author: Mr. JUSTICE STOUDER

text:
    The People of the State of Illinois, Respondent-Appellee, v. Jack Eugene Lampson, Petitioner-Appellant.
    (No. 74-36;
    Third District
    November 12, 1974.

      Rehearing denied January 14, 1975.

      Michael Warner, of Braud, Warner & Neppl, of Rock Island, for appeHant.
    David DeDoncker, State’s Attorney, of Rock Island (F. Stewart Merdian, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

On July 7, 1969, Petitioner, Jack Eugene Lampson, was charged with burglary in the circuit court of Rock Island County and was found guilty of such offense by the jury. On his appeal to this court his conviction was reversed and he was granted a new trial. (People v. Lampson, 129 Ill.App.2d 72, 262 N.E.2d 601.) After his retrial petitioner was again found guilty of burglary by the jury and upon appeal to this court his conviction and sentence were affirmed in People v. Lampson, 6 Ill.App.3d 1099, 286 N.E.2d 358 (petition for leave to appeal denied). The petitioner then filed a petition seeking post-conviction relief. After a hearing the petition was dismissed and it is from the judgment dismissing the petition that this appeal follows.

On July 13, 1973, an amended petition for post-conviction relief was filed by the petitioner. Counsel was appointed to represent petitioner other than his former trial counsel. Even though no responsive pleading was filed by the People in opposition to the petition, a trial court apparently believed a hearing was appropriate, and one was held. At the hearing petitioner and his former trial counsel testified. They were not cross-examined, and no opposing evidence was presented by the People. After the hearing had concluded the trial court dismissed the petition for the reason that the petitioner was foreclosed from presenting such issues under the doctrine of res judicata as evidenced by the affirmance of petitioner’s conviction by the appeHate court. At this juncture we should note that the failure of the People to file any responsive pleading leaves some doubt concerning the posture of the case from the People’s point of view, and this procedure is not recommended.

The general theory of the amended petition and the supporting testimony is that petitioner was deprived of his constitutional rights of confrontation or presence at all stages of his trial because of two incidents which occurred. The first relates to a newspaper article which appeared in Rock Island on the evening before the second day of trial, which article referred to petitioner’s prior conviction and the reversal of such conviction by the appeHate court. On the second morning of the trial petitioner’s counsel together with an assistant state’s attorney proceeded to the chambers of thé trial judge during which a discussion took place regarding the article in the newspaper and what procedure could or should be employed. It also appears from the attorney’s testimony given at the post-conviction hearing that an oral motion for a mistrial might have been made during the discussion and denied by the trial judge. In any event, the petitioner was not present during the discussion although after it was concluded he was informed about it in the hallway before the trial recommenced, and when the trial did commence on the second morning, the individual jurors were questioned about the newspaper article and a subsequent motion for mistrial was denied;. In this connection it should be noted that the alleged error regarding the article, its possible prejudicial effect on the jurors and the results of the voir dire were all considered by this court on petitioner’s former appeal. No assignment of error was made on the prior appeal concerning the discussions which took place in the chambers outside the presence of the. petitioner. The second incident generally referred to in the petition and in the testimony of the petitioner and his trial counsel relates to discussions which took place between the trial counsel, assistant state’s attorney and the trial judge regarding plea bargaining and possible provisions of such a bargain if petitioner pleaded guilty. These discussions likewise took place outside the presence of the petitioner, although, according to petitioner, he was aware that such negotiations were going on and he was advised of their progress. No agreement was ever reached, and petitioner’s guilt was ultimately determined by the jury.

On this appeal the petitioner urges that the doctrine of res judicata does not bar consideration of the issues raised on his post-conviction petition; but, on the contrary, such doctrine requires that such issues be considered. Also petitioner argues that his absence from the discussions which took place was violative of his constitutional rights to be present at all stages of his trial and to confront the witnesses against him.

It is well settled that where a person convicted of a crime has taken an appeal from the judgment of conviction on a complete record, the judgment of the reviewing comt is res judicata as to all issues actually decided by the court, and all issues which could have been presented to the reviewing court, if not presented, are waived. (People v. Armes, 37 Ill.2d 457, 227 N.E.2d 745.) So far as the application of the foregoing rule to the instant case is concerned, it appears the two issues raised by petitioner were not considered and decided in petitioner’s previous appeal. The question remains whether the failure to present such issues in the previous appeal constitutes a waiver thereof.

Petitioner urges that because the discussions of which he complains took place outside his presence and were not a part of the record, the errors concerning such discussions could not have been considered in his prior appeal, and therefore the doctrine of waiver is not applicable. We do not agree.

In considering waiver it is necessary to note that it may be relevant in two different aspects. First, a party may have waived his right to have an alleged error considered on appeal because of his failure to either urge the error in the trial court or adequately preserve the basis for the alleged error. Secondly, where the error is urged in the trial court and an appropriate basis exists for its consideration on appeal, nevertheless, if the issue is not raised on appeal, consideration of the alleged error is precluded in any collateral attack on the conviction.

In the instant case the testimony of the witnesses is unequivocal in indicating that both the petitioner and his trial counsel were completely aware of what was transpiring and had complete knowledge of the incidents to which they testified at the time they occurred. Nevertheless, no claim was made that the procedure was erroneous or that it in any way interfered with a fair trial for petitioner. Thus, initially, we have a procedure, in which both petitioner and his trial counsel participated without objection or reservation, which is now claimed improper. Even if the events had been included in the record the petitioner and his trial counsel, by failing to object during trial, neglected to take that action which would have permitted the objections to be considered on appeal.

In People v. Smith, 42 Ill.2d 479, 248 N.E.2d 68, the court observed, “The responsibility for the proper preservation of the record of the proceedings before the trial court rests upon the defendant. (People v. Nastasio, 30 Ill.2d 51, 195 N.E.2d 144; People v. Walden, 21 Ill.2d 164, 171 N.E.2d 650; People v. Clark, 9 Ill.2d 46, 137 N.E.2d 54.) The defendant’s attorney made no request that the arguments be taken down. Nor was the defendant prejudiced by the failure to report the argument in this case, since the common law and the rules of this court make adequate provision for the reconstruction of the proceedings at trial. See Ill. Rev. Stat. 1967, chap. 110A, pars. 323(c), 612(c).” Not only is a defendant required to make timely objection to what he may consider an erroneous procedure, it is also his duty to make such record as will enable the issue to be considered on appeal. The failure of defense counsel to provide an adequate record upon which the alleged errors could be based is an additional reason for concluding that the prior appeal is dispositive of the issues now raised.

In People v. Frank, 48 Ill.2d 500, 272 N.E.2d 25, the court, in discussing the situation where a defendant’s appellate counsel failed to raise an issue on appeal, concluded that such failure was one appropriately considered in relation to a charge that such appellate counsel was incompetent. We think the same rule is applicable where trial counsel fails to interpose a timely objection, or when neither trial counsel nor appellate counsel preserve or secure a sufficient record which would enable the matter to be considered on direct review. As applied to the instant case no claim is made by petitioner that either his former trial counsel or appellate counsel were incompetent, and even if such claim were made, we do not believe it could be sustained. Consequently, we believe the petitioner waived consideration of the issues not complained of in his former appeal, and they cannot now be urged in a post-conviction proceeding.

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

Judgment affirmed.

ALLOY and DIXON, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE CRAVEN.

license: Public Domain

text:
    Gloria Dauten, Plaintiff-Appellee, v. Kathleen Bailey, Defendant-Appellant.
    (No. 12570;
    Fourth District
    December 5, 1974.

      Rehearing denied January 21,1975.

    Waaler, Evans & Gordon, of Champaign (Robert J. Waaler, of counsel), for appellant. .
    John T. Phipps, of Champaign, for appellee.
   Opinion by

Mr. JUSTICE CRAVEN.


author: Mr. JUSTICE STAMOS

text:
    Allstate Insurance Company, Plaintiff-Appellant, Cross-Appellee, John Horn, Defendant-Appellee, Cross-Appellant.
    (Nos. 58803, 59489 cons.;
    First District (2nd Division)
    November 26, 1974.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (John L. Kirkland, D. Kendall Griffith, and Stanley J. Davison, of counsel), for appellant.
    Herbert M. Berman and Daniel N. Kadjan, both of Chicago (Arnold and Kadjan, of counsel), for appellee.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Allstate Insurance Company (Allstate) appeals from an order of the circuit court of Cook County which dismissed, on the merits, Allstate’s action for declaratory judgment and confirmed an arbitration award in favor of John Horn. Horn has cross-appealed and seeks, in the event that the judgment of the circuit court is either reversed or remanded, a reversal of an earlier order denying defendant’s motion for summary judgment.

The facts are virtually undisputed. Allstate issued Christ Lindbom an automobile liability policy which included uninsured motorist coverage in the amount of $10,000. The policy provided, inter alia:

“Allstate will pay all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such automobile.
# e e
The ‘insured’ means:
1. The named insured and his relatives;
2. Any other person occupying an insured automobile; * *

The policy defined “occupying” as “in or upon, or entering into or alighting from” the insured vehicle.

