your honor.
The Court: The Crime of armed robbery is a Class-
Mr. Roberts: Class 1 Felony.
The Court:-1 Felony under the Uniform Code of Corrections.
The minimum and maximum sentence prescribed by law is as follows: Not less than four-
Mr. O’Keefe: That’s correct.
The Court: -years, and without a maximum number of years, four years to any number of years, and that is an indeterminate number of years which means not a fixed number of years, but - well - five to twenty, for example, and the Uniform Code further provides for a fine not to exceed - is it ten thousand dollars? -let’s see.
Mr. Roberts: I believe it is, your honor, yes.
The Court: All right, and a parole term of how many years on the end?
Mr. Roberts: Class 1 Felony-five years.
The Court: Five years # *

The court then proceeded to explain to defendant his various rights. Defendant then waived his right to plead not guilty, to a trial by jury, and to a confrontation of witnesses against him and demonstrated a clear understanding of these rights. Defendant then waived his right to a pre-sentencing investigation and to a sentencing hearing. Defendent then stated that he understood that any plea bargain with the State would not be binding on the court. The State then presented a factual basis for the plea. The State then informed the court that under the plea bargain reached with defendant, the State would recommend a 5 to 20 in return for defendant’s guilty plea. Butchek acknowledged the bargain was accurate. The court found that defendant knowingly and understandingly waived his rights. The court then entered judgment on the plea and sentenced defendant to 5 to 20 years with credit for time served while awaiting trial. The docket entry for that date reads in pertinent part:

“* e * Defendant John Butchek sentenced to a term of not less than 5 nor more than 20 years * * * Defendant Gran-ville Smith sentenced to a term of not less than 4 nor more than 12 years * * * Sentence as to each defendant is a negotiated sentence, as per plea agreement * * * The reason for the disparity of sentence herein is due to the difference in criminal record of the two defendants.”

Defendant contends that it does not affirmatively appear on the record that he understood the nature of the charge in violation of the provisions of Supreme Court Rule 402(a)(1) which requires that:

“In hearings on pleas of guilty, there must be substantial compliance with the following:
(a) * * * The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge; * * *.”

During defendant’s initial appearance before the court the factual allegations of the indictment were read to him and defendant indicated that he understood those allegations. At the time the plea was taken the trial judge read to the defendant the statutory provisions which defined the offense in question, at which time defendant again stated that he understood the nature of the charge. The defendant had attended college for 2Vz years, and the record demonstrates that he was an intelligent individual who had articulated an understanding of the legal process with rather remarkable clarity and comprehension. This record taken in its entirety clearly establishes that defendant understood the nature of the charge, and this satisfies the requirement of the Rule. (People v. McCrady, 131 Ill.App.2d 836, 267 N.E.2d 515; People v. Carter, 107 Ill.App.2d 474, 246 N.E.2d 320; People v. Green, 12 Ill.App.3d 418, 299 N.E.2d 535.) Defendant’s contentions on this point are simply contrary to the record.

Defendant next contends that the trial judge did not comply with the provisions of Supreme Court Rule 402 which requires in pertinent part:

“In hearings on pleas of guilty, these must be substantial compliance with the following:
(a) * * * The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
ft ft ft
(2) the minimum and maximum sentence prescribed by law * * V (Ill. Rev. Stat. 1973, ch. 110A, par. 402.)

Specifically defendant urges that the trial judge erred in accepting his plea without explaining the minimum sentence prescribed by law. Defendant was told that the minimum sentence for armed robbery is 4 years, and the maximum any number of years. Defendant was also admonished that a fine of up to $10,000 could be imposed, and that there was a mandatory parole term of 5 years. Defendant maintains that the minimum sentence prescribed by law is not the minimum term of imprisonment, since he could have been sentenced to periodic imprisonment for up to 2 years. Consequently, he urges, the trial judge violated Rule 402 in failing to so admonish the defendant, and his plea should be set aside and the case remanded with directions that he be permitted to plead anew.

Defendant structures his argument in this progression:

First: Rule 402 requires admonishment as to the minimum sentence prescribed by law.
Second: The Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 1—19) defines “sentence” as “* * * the disposition imposed by the court on a convicted defendant.”
Third: The “dispositions” available to a trial judge are contained in section 5 — 5—3 of the Code as follows:
# # #
(d) When a defendant is convicted of a felony or misdemeanor, the court may sentence such defendant to:
(1) a period of probation or conditional discharge except in cases of murder, rape, armed robbery * * *;
(2) a term of periodic imprisonment;
(3) a term of imprisonment;
(4) a fine.” (Emphasis added.)
Fourth: It therefore follows that since probation, periodic imprisonment, and conditional discharge are “minimum sentences”, a defendant, in entering his plea, must be admonished as to their availability. While probation and conditional discharge were not available in the instant case, periodic imprisonment could have been imposed, and is a lesser minimum than the 4-year minimum required by the provisions of section 5 — 8—1(b)(2) of the Unified Code of Corrections and stated to him by the court.

We must first determine whether or not the failure of the trial judge to admonish the defendant as to the availability of periodic imprisonment (and probation and conditional discharge where applicable) violates procedural due process and renders the plea constitutionally infirm.

Boykin v. Alabama, 395 U.S. 238 (1969), requires that a State court, in accepting a plea of guilty, must, on the record, establish the waiver of these three basic constitutional guarantees: privilege against compulsory self-incrimination, right to trial by jury, right to confront ones accusers. Boykin also requires that the record establish that the defendant has a “# 6 * full understanding of what the plea connotes and of its consequences.” (394 U.S. at 244.) Boykin did not prescribe a formula to be adhered to in the accomplishment of these requirements; the Court did not specify the details of the type of information which must be given the defendant, but only that the record disclose that the plea was voluntarily and understandingly entered.

The Court, in Boykin, did not speak in terms of minimum or maximum sentences, but rather required that the record establish the defendant’s understanding of the “consequences of the plea.” In Footnote 7 the Court set forth an excerpt from an opinion of the Supreme Court of Pennsylvania in the case of Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968). Rundle predated Boykin. Rundle was cited in Boykin for the proposition that when the trial judge secures waivers of the three above mentioned constitutional rights with a view to ascertaining that the defendant has an understanding of the connotations of the plea and its consequences “* * * he leaves a record adequate for any review that * * * forestalls the spin-off of collateral proceedings that seek to probe murky memories.” (394 U.S. at 244.) The language excerpted from Rundle is as follows:

“‘A majority of criminal convictions are obtained after a plea of guilty. If these convictions are to be insulated from attack, the trial court is best advised to conduct an on the record examination of the defendant which should include, inter alia, an attempt to satisfy itself that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses for which he is charged, and the permissible range of sentences’” (Emphasis added.) (394 U.S. at 244, footnote 7.)

It is the “consequences” of the plea language contained in Boykin, together with the “permissible range of sentences” statement in Rundle, which predicates the argument that definition to the - defendant of the' minimum and maximum range of sentences is a constitutional prerequisite to a valid plea of guilty. We first note that Bundle was not cited for that proposition in Boykin. We suggest that the opinion of the Supreme Court of Pennsylvania in Bundle needs to be read in precise context. In the Bundle case, the defendant West had been convicted of the crime of minder on his plea of guilty and sentenced to 10 to 20 years in prison. On appeal the court found that the record failed to show any attempt by the trial judge to determine whether the plea was intelligently and voluntarily made. The court held that this “silent record” coupled with the. defendant’s allegations required that the case be remanded to the trial court for hearing. (Commonwealth ex rel. West v. Myers, 423 Pa. 1, 222 A.2d 918.) Pursuant to the remanding order the trial judge held a hearing and found tire plea to have been voluntarily and intelligently made. That judgment was then appealed and was affirmed by the supreme court in Commonwealth ex rel. West v. Bundle, 428 Pa. 102, 237 A.2d 196, and it is language from this opinion which is referred to in Footnote 7 in Boykin. In its opinion the court recited that during the course of the hearing before the trial court on remand the defendant testified that trial counsel had never discussed the consequences of the plea with him. Trial counsel testified that they had discussed with defendant the consequences of the plea, the possibility of a jury trial and the permissible range of sentences. The hearing judge accepted counsel’s version. The court then stated, “Since the burden of demonstrating that his plea was constitutionally infirm rested upon West * * ° we affirm the decision below.” The Bundle court further recited that appellant, in his brief, urged the court to adopt a Rule providing that failure of the trial judge to conduct an on the record colloquy with the defendant sufficient to demonstrate that the plea was entered with the “* * * constitutionally required degree of voluntariness * * *” would vitiate the plea. The court then declared that the rule proposed by defendant “* * * does not provide sufficient flexibility” though “there is much merit in his insistence upon an on the record examination by the trial judge.” Then followed the language quoted in Footnote 7 in Boykin. Specifically, Bundle, at the time cited in Boykin, held that a plea taken on a silent record is not vitiated by that circumstance. It also held that voluntariness and intelligent making of the plea may be subsequently established by information supplied by counsel testifying adversely to the client, and that a Rule requiring reversal ipso facto was too inflexible. The excerpted language was clearly dicta.

Subsequently to the decision in Bundle the Supreme Court of Pennsylvania, on November 25, 1968, effective February 3, 1969, amended its Rule 319(a) to require an on the record inquiry to determine that the plea was “voluntarily and understandingly made.” Cases decided by the Supreme Court of Pennsylvania subsequent to the aforesaid amendment have affirmed convictions on pleas of guilty where the trial judge’s only reference to penalty was that the defendant could be sentenced to a “term of imprisonment or fine or both.” (Commonwealth v. O’Neill, 451 Pa. 458, 304 A.2d 108 (1973).) Our research has yielded no case reversed, by the Supreme Court of Pennsylvania, for failure of the trial judge to admonish as to minimum sentence. When Boykin and Bundle are read against the foregoing background, we do not believe that it can be seriously contended that Boykin imposed, as a constitutional standard, a requirement that a defendant be admonished as to minimum sentence.

Federal Rule 11, at the time of the decision in Boykin v. Alabama, 395 U.S. 238 (1989), contained no reference to the minimum sentence. The Rule was couched in general terms in that it required that the district judge should not accept a guilty plea without first determining that the defendant understood, inter alia, “the consequences of the plea.” Numerous Federal cases interpreted the language of the Rule to require admonishment as to the maximum possible sentence, maximum possible fine and the mandatory minimum sentence, if any. In Eagle Thunder v. United States, 477 F.2d 1326 (8th Cir. 1973), defendant had been admonished as to the maximum possible sentence and the maximum possible fine. He contended that Rule 11 had not been complied with in that he had not been admonished that he could be punished by imprisonment in the county jail not to exceed one year. On appeal the plea was sustained, tire court holding the Rule required only an understanding of the maximum possible penalty for the offense. To the same effect, cf., Marshall v. United States, 431 F.2d 35 (7th Cir. 1970); Tucker v. United States, 409 F.2d 1291 (5th Cir. 1989); Perwo v. United States, 433 F.2d 1301 (5th Cir. 1970); Jones v. United States, 440 F.2d 466 (2d Cir. 1971). The requirement of admonishing the defendant as to the mandatory minimum sentence, if any had been established, by case law, in Federal interpretation of tire requirement of old Rule 11 that the defendant understand “the consequences of the plea.” See Durant v. United States, 410 F.2d 689 (1st cir. 1969); Berry v. United States, 412 F.2d 189 (3d Cir. 1969); Bye v. United States, 435 F.2d 177 (2d cir. 1970); Jenkins v. United States, 420 F.2d 433 (10th Cir. 1970); Harris v. United States, 426 F.2d 99 (6th Cir. 1970).

Effective July 1, 1974, Federal Rule 11 was amended to require the trial judge, in accepting a plea of guilty to admonish the defendant as to the “mandatory minimum sentence”. The committee comments state that the objective of the amendment is to insure “* # * that a defendant knows what minimum sentence the judge must impose and * * * This information is usually readily ascertainable from the face of the statute defining the crime, * * * giving this advice tells the defendant the shortest mandatory sentence * * * for the offense to which he is pleading guilty.” (Emphasis added.) (62 F.R.D. 278, 279 (1974).) We also note that the ABA Standards for Criminal Justice, Pleas of Guilty, section 1.4(c) (ii) (approved draft 1968), required only admonishment of the “* * * mandatory minimum sentence, if any, on the charge; * * The Committee Comments state:

“The emphasis in the case law has been upon the requirement that the judge inform the defendant of the maximum possible punishment. This is understandable, as it is ignorance of the maximum which is most likely to serve as a basis for withdrawal of the plea. However, the Advisory Committee believes that tire better practice, which gives the defendant a more realistic picture of what might happen to him, is for the trial judge: (a) to set forth the maximum possible sentence; (b) to set forth the minimum sentence where there is a mandatory minimum * * (Emphasis added.)

The term “mandatory minimum sentence” in the Federal cases means the least possible term which tire district judge must impose because imposition or execution of the imposed sentence may not be suspended, probation may not be granted, and parole is not available. The defendant must, therefore, be sentenced to a term of imprisonment and must serve the entire minimum term imposed. Bradley v. United States, 410 U.S. 605 (1973).

Analysis of the federal cases and Rule 11, then, clearly indicates that the primary concern has been that defendant understand the maximum risk which the plea entails, the harshest consequences which might result from the plea. (See Eagle Thunder v. United States, 477 F.2d 1326 (8th Cir. 1973); Bye v. United States, 435 F.2d 177 (1970).) In Berry v. United States, 412 F.2d 189, 192 (3d Cir. 1969), the court stated:

“The mandate of Rule 11, before and after the 1966 amendment, is designed to insure that the pleader is made aware of the outer limits of punishment. At the very least, this means that he must be apprised of the period of required incarceration. Except for capital punishment, no other consequence can be as significant to an accused as the period of possible confinement. When one enters a plea of guilty he should be told what is the worst to expect. At the plea he is entitled to no less — at sentence he should expect no more. (Emphasis added.)

Likewise, we have examined various cases and court rules dealing with this problem in California, New York, Missouri, Michigan, and Ohio and find that these jurisdictions are similarly concerned that a defendant comprehend the harshest consequences of the plea, and do not require mention of a minimum term except where a mandatory minimum is involved. We have found no case, however, in the reported decisions of those States, or in the Federal cases, or in Illinois (excepting our decision in People v. Harl, 11 Ill.App.3d 372, 297 N.E.2d 404, infra) vitiating a plea on the ground that the defendant was not admonished as to the minimum sentence, with the exception of those cases involving mandatory minimum sentences. It therefore seems clear, that a plea of guilty taken without admonition as to the minimum sentence (excepting those involving mandatory mínimums) is not constitutionally infirm.

Rule 402(a)(2) requires the trial judge to determine that the defendant understands the “* * * minimum sentence prescribed by law.” Though the plea in question in this case is, in our view, constitutionally valid, the question remains whether it was taken in substantial compliance with the Rule since no mention was made of periodic imprisonment. The Rule was adopted long before January 1, 1973, the effective date of the Unified Code of Corrections. It must, therefore, be read in the context of the sentencing structure in effect at the time of the adoption of the Rule. At that time probation was not a sentence, nor was a fine designated as a sentence and the range of minimum sentences then applicable is demonstrated by the example of the penalties prescribed for the offense of aggravated assault. Section 12 — 2(b) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 2(b)) provided that a person convicted of aggravated assault could be imprisoned in a penal institution other than the penitentiary not less than four days nor more than 1 year or in the penitentiary from 1 to 5 years. These are the minimum sentences “prescribed by law” which appeared on tire face of the statute defining the offense and to which Rule 402 referred. The legislature may not enlarge the requirements of Rule 402 by legislative enactment, nor is there any indication that it so intended. The minimum sentences prescribed when Rule 402 was promulgated were minimum in the traditional and commonly understood sense of the word. The designation of probation, conditional discharge and periodic imprisonment as “sentences” in sections 5 — 1—19 and 5 — 5—3 of the Unified Code of Corrections does not alter the meaning of the words “minimum sentence” contained in Rule 402, nor does the statute, in our view, alter the substance of the admonishment as to minimum sentences heretofore required under the Rule. Probation, conditional discharge and periodic imprisonment are alternatives available to the trial judge, and which, in his discretion, he may utilize to ameliorate the harsher consequences entailed in a term of imprisonment. They are alternatives to the traditional term of imprisonment. These alternatives are not minimum sentences within the purview of- Rule 402, and the absence of admonishment as to periodic imprisonment was not error. Rule 402 was fully complied with.

In fairness we call attention to defendants reliance on our opinion in People v. Harl, 11 Ill.App.3d 372, 297 N.E.2d 404, with particular attention to certain language contained therein. In Harl defendant was convicted of the crime of aggravated assault. The record in Harl showed that the defendant was admonished that the minimum sentence was 1 year and the maximum 5 years. Under the provisions of the statute (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 2(b)), the defendant could have been sentenced to a term of not less than 4 days nor more than 1 year in a penal institution other than the penitentiary and was not so admonished. We held such omission to constitute a violation of the plain language of Rule 402(a)(2) which requires admonition as to the minimum sentence. In so doing we stated, “Without such information, the defendant bargains without knowledge of all his bargaining tools." (11 Ill.App.3d at 394.) This language was plain dicta, and improvidently stated. The primary function of admonishing a defendant pursuant to the requirements of Rule 402 is to accomplish a valid plea of guilty, not to provide him with bargaining tools.

Defendant also contends that his minimum sentence of 5 to 20 for the armed robbery is excessive. The docket entry for the date of sentencing stated:

“Defendant John Butchek sentenced to a term of not less than 5 nor more than 20 years in the Department of Corrections, Adult Division, State of Illinois, with credit to be given for four months served while awaiting trial. Defendant Granville Smith sentenced to a term of not less than 4 nor more than 12 years in the Department of Corrections, State of Illinois, Adult Division * # # Sentence as to each defendant is a negotiated sentence, as per plea agreement * « * The reason for disparity of sentence herein is due to the difference in criminal record of the two defendants.” (Emphasis added.)

It is clear from the factual basis of the plea that both Butchek and Smith entered the motel armed with sawed-off shotguns. Both defendants then took various items from the clerk, and both took the clerk back to the car, tied him up and threw him out of the car some blocks later. Both defendants clearly had the same degree of culpability, yet Butchek received a 5-year minimum while Smith received a 4-year minimum. The trial judge clearly pointed out that the reason for the disparity was defendant’s prior criminal record. However, there is no competent evidence in the record establishing that defendant did, in fact, have a prior criminal record. Pursuant to Supreme Court Rule 615(b)(4) we accordingly reduce defendant’s minimum sentence to 4 years and the maximum sentence to 12 years.