Shortly after midnight on May 31, 1969, the defendant, John Horn, was riding in the Lindbom vehicle which was being driven by Bruce Lindbom, a relative of the named insured. Lindbom parked the car on the northeast side of Clyboum Avenue, which runs northwest to southeast and is six lanes wide including a lane in each direction for parked cars. Both parties exited the car, walked across to the south side of Clyboum and entered a restaurant. Subsequently, the parties exited the restaurant and were preparing to cross Clyboum to the Lindbom vehicle. Upon stepping from the sidewalk Lindbom and defendant walked between two parked cars on the south side of the street. At that point an automobile operated by an uninsured motorist was proceeding northwest on the north side of the street. The driver crossed the centerline, entered the southeast bound lanes and struck Lindbom and defendant while they were standing 2 feet from the parked cars in the southbound lane closest to the parked vehicles. At the time the parties v/ere injured they were at a point approximately 24 feet from the Lindbom vehicle.

On June 5, 1969, plaintiff received a notice of attorney’s lien, indicating that a certain law firm was representing Bruce Lindbom in a claim against plaintiff for personal injuries under the above quoted uninsured motorist provision. In reply to this lien plaintiff sent a form letter to Lindbom informing him that the claim could not be identified and that AHstate needed the policyholder’s name and address, the policy number, and the date and location of the accident. Through a telephone conversation with Lindbom, plaintiff learned that defendant Horn had been with Lindbom at the time of the accident. On June 23, 1989, before any investigation of the occurrence had been conducted, plaintiff sent defendant a form letter which is customarily sent to parties reported to be with an insured at the time of an accident. The letter requested defendant to fill out the. enclosed “Notice of Injury-Proof of Loss” form, and to have his doctor complete certain medical reports. The letter further stated that when Allstate received the requested reports and final medical bills, defendant’s claim would be processed for payment. Allstate did not receive any response to the letter.

In December of 1970, Lindbom’s claim was adjusted and settled. The first document plaintiff received indicating that defendant was making an uninsured motorist claim was a copy of a “Demand for Arbitration” which had been filed with the American Arbitration Association (hereinafter Association). A copy of the demand was received by plaintiff on February 1, 1971, a year and 8 months after plaintiff’s letter to defendant. Plaintiff did not have an open file on the claim at this time, and upon receipt of the demand, Allstate forwarded the notice to legal counsel.

On March 2, 1971, the arbitration hearing was set for April 21, 1971. On March 8, 1971, plaintiff’s attorneys sent a letter to defendant’s attorneys stating that Allstate had received the demand for arbitration and requested that defendant appear in counsel’s office on April 29, 1971, for the purpose of taking his statement pursuant to a condition of the uninsured motorist endorsement. The letter further stated:

“In addition, we wish to inform you that a coverage question exists on this file. We wiH be unable to proceed with an arbitration hearing until same is resolved.”

A copy of this letter was sent to the Association. On March 11, 1971, the Association wrote a letter to plaintiff’s counsel acknowledging receipt of the above letter. The Association then sent a copy of this letter to defendant’s attorneys and requested that the claimant, John Horn, file a reply to Allstate’s assertion that a coverage question existed. The claimant did not reply and on March 23, 1971, the Association sent his counsel another letter requesting a reply.

On April 9, 1971, defendant’s counsel telephoned the Association and advised that he would not agree to a continuance of the April 21 date. The Association then sent a letter to counsel for both parties stating that if Allstate did not file a declaratory judgment action before the April 21 date, and if it still requested a continuance on the hearing date, it would be necessary to get the arbitrator’s ruling on whether or not the hearing should proceed.

On April 14, 1971, the arbitrator requested a continuance of the hearing due to trial proceedings which would produce a conflict for the arbitrator. On April 20, 1971, it was determined that the first date upon which the arbitrator would be available would be May 20, 1971, whereupon the hearing was continued until that date.

On May 14, 1971, plaintiff’s counsel took the statement of John Horn, and on May 19, 1971, the arbitration hearing was reset pursuant to plaintiff’s request for July 8, 1971. On June 25, 1971, the Association received a letter from plaintiff’s counsel requesting a continuance because he would be out of town. Defendant’s attorney agreed to the continuance and suggested the date of July 28, 1971. On July 7, 1971, the hearing was reset for August 16, 1971, because the arbitrator would not be available on July 28. The August 16 date was marked “final.”

On August 13, 1971, a Friday, plaintiff filed its complaint for declaratory judgment alleging that the defendant was walking as a pedestrian at the time he was struck by the uninsured motorist, and therefore, was not entitled to uninsured-motorist coverage because he was not then an “occupant” of the insured vehicle as defined by the policy. Allstate requested that the court find that the defendant was not entitled to any benefits of the uninsured-motorist coverage and that the court immediately enter an order enjoining defendant from proceeding before the Association until such time as the coverage question would be determined.

On August 16, 1971, the following Monday and the date on which the arbitration hearing was to be held, plaintiff filed a motion in the circuit court asking that all proceedings before the arbitrator be stayed pending a hearing before the court on the coverage issue. The motion was denied and that afternoon the arbitration hearing was held. Counsel for plaintiff appeared at the hearing, stated that Allstate would stand on its position that there was no coverage, and refused to participate in the arbitration proceedings. On August 18, 1971, the arbitrator rendered an award of $10,000 to defendant.

On November 13, 1971, plaintiff filed an amendment to its complaint for declaratory judgment seeking the additional relief that the award entered by the arbitrator on August 18, 1971, be vacated and set aside. On December 1, 1971, defendant filed a “Petition to Confirm Award of Arbitrator” and also filed an answer to the complaint for declaratory judgment in which he alleged that defendant was an “occupant” of the insured vehicle, and, as an affirmative defense, alleged that plaintiff was estopped to assert any coverage defenses due to its dilatory tactics in denying the claim. Based upon its finding that plaintiff was estopped to assert its policy defense, the trial court dismissed the declaratory judgment action on the merits and confirmed the award of the arbitrator.

Plaintiff initially contends that the trial court erred in holding that plaintiff was estopped from asserting its coverage defense. We must agree. Estoppel has been defined as follows:

“‘Estoppel * * * arises whenever one by his conduct, affirmative or negative, intentionally or through culpable negligence, induces another to believe and have confidence in certain material facts, and the latter having the right to do so, relies and acts thereon, and is as a reasonable and inevitable consequence, misled, to his injury.’ ” (Kelly v. Terrill, 132 Ill.App.2d 238, 240-41, 268 N.E.2d 885.)

It is defendant’s theory that estoppel applies to the present cause in that the letter of June 23, 1969, sent by plaintiff to defendant induced defendant to believe that plaintiff would pay his claim; and that plaintiff’s delay in not filing its declaratory judgment until more than 2 years after the accident prevented defendant from pursuing his remedies against the uninsured motorist. Since defendant claimed that estoppel applied, he had the burden of proving it clearly, concisely, and unequivocally. Jennings v. Bituminous Casualty Corp., 47 Ill.App.2d 243, 197 N.E.2d 513.

Although defendant’s argument emphasizes plaintiffs conduct subsequent to February 1, 1971 (the date plaintiff received the “Demand for Arbitration”), we think the premier issue is the interpretation of, and the effect to be given, the letter of June 23, 1969. For if the letter sent by plaintiff provides no basis for the estoppel, we are of the opinion that the interim delay in the processing of the claim (June 23, 1969, to February 1, 1971) must be attributable to defendant. The letter, in relevant part, stated:

‘We have a report that you were injured in an accident on the date shown and wish to file a claim for your medical expense.
So that we can process your claim promptly, would you please do the following:
# # #
Just as soon as we have the reports and final medical bills, we will process your claim for payment.”

The record reveals that the first time plaintiff learned that defendant had been involved in the occurrence was through a telephone call with Lindbom, plaintiff’s insured; that shortly thereafter, plaintiff sent defendant the above correspondence, a form letter which is customarily sent to parties involved in an accident. The requested forms were not filled out, no medical bills were forwarded, no response to the letter was received, and nothing further was heard from defendant until 18 months later when the demand for arbitration was received. A party claiming the benefit of estoppel must establish that the representation made by the party estopped not only was intended to induce the other party to act, but must have reasonably induced the party to act. (Sabath v. Morris Handler Co., 102 Ill.App.2d 218, 243 N.E.2d 723.) Although the phraseology of the form letter — “we will process your claim for payment” — may have been more artfully drafted, a fair and objective reading of the letter does not suggest that plaintiff made an unqualified representation to pay any claim that defendant may have asserted. It did represent that plaintiff would “process” the claim upon receipt of certain information. In this context, the word “process” is not limited merely to those administrative activities in issuing payment, but fairly includes a determination of liability to pay. It is significant to note that the letter was dispatched without solicitation or claim made by defendant and at a time when no investigation of the incident had been initiated. As we construe the form letter, and the circumstances of its issuance, the representations therein were not of such nature to preclude plaintiff from asserting a coverage defense. In any event, the representation to “process the claim for payment” was subject to certain conditions precedent, and defendant, having failed to fulfill those conditions, cannot predicate its estoppel argument upon the terms of the form letter.