For the reasons stated herein the judgment of conviction of the lower court is hereby affirmed, and sentence modified.

Judgment affirmed, sentence modified.

In view of the number of cases pending in the appellate court involving the application of Rule 402 since the effective date of the Code of Corrections, we have this day, on our own motion, granted a certificate of importance and directed the same to issue.

TRAPP, P. J., concurs.

CRAVEN, J., dissents.


source: Caselaw Access Project

author: Mr. JUSTICE LEIGHTON

license: Public Domain

text:
    Herbert Oster, Plaintiff-Appellee, v. The Police Board of the City of Chicago et al., Defendants-Appellants.
    (No. 55961;
    First District (2nd Division)
    September 10, 1974.

      Rehearing denied October 9, 1974.

      Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan and Daniel Pascale, Assistant Corporation Counsel, and Teddy S. Gron, Senior Law Student, of counsel), for appellants.
    Victor F. Ciardelli and Hugh B. Arnold, both of Chicago (Andrew M. Raucci, of counsel), for appellee.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This appeal is to review a judgment that reversed the decision of the Police Board of the City of Chicago by which it ordered Herbert Oster, the appellee, discharged from the Chicago Police Department. The dis-positive issue is whether manifest weight of the evidence supports the findings of fire Board that Oster, a police department sergeant, used his official position for personal gain.

On May 9, 1969, at approximately 10 P.M., a school teacher and his girlfriend were in his automobile on the North Avenue beach parking lot in Chicago. A flashlight was rapped on a window of the driver’s side. And after rolling down the window, the teacher saw it was a police officer and that he was alone. The officer demanded to see the drivers’ licenses of the occupants and then returned to a police car that was 50 to 100 feet away with its parking and interior lights on. The teacher followed tire officer to the car; and as he reached it, the officer told him he had just notified headquarters that two occupants of an automobile were under arrest for public indecency. The officer questioned the young man, learned his name, his address and that he was a probationary teacher employed by the Chicago Board of Education.

Then, the officer told the teacher that he and his girlfriend needed $50 each for bail money. In answer to this, the teacher said he did not have that amount of cash with him. The officer asked him if he could get the needed sum from a friend or a member of his family. The teacher said he doubted this could be done, but he would inquire of his girlfriend if she had that amount of money. The officer then went with the teacher to the automobile and told the girlfriend of the public indecency charge and the fact that bail bond for them required a total of $100. The girlfriend, after examining her purse, said she had only $2 and her checkbook. She suggested, however, that she could cash a $50 check at the McCormick YWCA where she was living.

During these conversations, the teacher spent at least 30 minutes, and the girlfriend approximately 15, observing the officer’s appearance and noting that he spoke with an eastern European accent. When the officer was told that the girl could cash a check at the YWCA, he agreed to follow the couple in his squad car. This was done; the officer parked his car nearby; the girlfriend wrote a check for $50 and took it to a clerk in the McCormick “Y.”

In the meantime, the teacher made a telephone call to a friend in the attempt to obtain the needed money from him; but the effort was unsuccessful. While tire call was being made, the girlfriend cashed the $50 check, met the teacher outside the building and from there they went to the officer. They gave him the $50. In a short conversation that followed, he told them that he was going to explain his loss of about an hour of duty time by telling his lieutenant “* * * that he gave the kids a pass, because they were from his own neighborhood.” Having said that, the officer lectured the teacher and the girlfriend on sexual morality and left with the money.

The following day, the teacher called the Chicago Police Department to complain about the incident of the evening before. However, it was not until Wednesday, May 18, 1969, that he reached the complaint desk and was asked to come in immediately to give a statement. He did; and thereafter, he and his girlfriend appeared before investigating officers of the department and were interrogated. During this period, they were shown a large number of photographs, estimated to have been in the hundreds, and asked to identify the police officer who had taken the $50 from them during the evening of May 9, 1969.

Among the photographs shown the teacher and his girlfriend were pictures of units in the department. One of the units whose photograph was shown was tire one to which Oster belonged. Neither the teacher nor the girlfriend picked out Oster from among the policemen shown in the photograph. On one occasion, in making a tentative identification, the teacher picked out the photograph of a policeman, not Oster. On another occasion, the girlfriend made tentative identifications by picking out the photographs of two officers other than Oster.

Then, on May 28, 1969, at approximately 3 P.M., 4 P.M. and 6 P.M., a watch commander conducted a lineup that was made up of Chicago police officers. And because the officer who was described by the teacher and his girlfriend spoke with an accent, each officer in the lineup was asked to read a card which contained the statement,' “You could be charged with public indecency.” Oster was only in the 6 P.M. lineup. After viewing all the men in each lineup, the teacher picked him out of the last one as the offending policeman. When the girlfriend viewed that lineup, she came to an Officer Mackin who she asked to repeat the statement at least twice. She continued through the lineup and then picked out Oster as the policeman she said had taken the $50 from her and the teacher. Oster was advised of his rights, but interrogation was terminated when he requested the presence of counsel.

A short time later, the department complaint review panel conducted hearings and made its recommendations. On October 14,1969, the superintendent of the Chicago Police Department filed with the Police Board charges that Oster had violated Department Rules 2, 4, 13, 29 and 41. The specifications alleged four acts of misconduct which brought discredit upon the Department: (1) that on May 9, 1969, Oster used his official position as a police officer to obtain money for his personal gain from the school teacher and his girlfriend by telling them that $50 was necessary to eradicate their arrest and possible prosecution for public indecency, an offense with which they were allegedly being charged; (2) that on August 5, 1969, when appearing before the Complaint Review Panel of the Chicago Police Department, Oster attributed statements to Officer Patrick Hayes which were false; (3) that on May 9, 1969, Oster left his assigned duties without being properly relieved or without proper authorization in that he, without permission, left Beat 1882 and proceeded to the vicinity of Oak and Dearborn Streets, the location of the McCormick YWCA, without proper authorization; (4) that on May 9, 1969, Oster discussed bail with persons in his custody by talking with the school teacher and his girlfriend concerning the amount of bond required of them when they were persons then in his custody for the alleged offense of public indecency.

After preliminary motions were made and ruled on, the Board heard the evidence. In support of the charges, the City called the teacher, the girlfriend, the friend whom the school teacher called in the attempt to get the $100 bail bond money, the McCormick YWCA clerk who cashed the girlfriend’s $50 check and four police officers who investigated the charges. On behalf of Oster, the Board heard four reputation and character witnesses. In addition, Oster testified and denied he was near the North Avenue beach parking lot the evening of May 9,1969. He said that at the time it was claimed he was near the McCormick "Y,” he was supervising the work of Patrolman George Romano who was investigating a burglary at 1441 North State Parkway. Romano testified that Oster, as the supervising sergeant, arrived at the scene of the burglary at about 20 minutes before 11 P.M. Then, taking the cause under advisement, the Board found that the charges had been sustained and entered an order which directed that “* * * Herbert Oster, be * * * separated from his position as a Sergeant in the Department of Police.”

Within the statutory period, Oster invoked the Administrative Review Act and filed a complaint against the Board, its officers and members praying for an order directing it to file the record of the proceedings before it as answer to his complaint and for judicial review of those proceedings. He prayed for an order reversing and setting aside the findings and decision of the Board with the request that he be ordered reinstated as a police officer of the City of Chicago. Within the time required, the Board filed its answer which included the record of the proceedings against Oster. After hearing the parties, the trial court entered an order “* * * that the findings of the defendant Police Board are against the manifest weight of the evidence.” It reversed the decision.

In determining whether the Board’s findings were supported by manifest weight of the evidence; and whether, because they were, it was error for the trial court to reverse the decision, we bear in mind that the findings and conclusions of an administrative agency on questions of fact are prima facie true and correct. (See Ill. Rev. Stat. 1969, ch. 110, par. 274.) Of course, such findings have to be supported by evidence. (Drezner v. Civil Service Commission, 398 Ill. 219, 75 N.E.2d 303.) And while they can be reviewed to determine their support in the record, they cannot be set aside unless they are against the manifest weight of the evidence. (Zinser v. Board of Fire & Police Commissioners, 28 Ill.App.2d 435, 172 N.E.2d 33.) Mere conflict, however, between the testimony of witnesses will not justify a trial court concluding that the findings of an administrative agency must be set aside. See Schwarze v. Board of Fire & Police Commissioners, 46 Ill.App.2d 64, 196 N.E.2d 724; Avent v. Police Board, 49 Ill.App.2d 228, 199 N.E.2d 637; Ceja v. State Police Merit Board, 12 Ill.App.3d 52, 298 N.E.2d 378.

In this case, the Board heard the testimony of the teacher and his girlfriend that on the evening of May 9, 1969, they had an adequate opportunity to observe the officer in question and that Oster was the Chicago police officer who took $50 from them through the subterfuge of saying that they were under arrest for public indecency. These two witnesses, in material part, were supported by the friend whom the teacher called and by the McCormick YWCA clerk who cashed the $50 check. The teacher and his girlfriend were positive and certain in their identification of Oster. Moreover, Oster himself, in an interesting way, corroborated them when he testified that at approximately 10:30 P.M. on the evening in question, while in his squad car, he received a radio call concerning a suspicious man in the 1100 block of North Dearborn Street. The girlfriend had testified that while she was in Oster’s police car the same evening, a radio call about a strange man on North Dearborn Street diverted his attention. The girl’s recollection of this radio call considered with Oster’s admission that he received a similar one at approximately the same time, tended to support complainants’ version of the events.