Furthermore, defendant, not having furnished the requisite information, cannot now be heard to complain of unreasonable delay and dilatory tactics with reference to the period prior to February 1, 1971. In fact, since defendant had not notified plaintiff that he desired to make a claim within this 18-month period, the natural implication of defendant’s failure to respond is that he did not desire to make any claims for medical expenses arising from the incident. Under these circumstances, we fail to see how plaintiff had a duty to investigate the accident and promptly assert its nonliability until such time as defendant communicated its desire to make a claim.

The incident in question occurred on May 31, 1969, and under the statute of limitations applicable to personal injuries, defendant had until May 31, 1971, to file suit against the uninsured tortfeasor. Defendant argues that, because of plaintiff’s dilatory conduct in denying liability, defendant was deprived of pursuing any remedies which he may have had against the tortfeasor. It is, as defendant contends, the law that an insured should have a right to know with reasonable promptness the attitude of the insurer, so that he might take such actions as would save himself from loss and damage. (Allstate Insurance Co. v. Keller, 17 Ill.App.2d 44, 149 N.E.2d 482.) However, under the circumstances of the present case, we judge that plaintiff did not fail to promptly assert its non-liability. Although any remedy defendant may have had against the third-party tortfeasor would be barred after May 31, 1971, plaintiff had not received any communication from defendant until February 1, 1971. For the reasons stated earlier, the reasonableness of plaintiff’s conduct in disclaiming liability must be judged within this 4-month period. It is undisputed that on March 8, 1971, plaintiff informed defendant that a coverage question existed and that arbitration would not proceed until the coverage question was resolved. Thus, at this point, defendant still had almost 3 months in which to commence suit against the third-party tortfeasor. It is also at this point that a controversy regarding the coverage issue first arose. Moreover, plaintiff was not able to obtain defendant’s statement, pursuant to a condition in the uninsured motorist endorsement, until May 14, 1971. It is true that plaintiff did not file its declaratory judgment until after the Statute of Limitations had run, but given the relatively short period of time in which plaintiff had to act, and the fact that the initial delay of more than 18 months was occasioned by defendant, we think plaintiff’s conduct in disclaiming liability was reasonably prompt under the circumstances. Accordingly, the trial court erred in holding that plaintiff’s conduct constituted a waiver by estoppel of its right to assert the coverage defense.

Having resolved the issue of estoppel against plaintiff, the trial court did not decide the issue of whether defendant was insured under the policy. All the evidence on the coverage issue was presented and there is no dispute as to the essential facts. The policy provided that any person “occupying” the insured vehicle was an “insured” under the uninsured motorist provision and further defined “occupying” as “in or upon, or entering into or alighting from” the insured vehicle. It is undisputed that defendant was struck while preparing to cross four lanes of traffic on his way to the Lindbom vehicle, and that defendant was at least 24 feet from the vehicle at the time of impact. It is plaintiff’s position that based upon these facts defendant was not, as a matter of law, entering into the vehicle and therefore was not an insured under the policy. Defendant does not argue the issue on appeal as he should pursuant to Supreme Court Rule 341(f), and it is sufficient to state that one who is 24 feet from a vehicle is not “entering into” it, and therefore not “occupying” it, within the meaning of the policy. New Amsterdam Casualty Co. v. Fromer (D.C. App. 1950), 75 A.2d 645; Jarvis v. Pennsylvania Threshermen & Farmers’ Mutual Casualty Insurance Co. (1956), 244 N.C. 691, 94 S.E.2d 843; Ross v. Protective Indemnity Co. (1948), 135 Conn. 150, 62 A.2d 340.

In its cross-appeal, defendant argues that the trial court erred in denying its motion for summary judgment against plaintiff’s amended complaint for declaratory judgment. In its motion for summary judgment, defendant argued that the circuit court’s denial of plaintiff’s motion for a temporary injunction operated as res judicata as to all issues of coverage.

Plaintiff filed its motion for a temporary injunction 3 days after it filed its complaint for declaratory judgment. In its motion, plaintiff sought an order enjoining defendant from proceeding at the American Arbitration Association until the court decided the merits of plaintiff’s complaint for declaratory judgment. The trial court denied the motion on the sole and specific reason that since the declaratory judgment had been assigned to a different judge, who was not sitting that day, the motion should be decided by the latter upon his return. On the same day the arbitration hearing was held and the Arbitrator rendered an award of $10,000 to defendant. Plaintiff then filed an amendment to its complaint for declaratory judgment seeking the additional relief that the award entered by the Arbitrator be vacated. Defendant then filed its motion for summary judgment, and under the authority of Liberty Mutual Insurance Co. v. Duray, 5 Ill.App.3d 187, 283 N.E.2d 58, argued that the denial of plaintiff’s motion for a temporary injunction operated as res judicata as to aU issues of coverage.

In the Liberty Mutual case, the insured filed a “Demand for Arbitration” to which the insurer objected. The objection was denied by the American Arbitration Association. The insurer then filed a petition to stay arbitration in the circuit court pursuant to section 2(b) of the Uniform Arbitration Act (Ill. Rev. Stat. 1969, ch. 10, par. 102(b)), which provides for the substantive disposition of the coverage issue. The petition raised the coverage issue involved, but apparently the issue was not actually litigated. The circuit court denied the petition. Four and one-half months later, the insurer separately filed a complaint for declaratory judgment requesting that the court consider and adjudicate the question of coverage. This action was dismissed on the ground that the denial of the petition was res judicata of the issues raised.

The present case is readily distinguishable from the Liberty Mutual decision. Unlike Liberty Mutual, in which two separate actions were brought, the motion for a temporary injunction here was clearly ancillary to the main action for declaratory and injunctive relief. The motion did not seek a hearing on the coverage issue, but merely asked that the arbitration proceeding be stayed until the coverage issue, as raised in the complaint for declaratory judgment, was decided. In any event, the grant or denial of a preliminary injunction is not an adjudication of the ultimate rights in controversy, and in subsequent proceedings is not conclusive on either the court or the parties to the action. (Consumers Digest, Inc. v. Consumer Magazine, Inc., 92 Ill.App.2d 54, 235 N.E.2d 421; Santowsky v. McKey, 249 F. 51.) Therefore, the trial court correctly held that the denial of the motion was not a former adjudication of the matters raised in the complaint for declaratory judgment.

Finally, defendant contends that the award of the Arbitrator is final and binding. We disagree. Section 12(5) of the Uniform Arbitration Act (Ill. Rev. Stat. 1971, ch. 10, par. 112(5)) provides that the circuit court may vacate an award upon a showing that there was no arbitration agreement. Under Illinois law, coverage disputes are not included in arbitration provisions of automobile liability policies relating to resolution of disputes arising under an uninsured motorist provision, and arbitration is limited to a determination of issues of liability of the uninsured third-party tortfeasor and damages to the insured. (Flood v. Country Mutual Insurance Co., 41 Ill.2d 91, 242 N.E.2d 149; Farmers Insurance Group v. Harris, 4 Ill.App.3d 372, 279 N.E.2d 789.) Consequently, the arbitrator had no authority to decide the coverage question and its award is properly vacatable.

Pursuant to Supreme Court Rule 366 (Ill. Rev. Stat. 1971, ch. 110A, par. 366), this court may, in its discretion, enter any order, and grant any relief, which the case may require. Where a cause is tried by a court without a jury, and where the parties have had the opportunity to present all their evidence, as in the instant case, no useful purpose is served by remanding the matter to the trial court for a new trial. (Vallarta v. Lee Optical of Missouri, Inc., 12 Ill.App.3d 112, 298 N.E.2d 212.) The facts relating to the issue of coverage are undisputed and we have determined, as a matter of law, that defendant was not an insured within the meaning of the policy. Therefore, the order of the circuit court denying defendant’s motion for summary judgment is affirmed; the judgment of the circuit court against plaintiff on its complaint for declaratory judgment is reversed, and the cause is remanded with directions to enter judgment for plaintiff.

Affirmed in part; reversed and remanded in part with directions to enter judgment for plaintiff.

HAYES, P. J., and LEIGHTON, J., concur.

       There was no question that Bruce Lindbom was insured under the policy. As a relative of the named insured he was covered by the uninsured motorist provision regardless of whether he was an occupant of the vehicle.

       Defendant’s motion sought summary judgment, or in the alternative, requested leave to add the affirmative defense of res judicata to its answer. The allegations of the motion, and the hearing thereon, were limited strictly to the legal issue of former adjudication. There was no dispute as to any material fact, and consequently, the motion was more in the nature of a section 48 motion (see Ill. Rev. Stat. 1971, ch. 110, par. 48(d)) filed in response to an amended complaint. The character of a pleading is determined more from its content than by its label (Dross v. Farrell-Birmingham Company, 51 Ill.App.2d 192, 200 N.E.2d 912), and although the trial court denied defendant’s “motion for summary judgment,” our review of its denial is not precluded by the rule that the denial of summary judgment is not reviewable because it is superseded by the subsequent trial. See Home Indemnity Co. v. Reynolds & Co., 38 Ill.App.2d 358, 187 N.E.2d 274.


author: Mr. JUSTICE LEIGHTON

text:
      In re Isaac Williams, Jr., a Minor.—(The People of the State of Illinois, Petitioner-Appellee, v. Isaac Williams, Jr., Respondent-Appellant.)
    (No. 58766;
    First District (2nd Division)
    November 26, 1974.