The Board also heard the watch commander who testified concerning the lineup from which the two complainants picked out Oster as the offending policeman. The commander described how, before picking out Oster, the girlfriend hesitated when she came to the police officer named Mackin. A sergeant told the Board about the hundreds of photographs he showed the two witnesses, including pictures of the unit to which Oster belonged, all in the effort to get an identification of the offending policeman. Putting all of it into perspective, the sergeant described how the teacher and the girlfriend made prior tentative identifications of at least three policemen, other than Oster.

In contrast with the couple’s testimony concerning Oster’s identity as the offending policeman, the Board heard Oster testify that at the time it was claimed he was receiving the $50 near the McCormick YWCA, he was in fact supervising a burglary investigation a short distance away. In support of this alibi, Oster had the testimony of a fellow officer who described his presence at the other place. In addition, Oster bolstered his defense with the testimony of four character and reputation witnesses.

Thus, as to Oster’s identity, the Board had conflicting evidence before it. But resolution of conflicts in the evidence, even concerning identity of a person, was a matter entirely within the Board’s province. (Compare Avent v. Police Board of City of Chicago, 49 Ill.App.2d 228, 199 N.E.2d 637.) And in determining whether in this administrative proceeding the Board properly resolved tire conflict, analogy can be made to cases from the criminal law where identity has to be proved beyond a reasonable doubt. In criminal cases, omissions or discrepancies in the description of a person do not necessarily affect the validity of an identification, although such deviations go to the weight to be given the testimony of a witness. (See People v. Claypool, 6 Ill.App.3d 620, 285 N.E.2d 200; People v. Bennett, 9 Ill.App.3d 1021, 293 N.E.2d 687; People v. Del Genio, 10 Ill.App.3d 437, 294 N.E.2d 78.) In such cases, the method and manner of an identification only affect the weight of the evidence. (People v. Tunstall, 17 Ill.2d 160, 161 N.E.2d 300; People v. Sulton, 130 Ill.App.2d 1098, 266 N.E.2d 351; People v. Burke, 131 Ill.App.2d 76, 266 N.E.2d 547.) With regard to an alibi, even in a rape prosecution, the trier of the facts is under no obligation to believe defense witnesses over positive identification of an accused. (People v. Newson, 133 Ill.App.2d 391, 273 N.E.2d 416.) Therefore, in these proceedings where proof was by a preponderance of the evidence rather than beyond a reasonable doubt, the Board was not required to accept the testimony of Oster and his witnesses concerning the alibi, even though they were not directly impeached. Compare People v. Pierre, 114 Ill.App.2d 283, 252 N.E.2d 706.

For these reasons, we conclude that the findings of the Police Board by which it ordered Oster discharged from the Chicago Police Department were supported by the manifest weight of the evidence. This being so, it was error for the trial court to set aside the Board’s decision. (Adamek v. Civil Service Commission, 17 Ill.App.2d 11, 149 N.E.2d 466; Kohout v. Civil Service Commission, 28 Ill.App.2d 388, 171 N.E.2d 683.) Accordingly, the judgment is reversed and the cause is remanded with directions that the trial court affirm the findings and decision of the Police Board of the City of Chicago.

Reversed and remanded with directions.

HAYES, P. J., and DOWNING, J., concur.


author: Mr. JUSTICE BURMAN

text:
    Bank of Lyons, Plaintiff-Appellant, v. Alvin A. Schultz et al., Defendants—(Mary Schultz, Defendant-Appellee.)
    (No. 59189;
    First District (4th Division)
    September 11, 1974.

      Hoffman & Davis, of Chicago, for appellant.
    Edward J. Barrett, of Chicago, for appellee.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

This action was begun by the Bank of Lyons on April 13, 1962, as a creditor’s suit to enforce a judgment against Alvin Schultz for $61,038.94. Named as defendants were Alvin Schultz, Mary Schultz, his former wife and the present appellee, several insurance companies that had issued policies on the life of Alvin Schultz, and others not related to this appeal. Alvin Schultz died during the pendency of the action. On July 19, 1963, the plaintiff was given leave to amend its complaint by adding a second count. This alleged that Alvin Schultz and Mary Schultz had conspired to defraud the plaintiff of $240,301.87 and sought, among other relief, a decree enjoining the insurance companies from paying the death benefits under any of the policies. The court granted the injunction and ordered the companies to file interpleader actions and to deposit the proceeds of the policies with the clerk of the circuit court. Pursuant to this decree, three companies filed interpleader actions and deposited a total of $61,525.77 with the court. Mary Schultz moved for summary judgment, and on September 24, 1965, the court entered an order granting her motion. In the same order, the court found that the injunction had been wrongfully issued, and granted Mary Schultz leave to file a suggestion of damages. It also directed the clerk to deliver to Mary Schultz all of the funds on deposit with him in excess of $30,000.

In a second order entered on September 24, 1965, the court granted the plaintiff leave to amend its complaint a second time by adding a third count in which it sought to recover $24,387.06 from Mary Schultz. This sum represented the losses allegedly due to a personal check drawn by Mary Schultz and credited to her account with the plaintiff, but returned by the drawee bank uncollected ($10,200) and various cashiers checks issued by the plaintiff to Mary Schultz without consideration. This portion of the complaint was referred to a master in chancery. In the proceeding before the master, Mary Schultz moved for judgment at the close of the plaintiff’s case, and the master recommended in his report that her motion be granted. On September 18, 1969, the court entered a decree approving the master’s report and granting the motion of Mary Schultz for judgment. The plaintiff appealed from this decree, and this court affirmed the judgment in favor of Mary Schultz as to the personal check on the ground that the plaintiff had not met its burden of proving that Mary Schultz had not suffered a loss as a result of its failure to provide timely notice that the check had been dishonored, but reversed and.remanded the judgment as to the cashier’s checks for further proceedings on the ground that the trial court had not made sufficient findings of fact to sustain its conclusion that Mary Schultz was a holder in due course of the checks. See Bank of Lyons v. Schultz (1971), 1 Ill.App.3d 495, 275 N.E.2d 277.

On February 16, 1972, which was after the remand, Mary Schultz filed a petition seeking release of the $30,000 that remained on deposit with the clerk of the circuit court. The plaintiff filed a cross petition seeking the same funds and requesting that the court vacate its finding that the injunction was wrongfully issued and withdraw the leave given Mary Schultz to file a suggestion of damages. On June 21,1972, the court entered an order granting the petition of Mary Schultz and denying the cross petition of the plaintiff.

On August 1, 1972, Mary Schultz filed her suggestion of damages, claiming $17,442.38 interest, $5,236.25 attorney’s fees, $1,184.61 court costs and court reporter’s charges, and $1,278.62 reimbursement for fees paid to the master who originally heard evidence on count III of the complaint. The court heard evidence on the suggestion of damages and on March 6, 1973, entered an order awarding Mary Schultz $17,442.38 interest, $4,967.50 attorney’s fees, $415.02 court costs, and $1,278.62 reimbursement for the master s fees. The court entered judgment against the plaintiff for the total amount of the award. In the same hearing the court also heard evidence on the remanded portion of count III of the complaint (concerning the cashiers checks) and at its conclusion entered judgment in favor of Mary Schultz.

The plaintiff instituted the present appeal on April 4,. 1973. It appealed from the following orders: (1) the order finding that the injunction was wrongfully issued, directing payment of part of the funds on deposit with the clerk of the court to Mary Schultz, and granting Mary Schultz leave to file a suggestion of damages; (2) the order granting Mary Schultz’s petition for the release of the balance of the funds and denying the plaintiff’s cross petition; (3) an order, entered September 29, 1972, striking plaintiff’s interrogatories to Mary Schultz concerning whether she had suffered any loss as a result of the plaintiff’s failure to give her timely notice that the $10,200 check had been dishonored; (4) an order, entered September 29, 1972, denying the plaintiff’s motion for leave to reopen its proof with respect to the $10,200 check; (5) the order awarding Mary Schultz judgment on her suggestion of damages and denying the plaintiff’s motion for judgment at the close of the proof on the suggestion of damages; and (6) the order granting Mary Schultz judgment on the remanded portion of count III of the complaint. On appeal the plaintiff contends that (1) it was entitled to the proceeds of the insurance on the life of Alvin Schultz; (2) the injunction of July 19, 1963, was not wrongfully issued; (3) Mary Schultz is not entitled to recover anything on her suggestion of damages; (4) Mary Schultz did not succeed in establishing that she was a holder in due course of the cashier’s checks issued by the plaintiff because she did not establish that she took them for value; and (5) that the court had the authority to permit the plaintiff to reopen its discovery and proof relating to the $10,200 check.

We first consider the plaintiff’s contention that it was entitled to the proceeds of the insurance on the life of Alvin Schultz. Although the notice of appeal states that the plaintiff seeks reversal of both the order of September 24, 1965, directing payment to Mary Schultz of all the proceeds in excess of $30,000 and the order of June 21, 1972, granting Maiy Schultz’s petition for release of the balance, the plaintiff’s argument concerns only its entitlement to the $30,000 that remained on deposit after entry of the order of September 24, 1965. It argues that these funds were impressed with an equitable lien in its favor and therefore that the trial court erred in decreeing that Mary Schultz had a vested interest in them and was their sole owner and that, in addition, they were exempt from execution, attachment, garnishment or other - process by virtue of section 238 of the Insurance Code (Ill. Rev. Stat. 1973, ch. 73, par. 850).

The present action was begun as a creditors suit. Such a suit creates an equitable hen upon all the property owned by the debtor at the time that it is commenced. (First National Bank v. Gage (1879), 93 Ill. 172.) The equitable lien so created survives the subsequent death of the debtor and is superior to interests in the property that arise upon, and by reason of, his death, the theory being that, once having attached, the hen follows the property into the hands of the debtor’s heirs or devisees. (Thomas v. Richards (1958), 13 Ill.2d 311, 148 N.E.2d 740.) We agree, then, with the plaintiff’s conclusion that upon the filing of its suit, all of Alvin Schultz’s assets were subjected to an equitable hen in favor of the plaintiff, which was not extinguished by Alvin Schultz’s death.

It does not follow, however, that this hen attached to the proceeds of the insurance on Alvin Schultz’s life. It is recognized, both in Illinois and elsewhere, that the proceeds of hfe insurance are not an asset of the insured and that, in fact, they do not come into existence until after his death. (Vieth v. Chicago Title & Trust Co. (1940), 307 Ill.App.99, 30 N.E.2d 126; 2A Appleman, Insurance Law and Practice § 1341 (1966).) Thus it seems clear that no hen could have attached to the proceeds of the policies at the time that the plaintiff commenced its suit because they were neither in existence nor an asset of the debtor. (See First National Bank v. Gage (1879), 93 Ill. 172, wherein the court held that the hen of a creditor’s bill attached only to property owned by the debtor at the time that the bill was filed.)

Furthermore, the rule is that immediately upon the death of the insured, the beneficiary named in the policy obtains a vested and absolute right to the proceeds, which is subject only to contrary provisions in the policy. (Myers v. Modern Woodmen of America (1917), 205 Ill. App. 45; Hodalski v. Hodalski (1913), 181 Ill.App. 158; 2 Appleman, Insurance Law and Practice § 921 (1966).) Therefore Mary Schultz, who was the named beneficiary in the present policies, obtained an absolute right to receive the proceeds immediately upon the death of Alvin Schultz. Based upon this, it is our conclusion that the trial court was correct in finding that the proceeds were not subject to any lien in favor of the plaintiff and were the sole property of Mary Schultz.

We have examined the cases cited to us on this point by the plaintiff and find that they are inapplicable to the present case in that, while all concern creditor’s bills generally, none concerns the proceeds of insurance on the life of the debtor. Because the foregoing reasoning is sufficient to sustain the trial court’s findings, we deem it unnecessary to consider the plaintiff’s contention that the court erred in finding that the proceeds were exempt from process under section 238 of the Insuranee Code (Ill. Rev. Stat. 1973, ch. 73, par. 850). That portion of the order of September 24, 1965, directing the clerk of the circuit court to pay Mary Schultz the funds on deposit in excess of $30,000 and that portion of the order of June 21, 1972, directing the clerk of the circuit court to pay Mary Schultz the remaining $30,000 and denying the cross petition of the plaintiff for the same funds are affirmed.

We next consider whether the injunction of July 19, 1963, was wrongfully issued. It is the position of Mary Schultz that the plaintiff is barred from appealing this point because it did not appeal within 30 days after entry of the order of September 24, 1965, which specifically found that the injunction had been wrongfully issued. In our view this argument is without merit because the present case is one involving multiple issues, only one of which was resolved by the order of September 24, 1965. Since the order did not contain an express finding by the trial court that there was no just reason for delaying an appeal, it was not appealable until all of the issues in the case had been finally adjudicated. (Ill. Rev. Stat. 1973, ch. 110A, par. 304(a).) This occurred on March 6, 1973. We hold, therefore, that the plaintiff is not barred from raising this issue in the present appeal.

Concerning the injunction itself, the plaintiff argues simply that it was properly issued because section 49 of the Chancery Act (Ill. Rev. Stat. 1973, ch. 22, par. 49) expressly provides for the issuance of injunctions in creditor’s suits to prevent the transfer of property belonging to the debtor, because our courts have recognized that the issuance of a temporary injunction is proper in such cases in order to maintain the status quo, and because it was necessary to protect the plaintiff’s equitable lien in the insurance proceeds. We have already held that the plaintiff had no equitable lien in the insurance proceeds, and the mere fact that the issuance of an injunction has been held proper in certain appropriate cases does not lead to the conclusion that the injunction was properly issued in the present case. The record establishes that the court held a hearing at which it considered the affidavits of the parties with respect to count II of the complaint and heard the arguments of counsel. Following this, it made a specific finding that the injunction had been wrongfully issued and should be dissolved. The record does not disclose the precise reasons for this finding, but we can only assume that it was because the trial court determined from the information presented at the hearing that the plaintiff had not succeeded in establishing the alleged reasons for the issuance of the injunction. We have reviewed the record and are in accord. We hold, therefore, that the trial court correctly found that the injunction had been wrongfully issued, and we affirm that portion of the order of September 24, 1965, that so finds, and that portion of the order of June 21, 1972, that denies the plaintiffs cross petition for modification of the order of September 24, 1965.

We next consider the contention that Mary Schultz was not entitled to recover anything upon her suggestion of damages. Section 12 of the Injunctions Act (Ill. Rev. Stat. 1973, ch. 69, par. 12) provides that “[i]n all cases where an injunction is dissolved * * * the court, after dissolving such injunction, and before finally disposing of the suit, upon the party claiming damages by reason of such injunction suggesting, in writing, the nature and amount thereof, shall hear evidence and assess such damages as the nature of the case may require # * As stated in Schien v. City of Virden (1955), 5 Ill.2d 494, 126 N.E.2d 201, the purpose of this provision is to provide a summary means of assessing damages for the wrongful issuance of a temporary injunction which is dissolved prior to the entry of final judgment.

The plaintiff argues first that Mary Schultz is not entitled to damages because the injunction was not wrongfully issued. We have discussed this contention previously and need not discuss it further. Second, the plaintiff argues that Mary Schultz is not entitled to recover damages under section 12 of the Injunctions Act because the injunction was not dissolved prior to a final judgment being rendered in the case. This argument is premised upon the fact that the order finding that the injunction had been wrongfully issued and granting Mary Schultz leave to file a suggestion of damages was contained in the same order that granted Mary Schultz summary judgment on count II of the complaint. It is the plaintiffs position that the summary judgment on count II constituted a final judgment on the merits. This argument is untenable. On the same day that the court entered its order finding that the injunction had been wrongfully issued, it entered an order allowing the plaintiff to amend its complaint to add a third count, and the cause continued to be litigated for some 8 more years while count III was tried, appealed, and retried upon remand. Moreover, the order of September 24, 1965, only required the clerk to turn over the insurance proceeds in excess of $30,000, necessitating the further petitions of both Mary Schultz and the plaintiff seeking the balance of the funds. In view of this and in view of our previous discussion concerning the applicability of Supreme Court Rule 304(a) to the present case, it is our opinion that final judgment was rendered on March 6, 1973, and we so hold.

Third, the plaintiff argues that Mary Schultz was not entitled to recover any attorney’s fees upon her suggestion of damages because all of the expenses that she incurred prior to the dissolution of the injunction were incurred in the general defense of count II of the complaint, and the expenses incurred after dissolution are not recoverable. It cites Landis v. Wolf (1903), 206 Ill. 392, 69 N.E.103, and Cromwell Paper Co. v. Wellman (1959), 23 Ill.App.2d 263, 162 N.E.2d 500, as authority for this position. In our view, however, these cases turn on the failure of the defendant to distinguish between expenses incurred in the general defense of the suit and those incurred in the dissolution of the injunction. The rule, as stated in Landis, is that where counsel fees are necessarily incurred in procuring the dissolution of an injunction, they may be allowed as damages, but where dissolution of the injunction is only incidental to the defense of the action, and the counsel fees are incurred in defending the action, they cannot be assessed as damages.

In the present case, the only evidence concerning the attorney’s fees sought by Mary Schultz was provided by her own counsel, who testified as an expert witness that the services rendered prior to September 24, 1965, were absolutely necessary to obtain dissolution of the injunction and that the services rendered after September 24, 1965, were necessary to obtain the release of the funds that remained on deposit with the clerk of the circuit court. This testimony is uncontradicted, and we cannot say that the court’s award is against the manifest weight of the evidence.

Fourth, the plaintiff contends that, assuming Mary Schultz is entitled to damages, she is entitled to interest on the insurance proceeds only from the date that the injunction was issued to the date on which the insurance companies deposited the proceeds with the clerk of the court pursuant to the orders entered on their bills of interpleader. The plaintiff offers no authority for this proposition, and indeed, we are aware of none. We are of the opinion that the order of the trial court awarding interest from the date of Alvin Schultz’s death (May 20, 1963) to the date that the clerk of the circuit court paid the last of the funds on deposit with him to Mary Schultz (June 26, 1972) was proper.