      Paul Bradley and James A. Streicker, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This is an appeal from an order entered in a proceeding to adjudicate a wardship under the Juvenile Court Act. A petition filed in accordance with the statute named appellant Isaac Williams, Jr., a respondent and alleged in two counts that he, a minor, was a delinquent because he had committed rape and armed robbery. At an adjudicatory hearing, the court dismissed the count that charged armed robbery but found respondent delinquent under the count that charged the offense of rape. It ordered him committed to the Department of Corrections until he attains the age of 21, or he is sooner discharged by order of the court. The issue presented is whether the evidence proved beyond a reasonable doubt that respondent was guilty of rape. The following are the facts from which this issue arises.

On December 23, 1972, the complaining witness, a woman who was then a State of Michigan resident, entered an elevator in a building at 4950 South State Street in Chicago on her way to visit a friend. She was followed by two youths she had never seen before. She pushed a button in order to stop on the 12th floor; but as the elevator went up, the youths stopped it and one of them pulled out a gun, saying to the woman, “this is a holdup.” They took $25 in cash from her. One of them felt in her brassiere for more money. Then, one youth “unzipped my pants and 006 penetrated his penis within my vagina.” This youth left the elevator and the other one “penetrated my vagina # A short time later, there was a struggle, during which the woman screamed and was able to jump from the elevator and escape. She was met by her friend who saw her and observed that she was disheveled, her blouse was wrinkled, the front parts of her pants were down, she was nervous and crying. At the hearing of the delinquency petition, the State caHed the victim of the alleged crimes, the friend and a policeman. The complaining woman was the only witness that identified respondent as one of the two youths who robbed her; and as the second who, against her will, had sexual intercourse with her. No medical evidence of rape was offered by the State.

Respondent’s defense was an alibi. He did not testify; but he called two witnesses. One, a friend, told the court that on the evening in question he met respondent at about 7:30; and the two of them, he said, were together until after 11:30 P.M. The other, respondent’s sister, told the court that respondent and the friend came home together at about 7:30 and left at 7:45 P.M. They returned at about 11 P.M., at which time she sent respondent on an errand to a nearby store. The complaining witness, the woman friend and the police officer furnished all the evidence in support of the petition. Respondent contends this evidence, considered against the testimony of his alibi, did not prove him guilty beyond a reasonable doubt.

It is a rule of our criminal law that the identification testimony of a single witness, even if it be that of a crime victim, is sufficient to convict if the identification is positive and the witness is credible. (People v. Clarke, 50 Ill.2d 104, 277 N.E.2d 866; People v. Day, 2 Ill.App.3d 811, 277 N.E.2d 745.) This is true although the testimony of that witness is contradicted by the defendant, or there are alibi witnesses testifying for him. (People v. Solomon, 24 Ill.2d 586, 182 N.E.2d 736; see People v. Irons, 20 Ill.App.3d 125, 312 N.E.2d 664; compare People v. Williams, 96 Ill.App.2d 64, 237 N.E.2d 750.) Contradiction of testimony affects the credibility of a witness, and when this occurs, the degree of his credibility and the weight to be given his testimony are matters for determination by the trier of the facts. (People v. Novotny, 41 Ill.2d 401, 244 N.E.2d 182.) If identification of an accused is doubtful, vague and uncertain, his conviction will be reversed; however, if his guilt is established by an identification which proves, beyond a reasonable doubt, that he committed the offense charged, his conviction will be affirmed. People v. McVet, 7 Ill.App.3d 381, 287 N.E.2d 479.

In this case the complaining witness testified that she was in an elevator for about 15 minutes with respondent and his accomplice. Her observations, as she recounted them, were made under the usual amount of illumination. She was positive and certain in her in-court identification of respondent. The test of a positive in-court identification is not whether the witness gives a full description of the features and clothing of the identified person; it is whether the witness was close enough for a sufficient length of time under conditions adequate for observation, and thus had the opportunity to see, observe and later to be able to make the identification. (People v. Canale, 52 Ill.2d 107, 285 N.E.2d 133; People v. Johnson, 6 Ill.App.3d 1003, 286 N.E.2d 380.) Therefore, the fact that the complaining witness could not remember a scar on respondent’s cheek or whether he had facial hair did not make her in-court identification of him insufficient. Precise accuracy in describing the facial characteristics of an accused is not necessary if the identification is positive. (People v. Chambers, 112 Ill.App.2d 347, 251 N.E.2d 362; People v. Neeley, 18 Ill.App.3d 287, 309 N.E.2d 725.) At best, these details affect the weight to be given the identification testimony. People v. Tunstall, 17 Ill.2d 160, 161 N.E.2d 300; People v. Robinson, 3 Ill.App.3d 843, 279 N.E.2d 526.

In People v. Scott, 4 Ill.App.3d 279, 280 N.E.2d 715, a rape victim was alone with the man she said was the defendant in a stopped elevator for one and a half hours. Later, to a police officer, she described her assailant as 5' 10", weighing 160 pounds, of medium build and ruddy complexion. To a man who testified for the defense, she described the same assailant as short, rather fat and shabbily dressed. Another woman who was raped in a nearby building, also in an elevator, and allegedly by the same man, described her assailant as 5' 6" or 5' 11", weighing between 160 and 165 pounds and having a dark complexion. Evidence of both rapes was admitted to show a common design or scheme by which the crimes were committed. On appeal from his conviction, it was argued that the State’s identification evidence was vague, general, conflicting and unworthy of belief. We affirmed, holding that the evidence sufficiently proved defendant’s identity as the rapist, despite the claimed generality of the descriptions given the police and their conflict with the description one victim gave to a defense witness. We noticed that there was partial corroboration of the complaining witness by another State witness. Here, the version of the occurrence given by the complaining woman was corroborated, in part, by the friend whose apartment she was going to visit. This witness described the condition of the complainant immediately after the assault. This evidence was probative of the issue whether the woman had been raped. See People v. Marx, 291 Ill. 40, 125 N.E. 719; People v. Weaver, 8 Ill.App.3d 299, 290 N.E.2d 691.

Respondent argues that even if the issue of identity is resolved against him, the finding of delinquency must be reversed because the State did not prove the complaining witness was raped. He points out that the complaining witness said only that “he penetrated” her vagina, without specifying this was done by respondent with his penis; that the evidence does not show he was 14 years or older, a requirement for rape in this State; and that the evidence did not prove the complaining woman was not his wife. In our judgment, these arguments are specious.

“Penetration,” as that word is used in connection with crimes against females, means “e * * the insertion of the male part into the female parts to however slight an extent.” (Black’s Law Dictionary 1291 (4th ed. 1951).) It can be proved by circumstantial evidence; and when there is some proof, it is a question of fact whether it occurred. (See People v. Schultz, 260 Ill. 35, 102 N.E. 1045.) Any penetration of the female sex organ by the male sex organ is sexual intercourse, which, under our law, is an element of rape. (People v. Polk, 10 Ill.App.3d 408, 294 N.E.2d 113; Ill. Rev. Stat. 1971, ch. 38, par. 11 — 1(a) (b).) Therefore, on the complaining witness’ testimony that, by force and against her will, one youth put his penis in her vagina and later respondent “penetrated” her vagina, it was for the trial judge to find whether respondent did so with his penis. It is obvious that the trial judge so found. We agree with the finding.

As to respondent’s age, the burden of proving he was below the minimum age was on him. (Sutton v. People, 145 Ill. 279, 34 N.E. 420; People v. Musial, 349 Ill. 516, 182 N.E. 608; People v. Ventura, 415 Ill. 587, 114 N.E.2d 710; People v. Kutella, 132 Ill.App.2d 248, 269 N.E.2d 111.) And with regard to the marital relation of the parties immediately involved, that is a matter provable indirectly or by the surrounding facts and circumstances. (See State v. Seeb (1949), 76 N.D. 473, 37 N.W.2d 341; People v. Smith (1968), 263 Cal.App.2d 631, 69 Cal. Rptr. 670.) The complaining woman was a resident of the State of Michigan. She was asked if she was “Miss” or “Mrs.” and she replied, “Mrs.” That answer carried an inference that she was not respondent’s wife. And since no evidence in the record rebuts this inference, the fact that the complaining witness was not respondent’s wife was adequately established.

The State was required to prove beyond a reasonable doubt that respondent committed the acts of delinquency alleged in the petition. (In re Urbasek, 38 Ill.2d 535, 232 N.E.2d 716; In re Winship (1970), 397 U.S. 358, 25 L.Ed.2d 368, 90 S.Ct. 1068.) Respondent argues that the State did not carry this burden because he introduced evidence of an alibi. This argument cannot prevail. It is well established that a trial judge, sitting as trier of the facts without a jury, is not obliged to believe the testimony of alibi witnesses over the positive identification of an accused, even though there be a greater number of witnesses in support of the alibi. (People v. Jackson, 54 Ill.2d 143, 295 N.E.2d 462; People v. Smith, 17 Ill.App.3d 494, 308 N.E.2d 257; compare People v. Davis, 19 Ill.App.3d 709, 312 N.E.2d 360.) We conclude, therefore, that tire trial court’s finding that respondent was a delinquent because he committed the offense of rape was proved beyond a reasonable doubt. (In re Forrest, 12 Ill.App.3d 250, 298 N.E.2d 197.) The order is affirmed.