Finally, the plaintiff states that there has been a final judicial determination that Mary Schultz should in equity pay 25 percent of the master’s fees. The order entered September 18, 1969, provided, among other things, that the clerk of the circuit court should turn over to Mary Schultz, the balance of the funds on deposit with him, less $1,278.62, which represented Mary Schultz’s liability for her share of the master’s fees. Thus, the plaintiff argues, the court erred in awarding Mary Schultz reimbursement of this amount on her suggestion of damages. This argument overlooks the fact that the hearing on the suggestion of damages was an entirely separate proceeding and that section 12 of the Injunctions Act allows for the award of all damages occasioned by the wrongful entry of the injunction. We find the reimbursement for master’s fees to have been proper.

We next consider the plaintiff’s contention that the trial court erred in entering judgment for Mary Schultz on the remanded portion of count III of the complaint. As we have noted above, this court held in Bank of Lyons v. Schultz (1971), 1 Ill.App.3d 495, 275 N.E.2d 277, that Marty Schultz’s testimony was not sufficient to sustain the finding that she was a holder in due course of the cashier’s checks under section 52 of the Negotiable Instruments Act (Ill. Rev. Stat. 1955, ch. 98, par. 72), which was in effect at the time of the transactions in question, but that, inasmuch as all of her testimony was given while testifying as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 60), the cause should be remanded and she given an opportunity to develop her own evidence on the point. Section 52 provides that, in order to qualify as a holder in due course, a holder must take an instrument in good faith, for value, and without notice of an infirmity or defect in the title of the person negotiating it. In the present appeal the plaintiff apparently concedes that Mary Schultz established that she took the checks from Alvin Schultz in good faith and without knowledge of any defects in his title. It argues, however, that she did not succeed in establishing that she gave full value for them. After reviewing the record, we conclude that the trial court’s findings are adequately supported.

The substance of Mary Schultz’s testimony was that from time to time she made loans totalling $10,292.55, in the form of checks drawn on her personal account, to or for the use of the Knox Steel and Wire Company, of which she and Alvin Schultz were the sole stockholders. She made these loans at Alvin Schultz’s request and upon the promise that she would be repaid in full.

From 1956 through 1959 she received cashier’s checks, drawn by the plaintiff, totalling $9,187.06, from Alvin Schultz in partial payment of the loans. She testified that she did not keep a running account of her loans to Knox Steel and Wire and could not tell how much was owed to her at any one time. However, the record establishes that by August 7, 1956, the date of the first cashier’s check which was for $1150, she had advanced $4,787.55. By February 25, 1958, the date of the next cashier’s check, which was for $1,800, she had advanced a total of $7,477.55, and by June 19, 1958, the date that she received all but the last of the checks, she had advanced a total of $10,292.55. Although she was unable to state precisely how much was owed her on the date of each cashier’s check, we believe that the foregoing is sufficient to sustain the conclusion that the balance due her at any given time exceeded the value of the cashier’s checks that she received. Therefore the trial court could have found that the cashier’s checks were given in repayment of the loan and hence were given for full value. (See Manning v. McClure (1865), 36 Ill. 490; Ill. Rev. Stat. 1955, ch. 98, par. 45.) As we have often said, the trial court, which hears and observes the witnesses, is in the best position to sift the evidence and determine questions of fact, and unless its findings are against the manifest weight of the evidence, they will not be disturbed by this court. (Elliott v. Nordlof (1967), 83 Ill.App.2d 279, 227 N.E.2d 547.) The judgment in favor of Maiy Schultz on count III of the complaint is therefore affirmed.

Finally we consider the plaintiff’s contention that the trial court erred in refusing to allow it to reopen its proof and discovery concerning the $10,200 personal check. In Bank of Lyons v. Schultz (1971), 1 Ill.App.3d 495, 275 N.E.2d 277, this court stated simply that the judgment in favor of Mary Schultz on the claim concerning the $10,200 check was affirmed. In our view this ended the litigation on the matter, and the trial court was without authority to reopen it. We find no error, therefore, in the order striking the plaintiff’s interrogatories as to the check and denying its motion for leave to reopen its proof.

For the foregoing reasons, the orders appealed from are affirmed.

Affirmed.

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


author: Mr. JUSTICE JOHNSON

text:
    Sidney S. Altman, Plaintiff-Appellant, v. Irene J. Altman, Defendant-Appellee.
    (No. 59387;
    First District (4th Division)
    September 11, 1974.

      Rehearing denied October 9, 1974.

      Sidney S. Altman, pro se.

    No appearance for appellee.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff filed an action in the municipal department of the circuit court of Cook County on April 11, 1973, alleging that defendant wrongfully converted to her own use bank deposits belonging to both parties and insurance rebates intended for plaintiff. The complaint also stated that a divorce suit between the parties was pending. A motion was filed by defendant to strike the complaint. After a hearing before the Honorable Richard L. Samuels on June 8, 1973, plaintiff’s complaint was dismissed without prejudice on the ground that the issues therein were or could have been litigated in prior divorce proceedings.

Plaintiff appeals on the theory that there was not, nor could there have been, a prior adjudication of his present claim. He presents the following issues for review:

1. A tort action seeking money judgment is not within the jurisdiction of the divorce court;
2. Collateral estoppel does not apply to claims in new suits under a new theory even though facts previously pleaded are the same;
3. The burden of proving res judicata is on the party urging a prior adjudication; and
4. A voluntary nonsuit permits plaintiff to filé anew.

On April 15, 1971, defendant herein, Irene J. Altman, filed a divorce complaint, No. 71D858, against plaintiff herein, Sidney S. Altman. He subsequently filed a counterclaim for separate maintenance which asserted, in Count II, that he had an interest in certain funds that had been withdrawn by counter-defendant and deposited in a trust account for her son, Marc H. Diament. The counterclaim alleged that one bank account had been opened by Irene J. Altman in her own name with funds derived from wedding gifts intended for both parties, and that the other bank account in which he claimed an interest was opened in the joint names of both parties and included funds derived from professional services rendered by him in connection with the sale of a building owned by counter-defendant. The counterclaim further alleged that counter-defendant received insurance checks intended to reimburse counter-plaintiff for overpayments. The following relief was prayed for: (a) an accounting by counter-defendant, and an order that she pay counter-plaintiff such funds as may be found due him, and (b) a constructive trust impressed upon trust accounts in the name of Marc H. Diament.

Counter-defendant, Irene J. Altman, filed an answer to the counterclaim in the divorce action. In her answer to Count II, counter-defendant averred that she had no knowledge as to whether wedding gifts were deposited in the account opened in her name and, if so, any amounts so deposited were nominal and long-ago spent for the mutual benefit of both parties. The answer denied that counter-plaintiff asked for financial consideration for professional services rendered in connection with the sale of her property. Further, counter-defendant denied any obligation to reimburse counter-plaintiff from insurance payments she received.

A jury was demanded by counter-plaintiff in the divorce action. On May 22, 1972, the jury returned a verdict against plaintiff on the complaint and against defendant on his counterclaim. On October 17, 1972, Count II of the counterclaim was voluntarily nonsuited by court order and judgment was entered on the verdict. The defendant filed a notice of appeal and, on January 13, 1973, the appellate court granted appellee’s motion to dismiss.

On June 23, 1972, Sidney S. Altman filed a new action for divorce in No. 72D12414. By court order and over plaintiff’s objections, this action was consolidated with the prior suit. On December 18, 1972, plaintiff indicated to the court that he did not wish to prosecute his complaint. On April 11, 1973, the court ordered the cause dismissed.

The instant action was filed by Sidney S. Altman in the municipal department on April 11, 1973. At issue were the same funds that were the basis for Count II of plaintiff’s counterclaim in the initial divorce action. The instant complaint stated that the parties were presently living apart and a divorce suit was pending. It alleged that, one week before defendant filed her divorce complaint in No. 71D858, she withdrew all funds on deposit in two bank accounts belonging to the parties, without the knowledge or consent of the plaintiff, and wrongfully converted his one-half ownership of $5,106.43 to her own use. The complaint further alleged that defendant, Irene J. Altman, converted the balance of $480 insurance reimbursement payments due the plaintiff to her own use.

Irene J. Altman filed a motion to strike the complaint, alleging a failure to establish an ownership interest in the bank accounts or insurance reimbursement. At the hearing on defendant’s motion to strike, the court dismissed the complaint without prejudice on the ground that the issues therein “were or could have been litigated in divorce division proceedings 71D858 and 72D12414.” The court further found, “This is a final order. There is no just reason for delaying the enforcement or appeal hereof.”

The appellee failed to file a brief in accordance with Supreme Court Rule 341 (Ill. Rev. Stat. 1971, ch. 110A, §341). Therefore, this court may in its sound discretion determine the case on its merits or reverse because of the failure of the appellee to comply with the Supreme Court Rule. (Shinn v. County Board of School Trustees (1970), 130 Ill.App.2d 908, 266 N.E.2d 123; People v. Spinelli (1967), 83 Ill.App.2d 391, 227 N.E.2d 779.) We have decided to determine the case on its merits.

We turn to a consideration of plaintiff’s contention that there was not, nor could there have been, a prior adjudication of his present claim. The record shows that there were two prior divorce proceedings involving these parties. In the first action, No. 71D858, plaintiff herein filed a counterclaim, Count II of which brought before the court the question of the disposition of property in which he claimed an interest. This count was voluntarily nonsuited, and judgment was entered on the jury’s verdict against defendant on his counterclaim.