Affirmed.

STAMOS and DOWNING, JJ., concur.

       Ill. Rev. Stat. 1971, ch. 37, par. 701 — 1 et seq.

      Section 4 — 8(2) of the Act provides that “[i]f the court finds that the minor is a [delinquent] person 4 ** 4 and that it is in the best interests of the minor and the public that he be made a ward of the court, the court shall note in its findings whether he is delinquent * * * and shall adjudge him a ward of the court 4 * Ill. Rev. Stat. 1971, ch. 37, par. 704 — 8(2).

       In the balance of this opinion, we wiU refer to appellant, Isaac Williams, Jr., as respondent, the term used in the proceedings below.

       This offense is defined and made punishable by section 11 — l(a)(b)(c) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 11 — 1(a)(b)(c)). Section 2 — 2 of the Juvenile Court Act provides, in its pertinent part, that “[t]hose who are delinquent include 400 any boy who prior to his 17th birthday * * * has violated or attempted to violate, regardless of where the act occurred, any federal or state law or municipal ordinance 4 4 Ill. Rev. Stat. 1971, ch. 37, par. 702 — 2.


author: Mr. JUSTICE BURKE

text:
    Eugene C. Stewart, Plaintiff-Appellant, v. The Von Solbrig Hospital, Inc., et al., Defendants-Appellees.
    (No. 58850;
    First District (1st Division)
    November 27, 1974.

      Reed, Lucas & Doherty, of Chicago (Charles J. Reed, of counsel), for appellant.
    William T. Halvorsen, of Chicago, for appellee The Von Solbrig Hospital, Inc.
    Clausen, Miller, Gorman, Caffrey & Witous, of Chicago (John R. Caffrey and James T. Ferrini, of counsel), for appellee Central Steel and Wire Company.
   Mr. JUSTICE BURKE

delivered the opinion of the court:

This is a products liability action brought under the doctrine of strict liability concerning a certain type of surgical pin known as the Rush pin. There were three defendants in this suit: Central Steel and Wire Company (hereinafter “Central”), which produced the stainless steel rod in question; R. Retzl Company, which shaped the rod for its final use; and The Von Solbrig Hospital, Inc. (hereinafter the “Hospital”), which implanted the Rush pin in the plaintiffs left leg. Injuries were allegedly sustained due to a break in this Rush pin while it was still implanted in the plaintiff’s leg. The jury awarded the plaintiff a verdict of $40,000 against defendants Central and the Hospital while rendering a verdict for defendant Retzl. The court then entered judgments notwithstanding the verdict for both Central and the Hospital on the defendants’ motions. The court refused to grant plaintiffs motion for a judgment notwithstanding the verdict against Retzl. Plaintiff has elected to dismiss his appeal from the judgment in favor of Retzl and only appeals the order which granted Central and the Hospital judgments notwithstanding the verdict.

The Rush pin is a type of intramedullary rod. Intramedullary rods have been utilized by the medical profession to align and stabilize fractures to the tibia bone located in the leg. Dr. Charles R. Von Solbrig, an officer and agent of the defendant hospital corporation, had designed a special type of intramedullary rod Which is known as the Rush pin. Retzl was employed to fabricate these Rush pins. In turn, Retzl employed Central to supply a specific type of stainless steel rod which Retzl would form into Rush pins.

In December of 1965 the plaintiff, Stewart, visited Dr. Van Solbrig, an officer of the Hospital corporation, complaining of an injury to his left leg. Dr. Von Solbrig found that the plaintiff had sustained a severe fracture to his left tibia. On December 28, 1965, an operation was performed by Dr. Von Solbrig in which a Rush pin was inserted into the tibia of the plaintiffs left leg. The rod used to form the pin. had been supplied by Central and the pin had been fabricated by Retzl.

Sometime later the pin broke while in the plaintiffs leg. Several operations and complications concerning the plaintiff’s left leg transpired after this break. The plaintiff alleges that these subsequent operations and complications were caused by the break in the pin and that a defect in the pin was the cause of the break. A major part of the trial was concerned with the cause of this break.

The plaintiff presented Dr. Lautenschlager, an expert witness in the field of biological materials, who testified concerning defects in the Rush pin. Dr. Lautenschlager testified that he had examined the Rush pin in question and found that it contained certain inclusions (foreign materials found in the metal rod) and scratches upon the metal’s surface. These inclusions and scratches were in excess of the amount which is normally found in a Rush pin. He testified that if these inclusions were not present the strength of the pin would have been increased by 50 percent.

The plaintiffs case was tried on the theory that these alleged defects in the Rush pin were what caused the pin to break and were therefore the cause of the plaintiff’s injuries. The defense on the other hand was based upon the theory that the break resulted from the plaintiff walking upon his left leg after the cast was removed despite the doctor’s orders not to walk on the leg. The defense presented evidence that: (1) the Rush pin was not designed to support a patient’s weight when the leg was not in a cast where the fracture had not healed; (2) walking on an unhealed leg without a cast would cause the pin to break; (3) the plaintiff walked on it without a cast when the leg had not healed; (4) the pin broke shortly after the plaintiff started walking on it; and (5) walking upon it was in fact the cause of the break.

A number of witnesses testified concerning the intended function of the Rush pin. Dr. Von Solbrig, called by plaintiff under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 60), said that “the last thing in the world you would want on an intramedullary rod would be to serve as a weight bearing thing.” Dr. Greener, another witness for the plaintiff who was an expert in the behavior of engineered materials within the human body, testified on cross-examination that the Rush pin in question was not a weight-bearing rod. Finally, Dr. Thompson, again a witness for the plaintiff, testified that he did not think the function of the Rush pin was to bear weight. There was, however, a great deal of testimony by many of the expert witnesses that the intended function of the Rush pin was to keep the fracture in alignment and to keep the fracture from moving.

There was also testimony concerning what would happen if a patient with a non-defective Rush pin implanted in his leg walked on tire leg which had not yet mended without a cast. Dr. Thompson, the plaintiff’s expert, agreed on cross-examination that one might reasonably expect that a pin so inserted would break under these conditions. Dr. Greener, another expert witness for the plaintiff, testified that surgical implants in general, if subjected to weight overloads, would normaUy be expected to fail. Dr. Lautenschlager, another expert for the plaintiff, testified that 2 or 3 days of infrequent walking would have produced the break in the Rush pin that had been inserted in the plaintiffs leg.

After the Rush pin was implanted in the plaintiff’s left leg on December 28, 1965, the plaintiffs left leg was continually in a cast until January 31, 1967. X-rays of the plaintiff’s leg were taken at periodic intervals during this time span. The X-rays showed only partial healing of the fracture. This partial healing appeared to be reversing itself. Dr. Lautenschlager, one of the plaintiff’s experts, testified after examining X-rays taken one week before the removal of the cast that there was no union of the tibia in which the Rush pin was inserted. Dr. Von Solbrig testified that this X-ray showed that there had been no union of the tibia bone which could support weight. Dr. Von Solbrig testified that he therefore instructed the plaintiff not to put any weight on that leg after the cast was removed. Several of the expert witnesses testified that none of the X-rays taken while the leg was in the cast, including the one taken on January 24, 1967, one week before the cast was removed, showed any break in the Rush pin.

The evidence concerning whether the plaintiff walked on his left leg was provided by the plaintiff’s own testimony. He testified on direct examination that he did not put any weight on the leg after the cast was removed on January 31, 1967. However, on cross-examination, the plaintiff admitted he walked on the leg for several days. He then qualified this by saying he only walked on it with the aid of crutches. However, the defense attorney pursued him on whether he had in fact walked on the leg:

“Q. You also told Dr. Anderson you walked on it?
A. I had walked on it a couple of days.
Q. You walked on it?
A. All right.”

As to the specific cause of the break, Dr. Lautenschlager, plaintiffs witness, testified that 2 or 3 days of infrequent walking upon the Rush pin implanted in the plaintiffs leg would have produced a break in the pin. A metallurgical engineer, Mr. John Sheehan, testified for the defense that he had examined the rod with an electron microscope. He found that the rod had been subjected to a very high degree of stress over a short period of time. The stress produced the break. When asked his opinion as to what caused this high degree of stress, Mr. Sheehan answered, “Walking.”

On February 6, 1967, 1 week after the cast had been removed, and by plaintiff’s admission after he had walked on his left leg, another X-ray was taken. This X-ray showed a break in the Rush pin.

Upon this evidence the jury returned a verdict for the plaintiff against defendants Central and the Hospital while finding for defendant Retzl. Defendants Central and the Hospital then moved for a judgment notwithstanding the verdict contending that there was no evidence showing that the alleged defect was the cause of the break. Central and the Hospital contended that the fact that the plaintiff walked on the leg against his doctor’s orders was the cause of the break. The court, upon this motion, entered judgments notwithstanding the verdict for the movants Central and the Hospital. The plaintiff appeals from these judgments.