In this proceeding, at issue is the recovery of the same funds that were before the court in the initial divorce action. After a careful examination of the proceedings, we agree with the trial court’s finding that the disposition of Sidney S. Altman’s property rights was or could have been litigated in the divorce proceedings.

It is well settled in Illinois that the concept of res judicata includes all issues actually raised and those that could have been presented but were not. (Bandringa v. Bandringa (1960), 20 Ill.2d 167, 178, 170 N.E. 2d 116, 121-22; O’Brien v. O’Brien (1941), 311 Ill.App. 435, 445, 36 N.E.2d 466, 470.) The purpose of the doctrine of res judicata, based upon the requirements of justice and public policy, is to end litigation except where the issue arises on appeal to set aside or reverse former litigation. McCorkle v. McCorkle (1972), 6 Ill.App.3d 1053, 287 N.E.2d 134.

The criteria for applying the doctrine of res judicata was set forth by the court in McCorkle v. McCorkle (1972), 6 Ill.App.3d 1053, 1056; 287 N.E.2d 134, 136:

“[W]hen a former adjudication is relied upon as an absolute bar to a subsequent action, the only questions to be determined are whether the cause of action is the same in both proceedings, whether the two actions are between the same parties or their privies, whether the former adjudication was a final judgment or decree upon the merits, and whether it was within the jurisdiction of the court rendering it.”

Applying this criteria to the facts in the instant case, we find that the two actions are between the same parties, the former adjudication was a final judgment upon the merits and was within the jurisdiction of the court rendering it. Moreover, in both actions plaintiff sought to recover the same funds, which were claimed by both parties.

In Dryz v. Bol (1958), 19 Ill.App.2d 406, 153 N.E.2d 859, the plaintiff filed a complaint in equity against his former wife, seeking to establish a resulting trust in real estate which was allegedly purchased with his own funds. In a prior divorce case, the court did not expressly adjudicate the controversy presented in the subsequent case, but the record revealed that the parties intended to bring and brought before the court the question of the disposition of all property in which both had a possible claim or interest. It was concluded that the matter at issue in the subsequent case had been decided by the divorce court, and that its failure "to specifically mention tire question at issue in the instant case does not impair the application of the doctrine of estoppel by decree. City of Elmhurst v. Kegerreis, 392 Ill. 195, 208.” 19 Ill.App.2d at 410.

In our opinion, the plaintiff in the instant case intended to bring and did bring before the divorce court the question of the disposition of the funds in which he had a possible claim or interest. The case was tried before a jury, and judgment was entered against defendant on his counterclaim. Since the question of the disposition of property rights was raised in the prior divorce action, we hold that the trial court did not err in finding that the issues presented in plaintiff’s present action were or could have been litigated in the divorce proceedings.

Plaintiff contends that a tort action seeking money judgment is not within the jurisdiction of the divorce court. As authority for this proposition, he cites the following language from Cross v. Cross (1954), 2 Ill.2d 104, 108, 116 N.E.2d 892, 895:

“It is the established rule that the jurisdiction of a court hearing divorce matters is based upon statute rather than upon general equity powers.”

In our opinion, the foregoing case is not authority for the argument advanced by plaintiff. In Cross, the wife was granted a decree of divorce which reserved the question of property rights. In a supplemental counterclaim, the wife alleged an interest in certain real estate belonging to her deceased husband although no property settlement was ever made pursuant to the reservation in the decree of divorce. The trial court refused to hear evidence by which appellant sought to establish an equitable interest in the property. The Supreme Court of Illinois reversed, concluding that the appellant was entitled to a full hearing on the issue raised and that the court erred in refusing proof of the equities alleged. Here, plaintiff was not precluded by the court from presenting proof of his claim in the original divorce action.

In a divorce action, the court may adjust the equities of the parties in any property owned by them jointly. (Podgornik v. Podgornik (1945), 392 Ill. 124, 63 N.E.2d 715.) Here, plaintiff claims that the property at issue belonged to both parties, while defendant alleged that plaintiff had no ownership interest therein. Therefore, we believe that the determination of the parties’ equitable interests in the property was properly before the court in the divorce action.

Secondly, plaintiff contends that collateral estoppel does not apply to claims in new suits under a new theory even though the facts pleaded are the same. He urges that he should have been permitted to maintain the instant action because the relief sought in this case is different from that sought in the divorce action.

In the divorce proceeding, Count II of plaintiff’s counterclaim prayed for an accounting, payment of funds found due him, and a constructive trust placed upon trust accounts in the name of Marc H. Diament. Here, defendant seeks a money judgment. However, plaintiff sought the recovery of the same funds in both actions. In our opinion, the issue was the disposition of property rights between husband and wife and was or could have been litigated in the divorce proceedings.

As support for his contention, plaintiff relies upon the following language in Gudgel v. St. Louis Fire & Marine Insurance Co. (1971), 1 Ill.App.3d 765, 771, 274 N.E.2d 597, 601-02:

“The Illinois courts have recognized that where a plaintiff is defeated in an action based on a certain theory of his legal rights or as to the legal effects of a given transaction or state of facts through failure to substantiate his view of the case, this will not as a rule preclude him from renewing the litigation without any change of facts, but basing his claim on a new and more correct theory.”

The court went on to state:

“The new theory may not be merely a change in theory of what is essentially a single cause of action. If that is the case, the doctrine of res judicata will apply.”

Gudgel was not a matter-between husband and wife. That controversy • arose out of a motor vehicle accident. Plaintiff’s first action was in tort and was based on a theory of agency. The second action was brought in contract and was based upon a policy of insurance. Here, however, the parties were husband and wife, and the subject matter at issue in both actions was two bank accounts in which they both claimed an interest. Thus, we find that both actions concern the adjustment of property rights between husband and wife, and the same cause of action is involved in both instances.

In so holding, we are mindful that the burden of proving res judicata is on the party relying upon the prior bar. We note, however, that there was no disputed issue of fact regarding the subject matter before the court in the prior action. The record reveals that the same parties and the same cause of action were involved in both the present and the former proceedings. Thus, we find no error in the trial court’s conclusion that the issues presented in this action were or could have been adjudicated in the prior proceedings.

Finally, we turn to plaintiff’s contention that a voluntary nonsuit permits him to file anew. The record of the original divorce action reveals that the jury returned its verdict on May 22, 1972, and that counter-plaintiff obtained a nonsuit on his counterclaim on October 17, 1972.

The general rule in Illinois is that a nonsuit may not be granted after trial has commenced. (Gilbert v. Langbein (1951), 343 Ill.App. 132, 98 N.E.2d 140.) Here, however, the nonsuit in the original divorce action was granted almost 5 months after the jury returned its verdict but on the same day that judgment was entered on the verdict. Since the nonsuit was granted after plaintiff’s claim was decided by the jury, we disagree with his contention that the nonsuit permitted him to begin his action anew.

For the foregoing reasons, we hold that the trial court did not err in finding that the issues presented in this complaint were or could have been adjudicated in prior divorce proceedings. The judgment of the circuit court of Cook County is, therefore, affirmed.

Affirmed.

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


author: Mr. JUSTICE LORENZ

text:
    Ernestine Marcano, Plaintiff-Appellant, v. The Chicago Transit Authority et al., Defendants-Appellees.
    (No. 58735;
    First District (5th Division)
    September 13, 1974.

      James J. Reidy and Richard H. Lucy, both of Chicago (William J. Harte and Kevin M. Forde, of counsel), for appellant.
    Francis J. Mullen and John J. Devine, of Chicago Transit Authority, and John J. O’Toole, all of Chicago, for appellees.

      Ernestine Marcano testified on her own behalf.

   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff appeals from the entry of judgment in favor of defendants Joseph Harrell and the Chicago Transit Authority (C.T.A.) and the denial of her post-trial motion to vacate the judgment and enter judgment for plaintiff or, in the alternative, to grant plaintiff a new trial. Her action seeks to recover damages for personal injuries sustained when she alighted from a C.T.A. bus driven by Harrell. On appeal she contends: (1) the judgment is contrary to the overwhelming weight of the evidence or, alternatively, is against the manifest weight of the evidence; and (2) the trial court’s failure to require defendants to produce a signed statement of a witness became prejudicial error when defendants were permitted to use that statement in cross-examination of the witness and were allowed to introduce the statement into evidence.

The following evidence was adduced at trial.

She was a passenger on a bus owned by defendant C.T.A. and operated by defendant Harrell on April 2, 1967. There were approximately 10 to 12 other passengers. She pulled the cord buzzer indicating to Harrell that she wished to get off the bus at 70th Street and Wentworth Avenue. The bus stopped at the corner, a few feet before 70th Street and not too close to the west side of Wentworth Avenue. She exited from the front door. She was stepping down the steps holding the railing and had just placed her right foot onto the street when the doors closed trapping her left arm and leg. She screamed and as the bus pulled away, hopped alongside the bus until her body came free of the door and she fell into the street underneath the bus. The bus stopped and some people appéared who carried her into a nearby church. A police squadrol took her to the emergency room at St. Bernard Hospital where her left arm was placed in a plaster cast. Due to difficulties in the healing of this arm, she was not discharged from medical treatment at the hospital until June 30, 1967.

David E. Canada, Jr., for the plaintiff.

Trucksy Richardson for plaintiff.