A judgment notwithstanding the verdict should only be entered in cases in which, “all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513, 514.) Defendants contend that the plaintiff had completely failed to show that the break in the Rush pin was caused by any defect in the pin but rather was the result of a misuse of the product and therefore they are entitled to the judgments notwithstanding the verdict.

In a products liability case under the doctrine of strict liability a plaintiff “must prove that their injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer’s control.” (Suvada v. White Motor Co., 32 Ill.2d 612, 623, 210 N.E.2d 182, 188.) One element in a plaintiff’s case, therefore, must be that the condition which caused his injury is an unreasonably dangerous condition. This “unreasonably dangerous condition” requirement is met when a product is dangerous because it fails to perform its intended function. Dunham v. Vaughan & Bushnell Mfg. Co., 42 Ill.2d 339, 247 N.E.2d 401; Huckabee v. Bell & Howell, Inc., 47 Ill.2d 153, 265 N.E.2d 134.

The uncontradicted testimony in the instant case was that the Rush pin s intended purpose was to align and stabilize the fracture but not to support the body’s weight upon an unhealed fracture outside of a cast. The plaintiff in his own reply brief on appeal admits that the Rush pin was not designed for this latter purpose. Furthermore, there was testimony, again uncontradicted, that if a patient walked on an unhealed fracture containing a Rush pin without a cast on, the pin would reasonably be expected to break.

It is clear then that the Rush pin was never intended to support the body’s weight but only to align and stabilize the fracture. Therefore, if the pin broke because the plaintiff walked on it without a cast in absence of a union of the bone, then the break had nothing to do with the pin’s failure to perform its intended function. A break due to walking on the leg would constitute a misuse of the product against the specific instructions of the plaintiff’s doctor. A plaintiff may not recover under strict liability if his injury is the result of his misuse of the product. Williams v. Brown Manufacturing Co., 45 Ill.2d 418, 261 N.E.2d 305.

The plaintiff did present evidence that the Rush pin in question had inclusions and scratches which reduced the pin’s strength. However, none of the evidence pointed to the fact that this alleged defect was the cause of the break. Even if the pin had no defects whatsoever, the evidence showed that the pin would have broken if the plaintiff walked on it after his cast was removed. The plaintiff walked on it after his cast was removed by his own admission. The cast had been on for over a year’s time and no break manifested itself in the X-rays. However, within one week after the cast was removed, and after the plaintiff had by his own admission walked upon the leg, a break appeared. Finally, an expert testified that a miscroscopic examination of the pin supported the conclusion that the pin broke because it had been subjected to the stress of having been walked upon.

We are of the opinion that when all of the evidence is viewed in the light most favorable to the plaintiff, it overwhelmingly supports the defendants’ position, so that a verdict for the plaintiff could never stand.

The plaintiff has alleged on appeal that the operations and complications which arose after the Rush pin broke were proximately caused by the break in the pin. It is unnecessary for us to determine this point. We have found that the breaking of the pin was not caused by any defect in the pin, but rather by the misuse of the pin. Therefore, even if the injuries to the plaintiff were caused by the breaking of the pin, the plaintiff still has failed to establish his case.

The judgments notwithstanding the verdict entered for the defendants Central and the Hospital are affirmed.

Judgments affirmed.

EGAN, P. J., and HALLETT, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thomas Stewart, Defendant-Appellant.
    (No. 57326;
    First District (2nd Division)
    November 26, 1974.

      Bloch and Rane, of Chicago (Irwin D. Bloch, Leon C. Rane, and Louis M. Leider, of counsel), for appellant.
    Bernard Carey, States Attorney, of Chicago (Kenneth L. Gillis and Jerald A. Kessler, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

In a three-count indictment, Stephan Sedlacko and the defendant, Thomas Stewart, were charged with three armed robberies. Defendant alone went to trial before a jury that acquitted him of the offense charged in one count and found him guilty of those charged in two. The court sentenced him to serve concurrent terms of 2 to 8 years. He appeals to this court contending that (1) incompetency of his counsel denied him a fair trial; (2) identification of him by two victims of the crimes was vague, doubtful, and as a consequence of this and other aspects of the case, the State failed to prove him guilty beyond a reasonable doubt; (3) rulings of the trial judge that admitted evidence suggesting guilt by association, and which allowed the State to introduce rebuttal testimony, denied him a fair trial; (4) improper comments of the prosecuting attorneys in their closing arguments to the jury were prejudicial. The following are the facts that underlie these contentions.

Our Lady of the Mount Catholic Church is located at 2414 61st Avenue in the town of Cicero, Illinois. On June 25,1970, four priests, Fathers James Flynn, George Francis Cerny, Frank Podgomy and James Skonicki, lived in the church rectory. That day, Fathers Flynn and Skonicki played golf and afterwards went to dinner. At about 10:40 P.M., Father Cemy heard a ring of the rectory doorbell. When he answered, there were two men standing outside. One was dressed like a priest; the other Father Cemy could not see but noticed that he was wearing a jacket. The one in priest’s attire asked for Father Flynn, but Father Cerny said he was not in. The two men left, and, before going to bed, Father Cemy wrote a note to Father Flynn telling him that two men had come to the rectory asking for him.

At about 11:30 P.M., Fathers Flynn and Skonicki returned. Father Skonicki went to bed in his room on the third floor; Father Flynn read the message from Father Cemy. About 10 minutes later, the telephone rang. When Father Flynn answered, a male voice said it was Father Paul from Milwaukee, Wisconsin. The man told Father Flynn that he was advised to contact him because of his rapport with teenagers among whom the caller wanted to work in the Chicago area. However, the man said he had to return to Milwaukee early the next morning and therefore asked if he could come to the rectory that night. Father Flynn agreed; and approximately a half hour later, between 12:15 and 12:30 A.M., the man arrived. He was dressed like a priest; he said he was Father Paul from Milwaukee. Father Flynn admitted him to the rectory, and for a short period, they drank some beer and talked about teenagers, social conditions, neighborhod racial changes and organizational activities within the church.

Then “Father Paul” said he had some literature in his car he thought would interest Father Flynn. He went out and promptly returned with an attache case which he put on a desk, opened and from it pulled a gun. He then ordered Father Flynn to sit down in a chair. Father Flynn did so, and a few moments later, “Father Paul” left and returned with another man who, undisguised and unmasked, stood in a doorway and looked into the room where Father Flynn was sitting. The room was illumined by light in the ceiling. Father Flynn had the opportunity to look at this second man for about 5 seconds and saw he was wearing a tan or beige colored jacket.

A short time later, Father Flynn was ordered into another room. As he walked down a hallway, he saw the second man putting a nylon stocking over his head. On this occasion, the priest could observe that man for about 5 seconds and saw that he had a gun in his possession. Within a few moments, a third man entered the rectory and armed himself with the shotgun he took from a case. The intruders then asked Father Flynn if there was anyone else in the rectory. When he told them of the other three priests, two of them went to upper floors and awoke Fathers Skonicki, Podgomy and Cerny. They were brought downstairs to the office where Father Flynn was sitting ,and the four priests were ordered to sit in chairs arranged so they each faced a wall. Then keys to their rooms and other parts of the rectory were taken from them. The intruders took watches from Fathers Flynn, Podgory and Cerny and took cash either from their persons or from their respective rooms. Later, the priests were ordered to get into two cars: Father Flynn in his with Father Podgomy; Father Skonicki in his with Father Cerny. They were ordered to leave Chicago and drive to Milwaukee, Wisconsin. However, after driving a short distance, the priests, at their first opportunity, stopped a Cicero police department squad car and told police officers about what had occurred in the rectory. Then, accompanied by the officers, the four returned to the church where they found Father Lovett, a priest from a nearby parish.

Two or three weeks later, sometime during the middle of July 1970, Father John Keenan, one of Father Flynn’s classmates, brought to the rectory a copy of the May 1970 issue of a magazine, the Chicago Journalism Review. Father Keenan thought an article in the magazine, one concerning a group called “the Legion of Justice,” contained information about the men who robbed the rectory during the early morning of June 26, 1970. On one page of the publication were pictures of three men. Father Flynn and Father Skonicld looked at the three pictures and identified the one of Stephan Sedlacko as the “Father Paul” and that of the defendant, Thomas Stewart, as the second man who came into the rectory and was observed twice for about 5 seconds, once at the doorway of the office and once in the hallway, armed with a gun and putting a nylon stocking over his head. Having made this identification, the priests, accompanied by two trustees from the church, went the next- day to the Cicero police department and showed the pictures to investigating officers who were assigned to the case. A short time later, Father Flynn was shown a group of 20 photographs from which he picked out a picture of the defendant, Thomas Stewart. Defendant was later arrested, the three-count indictment against him and Sedlacko was returned, and on October 6, 1971, represented by private counsel employed by him, he went to trial before a jury.

Between the robberies and the trial, Father Podgorny passed away. Therefore, the three surviving priests weer the witnesses for the prosecution, Father Flynn was the first to testify. He told the jury of his experiences on the evening of June 25 and the early morning of June 26, 1970: how he saw the man dressed in priest’s garb; how he saw the second man, observed him twice for intervals of 5 seconds, and later was able to identify him along with “Father Paul” by looking at pictures in a copy of the Chicago Journalism Review; and, after that, picking out a picture of defendant from among 20 shown him by Cicero policemen. Over defense objections, Father Flynn was permitted to tell the jury how he learned the name of Stephan Sedlacko, and how, on the occasion of the robberies, defendant and Sedlacko were together in the rectory and acted in concert with one another.

Father Skonicki was the second witness. He also described to the jury his experiences of the evening and early morning hours in question. He said he was awakened in his room by two intruders, armed with guns, who brought him and Father Podgorny to an office on the first floor of the rectory where Fathers Flynn and Cerny were seated in chairs heads down and facing a wall. Corroborating Father Flynn’s testimony in large part, he told the jury how, during a period that followed, the intruders threatened him and his fellow priests with death by shooting; how demands were made for the safe combination and keys; how, in connection with a demand concerning the signing of checks, Father Podgomy was hit in the face by one of the intruders. Father Skonicki said that as he was driving his car out of the garage, as he was ordered to do, he had a 5-second opportunity to look at one of the intruders. Then, the priest was asked if he saw anyone in court who was the same person. Father Skonicki looked and then told the jury that defendant “[ajppears to be the same person.”

• Father Cerny was the third and last witness for the prosecution. He described his experiences, telling the jury how he answered the doorbell of the rectory on the night of June 25 and seeing the two men, one dressed in a priest’s garb inquiring about his fellow priest. He told the jury how he left the message for Father Flynn and went to bed. He, like Father Skonicki, described how he was awakened by two intruders armed with guns who ordered him from his bedroom to the first-floor office where Father Flynn was sitting.

Defendant’s defense was an alibi. In support of it, he called his father, an older brother and two sisters. They testified that during the evening and early morning hours of June 25-26, 1970, defendant was at home, 1411 North Linder in Chicago. Then they were cross-examined. Three of them, the father, the brother and the older sister, denied ever hearing of defendant having an acquaintance or friend named either Stephan or Stephan Sedlacko. The father was asked if he knew all of defendant’s acquaintances. He said he did. Then, he insisted that he had never heard of a Stephan Sedlacko nor had he ever received a telephone call for defendant by a person of that name. Defendant rested his case with the testimony of his alibi witnesses.

Thereafter, over his objections, the court allowed the State to call a Chicago policeman who told the jury that he was a member of his police department’s Subversive Section, Intelligence Division. He testified that on March 11, 1970, he was near the Palacio Theater in Chicago and there saw defendant and Stephan Sedlacko together. On that occasion, a photograph, marked as a prosecution exhibit, was taken showing defendant and Sedlacko near each other. Testimony of this rebuttal witness concluded presentation of the evidence. After this, the jury heard argument of counsel for the parties, received its instructions, deliberated and returned its verdicts on which the court entered judgment. We now turn to defendant’s contention concerning competency of his counsel because in our opinion it has a bearing on the others he makes in this appeal.

Defendant calls our attention to specific instances which, he insists, show that he was not given effective representation at his trial. 1. His counsel did not object when the trial judge read the indictment to the jury. This reading, according to defendant, disclosed that Stephan Sedlacko, who was not on trial, was a codefendant. Disclosure of this fact, defendant argues, permitted the State to prove him guilty because of his alleged association with Sedlacko. 2. Counsel failed to request that witnesses be excluded from the courtroom before the prosecuting attorney made his opening statement to the jury. 3. He did not make a pretrial motion to suppress identification evidence, a request which perhaps would have been granted by the trial court. 4. Counsel failed to request copies of police reports and transcripts of the preliminary hearing. 5. He failed to tender, for the trial court’s consideration, any defense instruction. 6. Counsel failed to exploit the absence of a face-to-face confrontation between defendant and the priests after his arrest. 7. He failed to interpose timely and appropriate limiting objections to questions asked the priests when they testified for the State. 8. Counsel failed to interpose timely and appropriate objections to improper comments in the closing arguments made by the prosecuting attorneys in their summations to the jury.

The competence of defendant’s counsel in the proceedings we review must be decided solely on the record of this case. (People v. Williams, 26 Ill.2d 190, 196, 186 N.E.2d 353.) And before we can conclude that this was a case of inadequate representation, defendant must show not only actual incompetence of his counsel, as reflected by the manner in which the lawyer discharged his duties as a trial attorney; he must show that he was substantially prejudiced by the conduct of his counsel, without which the outcome of his trial would probably have been different. (People v. Bliss, 44 Ill.2d 363, 255 N.E.2d 405.) It is with these principles in mind that we examine the record in order to determine whether the specific instances to which our attention has been called support defendant’s claim of incompetence of counsel at his trial.

To begin with, defendant’s counsel could not object when the trial judge read the indictment to the jury. (See United States v. Press (2d Cir. 1964), 336 F.2d 1003, 1016.) Reading the indictment complies with the requirement of Supreme Court Rule 234 that “[t]he judge shall initiate the voir dire examination of jurors by identifying the parties and their respective counsel and briefly outlining the nature of the case.” (Ill. Rev. Stat. 1971, ch. 110A, par. 234; see 23 C.J.S. Criminal Law §962 (1961).) A lawyer should not be criticized for failing to make an objection which would have ben unavailing. (People v. Johnson, 45 Ill.2d 501, 259 N.E.2d 796.) Further, it appears that, contrary to defendant’s assertion, his counsel did not fail to request the court’s exclusion of witnesses before the State’s opening argument. The record shows that as trial before the jury was about to begin, an attorney for the State made a motion to exclude witnesses. Defendants counsel joined in the motion, saying, “I was going to say the same thing, of course.” Thereafter, the jury was brought into the courtroom and the opening statement for the prosecution was made.

Recently, when we had occasion to decide a contention similar to the one defendant makes concerning competency of his counsel, we said that “[fjailure of a lawyer to make a motion, to object to improper testimony during a trial, or to object to portions of a prosecutor’s final argument, does not establish lack of competent representation.” (People v. Walker, 22 Ill.App.3d 711, 318 N.E.2d 111.) Usually, the decision of a trial lawyer not to make a motion to interpose an objection, the kind of things about which defendant complains in this appeal, are matters of trial strategy, not evidence of incompetency of counsel. (People v. Rettig, 131 Ill.App.2d 687, 264 N.E.2d 835.) Nor was it of significance that counsel failed to tender any defense instructions; those submitted by the State covered the case. Therefore, we conclude that defendant was not denied a fair trial because his counsel was incompetent. People v. Georgev, 38 Ill.2d 165, 230 N.E.2d 851; People v. Laffiton, 62 Ill.App.2d 440, 211 N.E.2d 15.

In his brief and argument before us, defendant concedes that during the early morning hours of June 26, 1970, four priests were robbed in the rectory of Our Lady of the Mount Church in Cicero, Illinois. This concession is unavoidable; the uncontradicted testimony of the priests vividly told the jury how they were terrorized by three intruders, each armed with a gun, and how personal property, including cash, was taken either from their person or from the premises in which they lived. Thus, the State proved the armed robberies charged in Counts 1 and 2 of the indictment. (See People v. Jones, 53 Ill.2d 460, 292 N.E.2d 361.) The remaining question, one which the State was obliged to prove beyond a reasonable doubt, was whether the defendant, acting either alone or in concert with others, committed those offenses. (People v. Berne, 384 Ill. 334, 51 N.E.2d 578.) And in determining the issues of identity and concert of action, it was within the province of the jury to consider all the facts and circumstances of the case and decide whether defendant was one of the robbers and whether the group that invaded the rectory the morning in question did so with a common purpose to rob the priests. (People v. Hubbard, 55 Ill.2d 142, 302 N.E.2d 609.) These were issues of fact for the jury, and its determination will be set aside by this cotut only where the evidence is so unsatisfactory as to leave a reasonable doubt of defendant’s guilt. (People v. Glover, 49 Ill.2d 78, 84, 273 N.E.2d 367; People v. Lewis, 18 Ill.App.3d 281, 309, N.E.2d 784.) In this case, whether the evidence that convicted. defendant is so unsatisfactory that it leaves a reasonable doubt of his guilt depends on the testimony of Fathers Flynn and Skonicki, weighed against that of the four ahbi witnesses.

Father Flynn testified that on the morning of the robberies, in 5-second durations, he saw defendant twice in the rectory, on one occasion armed with a gun. The priest told the jury he saw defendant with the other two intruders, acting in concert with them. Later, Father Flynn said he first identified defendant’s picture in an issue of a magazine sent to him by a classmate. Then, he went to the Cicero police station where they later showed him 20 photographs from which he picked out one of the defendants. In court, Father Flynn was positive that defendant was one of the robbers. Father Skonicki supported Father Flynn’s testimony when he told the jury that as he was driving out of his garage in obedience to the orders of the robbers, he saw one of them and observed him for about 5 seconds. He said defendant appeared to be that person.