On cross-examination plaintiff testified that she did not remember speaking to the bus driver after the accident. Only one witness, Mr. Canada, gave her his name the day she was hurt. He also visited her at home when she was released from the hospital and they discussed the accident. She does not know anyone named Richardson.

On the date in question he was standing almost at the bus stop on the comer of 70th Street and Wentworth Avenue talking to Trucksy Richardson when a C.T.A. bus came to a halt and plaintiff alighted from the front door. No other passengers exited at tire stop. She had one foot on the ground when the bus closed its doors on her arm and started into traffic. He did not recall which arm was caught in the door. She attempted to move along with the bus before falling. The right front wheel ran over part of her left arm. She was dragged approximately 10 feet before he could come to her aid. When he reached her, she was lying on the street between the front and rear door with her head and left arm underneath the bus. The witness and another person assisted plaintiff into a nearby church while Richardson held the church door open. Two Chicago police officers arrived to take plaintiff to the hospital. He did not give them his name although he did tell one officer that he had witnessed the accident. He followed the squadrol to the hospital in his car and gave plaintiff’s daughter his name. He did not know plaintiff prior to this accident.

On cross-examination, Canada admitted to having been convicted of numerous felonies. He also admitted to having discussed the accident when he visited plaintiff at her home ZVz to 3 years after the accident and to having seen her on the street on two other occasions.

On the date in question he was standing outside the Kindreck Memorial Baptist Church at 70th Street and Wentworth Avenue with David Canada and Alton Harvey. A C.T.A. bus came to a stop in front of the church. Plaintiff was stepping out the front door of the bus when the door closed on her foot. He does not remember which foot was trapped. The bus headed south dragging plaintiff along the street with it for a few feet before halting again. He turned and walked into the church going downstairs into the basement. He did not talk to anyone that day regarding the accident. He had never met plaintiff prior to this accident.

Alton Harvey for plaintiff.

William McNabola for plaintiff.

Melvin Clausen for defendant.

Joseph Harrell, testified on his own behalf.

On cross-examination he admitted that the first time he mentioned that he had witnessed the accident was 2 months prior to this trial when he talked to plaintiff’s attorney.

On the day in question he was standing with Canada and Richardson when a C.T.A. bus came to a stop approximately 15 feet from the entrance of the church. Plaintiff was getting off the bus using the front entrance located behind the right front wheel. She was holding onto the guard rail with her left hand, and had her right foot on the ground with her left foot on the bottom step when the door closed on her left arm. He ran to the bus and started pounding on the rear door as the bus moved down the street dragging plaintiff about 15 feet before stopping. He went over to where she was lying between the front and rear doors of the bus and picked her up off the ground. He further testified that plaintiff told the bus driver, in response to his question, that he closed the door on her arm. The witness helped plaintiff into the church where they waited until two police officers arrived to take her to the hospital. He accompanied her in the squadrol. Neither the police nor the bus driver asked him if he had witnessed the accident. He did not know plaintiff prior to this accident.

On cross-examination he admitted telling a C.T.A. investigator the Saturday previous to the trial that the bus driver was courteous, but did not ask plaintiff what had happened. He denied telling the investigator that he did not remember the two other men who were standing outside the church with him at the time of the accident.

On April 2, 1967, he was the medical doctor in the emergency room at St. Bernard’s Hospital when plaintiff arrived. She told him that she was caught in the door of a C.T.A. bus and dragged.

He is a C.T.A. investigator. He took a statement from Alton Harvey on the Saturday prior to trial. Harvey stated to him at that time “There were two other men standing by me when this [accident] happened, but now I can’t remember their names.” The statement was received into evidence.

On the date in question he was operating a C.T.A. bus. At approximately 2 P.M. he pulled to within 10 to 12 inches from the curb and just behind the crosswalk at the northwest corner of 70th Street and Went-worth Avenue to allow plaintiff to alight. The traffic was light and the street was clean and dry. He directed his full attention to plaintiff until she had stepped down the front steps and cleared the front doors by three or four feet. He did not see her trip and she did not appear to be in a hurry. He closed the doors and proceeded to accelerate the bus in a southerly direction until he heard a scream and received an indication that something had happened outside the bus. He stopped the bus about 3 feet south of where plaintiff had alighted and stepped out of the bus; “She indicated that I did something.” She told him that she had tripped on the heel of her shoe. He handed out witness cards to people on the bus, but does not remember passing out any cards to anyone else. No one outside the bus wanted to get involved as a witness.

James B. Ryan for defendant.

He is a Chicago police officer. On the date in question he and another police officer responded to an accident at a store front church in the vicinity of 70th Street and Wentworth Avenue. In response to his question, plaintiff stated that she had tripped stepping down off the bus. She did not state that her arm had been caught in the doors of the bus, or that she had been dragged down the street by the bus or that she had faHen underneath its wheels. He asked for witnesses to the accident, but no one came forward. The bus driver however stated that plaintiff tripped stepping down off the bus. Two or three men accompanied plaintiff to the hospital, but he did not ask their names.

OPINION

Plaintiff contends that the judgment is against the manifest weight of the evidence. It is argued that her testimony corroborated by three impartial eyewitnesses requires this court at the very minimum to grant her a new trial.

In close cases where findings of fact must necessarily be dictated to a large extent by impressions of credibility received by the trial judge from his observation of the witnesses, it is particularly true that an appellate court may not disturb the findings of the trial court unless they are manifestly against the weight of the evidence. (Hunter v. DeMay, 124 Ill.App.2d 429, 259 N.E.2d 291.) In order that the judgment be against the manifest weight of the evidence, it must appear that conclusions opposite to that reached are clearly evident. (See Bouillon v. Harry Gill Co., 15 Ill.App.3d 45, 301 N.E.2d 627.) Moreover, where the conclusion of the trial court is based upon substantial evidence, it may not be disregarded merely because the reviewing court might disagree with it or, as triers of fact, have reached a different conclusion based on the conflicting evidence. Rector v. Robinson, 36 Ill.App.2d 272, 183 N.E.2d 22.

After reviewing the record we are convinced that the judgment is not against the manifest weight of the evidence and is supported by substantial evidence. Harrell testified that he gave plaintiff his full attention as she descended the front steps of the bus. When she had cleared the doors by 3 to 4 feet, he closed the doors and proceeded onward until he heai'd a scream. He stopped the bus about three feet south and alighted. Plaintiff at that time told him she had tripped on the heel of her shoe. Police Officer Ryan testified that plaintiff told him that she tripped while stepping off the bus. She did not tell him that her arm had been caught in the doors of the bus. Both Harrell and Ryan further testified that they asked for witnesses, but no one stepped forward. The testimony of these two witnesses contradicts plaintiff and her witnesses who testified that she was caught in the door of the bus, that she did not speak to Harrell and that there were witnesses who indicated that they had observed file accident. Furthermore, the testimony of plaintiff and her three eyewitnesses was marked with lapses in memory and inconsistencies. Each differed on what part of her anatomy was trapped in the door of the bus. Finally, it must be noted that while the number of witnesses favoring plaintiff exceeded those for defendant, it does not establish that the verdict for defendant is erroneous. (Battershell v. Bowman Dairy Co., 37 Ill.App.2d 193, 185 N.E.2d 340.) We conclude that the evidence is merely conflicting and therefore the judgment is not against the manifest weight of the evidence and would certainly not support a judgment for plaintiff.

Plaintiff alternatively contends that the trial court’s failure to require defendants to produce a signed statement of Alton Harvey became reversible error when defendants were permitted to use the statement in cross-examination of Harvey and were allowed to introduce the statement into evidence. Harvey was called as a witness on behalf of plaintiff. Prior to placing him on the witness stand, plaintiff’s attorney requested a copy of the witness’s statement given to the Chicago Transit Authority investigator on the Saturday prior to trial. This motion was denied. The statement was used to cross-examine Harvey and was then introduced into evidence.

In Monier v. Chamberlain, 35 Ill.2d 351, 221 N.E.2d 410, the Supreme Court adopted the policy of permitting parties a full disclosure by granting broad discovery orders so as to expedite the ultimate disposition of their claims. In Carlson v. General Motors Corp., 9 Ill.App.3d 606, 619-620, 289 N.E.2d 439, we held that the trial court has broad discretion in imposing sanctions where there is a non-compliance with discovery rules. “Factors to be considered are the surprise of the testimony to the opposing party 2***6 ° the prejudicial effect of the testimony, the diligence of the opposing party in seeking discovery, timely objection to the testimony and good faith of the party calling the witness * *

While timely objection was made by plaintiffs counsel here the circumstances shown by this record do not indicate any surprise or prejudice that would require our granting plaintiff a new trial. It must be recognized that Harvey was plaintiff’s eyewitness. The statements that came as a surprise to plaintiffs counsel could have been alleviated by a discovery order prior to trial since counsel had full access to the witness. Moreover, the prejudicial effect of the statements is at best tenuous. The impeachment of Harvey was on collateral matters that concerned whether he could remember the names of the other eyewitnesses and whether the bus driver had, in fact, asked plaintiff what had happened. The record does not show that tire trial judge viewed these statements as serious inconsistencies that affected the witness’s credibility with respect to having witnessed the accident. We, therefore, are unable to agree that such failure to produce the statement requires our granting plaintiff a new trial.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

DRUCKER and BARRETT, JJ., concur.