Against this testimony, defendant’s four ahbi witnesses testified that on the occasion in question he was in his home in bed. From its verdicts, however, it appears that the jury disbelieved these defense witnesses. This fact is unavailing to defendant as error in this appeal because it was within the province of the jury to choose whom it would believe or disbelieve. (People v. Hyde, 1 Ill.App.2d 831, 275 N.E.2d 239.) And contrary to defendant’s contention, as shown by the jury’s verdicts, Father Flynn’s identification testimony was not vague, doubtful or uncertain. In fact, he was positive and insistent that defendant was one of the three robbers who came to the rectory of Our Lady of the Mount Church on the occasion in question. Therefore, the State’s identification evidence was not doubtful and unclear, notwithstanding that Father Skonicki, one of the witnesses, was not certain that defendant was one of the robbers. (See People v. Preston, 88 Ill.App.2d 107, 231 N.E.2d 704 (abstract opinion); compare People v. Waters, 2 Ill.App.3d 429, 275 N.E.2d 472; People v. Rodgers, 3 Ill.App.3d 85, 279 N.E.2d 72.) We conclude that defendant’s identification by the two victims of the crimes was not vague or doubtful and that the evidence heard by the jury proved him guilty beyond a reasonable doubt. (People v. Bates, 9 Ill.App.3d 882, 293 N.E.2d 358; People v. McElroy, 63 Ill.App.2d 403, 211 N.E.2d 444.) This conclusion brings us to consideration of defendant’s remaining contentions which, if sound, would require reversal of his conviction and remandment of the cause for a new trial. The most serious of these is the contention that the trial judge erred in making rulings that admitted evidence suggesting defendant’s guilt by association with Sedlacko, the absent codefendant, and which aUowed the State to introduce the rebuttal testimony of the Chicago policeman.

We must reject this contention. Defendant and Sedlacko were jointly indicted. It was the State’s theory that in the robberies, Sedlacko and defendant, aided and abetted by a third person, went to the rectory of Our Lady of the Mount Church and there, acting in concert, committed the crimes for which defendant, alone, was on trial. The testimony of the three priests proved a conspiracy to commit the robberies. The law is settled that once conspiratorial conduct is proved, concert of action established, the acts and declarations of an alleged conspirator' are admissible against a coconspirator, even though a conspiracy is not charged and not all of the conspirators are indicted or on trial. (See People v. Parson, 27 Ill.2d 263, 189 N.E.2d 311; People v. Niemoth, 409 Ill. 111, 98 N.E.2d 733; People v. Trigg, 97 Ill.App.2d 261, 240 N.E.2d 130; 22A C.J.S. Criminal Law §§ 754-756 (1961).) Therefore, no right of the defendant was infringed by the trial court rulings that admitted evidence which showed the jury his association with Sedlacko at the time of the crimes charged in the indictment.

The ruling that allowed the State to introduce the rebuttal testimony of the Chicago policeman was also correct. Cross-examination of defendant’s alibi witnesses ehcited from three of them the testimony that defendant did not have a friend or acquaintance named either Stephan or Stephan Sedlacko. It is the rule that testimony ehcited on cross-examination, that which is within the scope of the direct examination, is testimony for the party caHing the witness, and not for the party cross-examining. (See Sullivan v. Coca Cola Bottling Co. of Chicago, 313 Ill.App. 517, 40 N.E.2d 579; 98 C.J.S. Witnesses § 375 (1957.) In the instance before us, defendant offered the testimony of his alibi witnesses to prove that he was not with Sedlacko when the robberies were committed. Cross-examination which touched on his acquaintance with Sedlacko was within the scope of the direct inquiry. This being so, the State could rebut the testimony elicited from defendant’s alibi witnesses when they were cross-examined. Compare People v. Kirkwood, 17 Ill.2d 23, 160 N.E.2d 766; People v. Terczak, 96 Ill.App.2d 373, 238 N.E.2d 626.

The remaining contention concerns certain comments which the prosecuting attorneys made in their closing arguments to the jury, comments which defendant argues were prejudicial to his rights to a fair trial. For example, it is complained that the first attorney who addressed the jury for the State closed his summation by caHing attention to the testimony of the three priests, saying that “* ” * [t]hey have a right to practice their religion in their parish any way they see fit. 5 * * We have a right to freedom of religion. Consider that right also if you would.” Thereafter, defendant’s counsel made his argument to the jury. And in the course of it, he referred to the fact that the prosecution did not call any Cicero policeman as a witness, nor did the State produce any fingerprints, physical evidence or recovered proceeds of the robberies.

Then, in what is conceded was an attempt to respond to this defense argument, the assistant State’s Attorney who closed for the State commented, “* * * we hear in every single case * * * [the] talk about police officers. Why weren’t they called?” Answering the question, he told the jury that the names of Cicero policemen were on the prosecutor’s list of witnesses; however, none was called because their testimony concerning the conversation any of them had with the priests the morning of the robberies would have been hearsay and inadmissible. The assistant State’s Attorney said that with regard to the proceeds of the robberies, the State did not claim that any were recovered. As a matter of fact, he said that the defendant was not arrested until September, 1970. Following this comment, the assistant State’s Attorney went on to observe that defense counsel had talked with Cicero policemen; therefore, he could have subpoenaed them had he so desired. The defense, he said, had the right of subpoena possessed by the State. Finally, commenting generally on what defense counsel had said, the prosecuting attorney told the jury, “That’s sand. That’s the old cloud of dust as Mr. Stewart happily walks out of the courtroom. If the sand gets into the jury’s eyes — .”

It is the rule that whether language used by a prosecuting attorney in arguing to a jury will cause reversal of a conviction depends on the facts of the particular case before us. (See People v. Baker, 365 Ill. 328, 334, 6 N.E.2d 665.) Therefore, looking at this case, we observe that when the priests testified, they attributed to the robbers language which suggested an attempt to oppress them because of their religious philosophy and their beliefs concerning the administration and social role of Catholic churches. In fact, some of this testimony was elicited by defense counsel during cross-examination, and its significance was acknowledged in his final argument. It appears, then, that in making his summation, the assistant State’s Attorney, even though crudely and indeed impolitely, was commenting on the evidence. This was proper. A prosecutor can comment on the evidence introduced in a trial and on all the legitimate inferences which can be drawn from it. (People v. Porterfield, 131 Ill.App.2d 167, 268 N.E.2d 537.) The argument of a prosecuting attomey which is not expressed with the nicety of polite conversation is not ground for reversal when the facts justify what is said. See People v. Shack, 396 Ill. 285, 71 N.E.2d 633.

With regard to the other comments of the assistant State’s Attorney, it appears they were responses to the argument of defense counsel. Therefore, a case of prejudicial final argument cannot be made merely because what was said in retaliation was more intense than meets with defendant’s approval. Not every ül-advised statement in a closing argument will warrant reversal of a conviction. (People v. Phillips, 126 Ill.App.2d 179, 261 N.E.2d 469; People v. Turner, 82 Ill.App.2d 10, 226 N.E.2d 667.) Nor will remarks of counsel in final argument, even though improper, constitute reversible error unless they result in substantial prejudice to a defendant. (People v. Nilsson, 44 Ill.2d 244, 255 N.E.2d 432; People v. Smith, 20 Ill.App.3d 756, 314 N.E.2d 543.) Defendant does not show us how he was prejudiced by the comments about which he complains. The judgment is affirmed.

Affirmed.

STAMOS and DOWNING, JJ., concur.

       Also, between the robberies and the trial, Father James Skonicki left the priesthood and married a nun. This fact was disclosed to the jury in his direct examination. However, in this opinion, we will refer to him as Father Skonicki, his religious status at the time of the crimes.


author: Mr. PRESIDING JUSTICE ADESKO

text:
    Mary Judith Helfenbein, Plaintiff-Appellant, v. Marilyn Malzahn, Defendant-Appellee.
    (No. 59067;
    First District (4th Division)
    November 27, 1974.

      William Keck, of Herman & Tannebaum, of Chicago (Sidney Z. Karasik and Gary Dienstag, of counsel), for appellants.
    Howard T. Brinton and Harold W. Huff, both of Chicago (Wildman, Harrold, Allen & Dixon, of counsel), for appellee.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

This appeal arises from an action filed in the Circuit Court of Cook County by Mary Judith Helfenbein seeking to recover damages for personal injuries sustained when she fell in the driveway of a home owned by the defendant, Marilyn Malzahn. At trial, defendant moved for a directed verdict at the close of plaintiffs evidence. This motion was granted, and plaintiff appeals,

At trial, plaintiff’s husband, Victor Helfenbein, testified that he and his wife had known defendant and her husband for at least 5 years prior to the accident. During that period of time, and specifically within the 6 to 8 months prior to the accident, they had visited defendant at her home several times. He stated that the driveway of defendant’s home had ruts on either side of it where it joined the street as a result of cars missing the driveway as they entered. He further stated that he had mentioned this condition to defendant’s husband. Plaintiff’s husband was not present at the time of the accident.

Plaintiff testified that on the evening of the accident she returned home after taking her husband to the airport and went to visit a friend. She parked her car on the street, knocked on her friend’s door, but found no one at home. Plaintiff then crossed the street to defendant’s home. It was dark and she noticed that the street and parts of defem dant’s driveway had patches of ice on them. She stayed at defendant’s home for approximately 3 hours. When she left there were no lights outside defendant’s home. She stated that two lights were on inside the house, but that these were turned off as she reached the front steps. Plaintiff went down the stairs to the walk in front of defendant’s home and turned into the driveway. She testified that as she walked down the east side of the driveway her left foot went into a hole and she fell. “I was going into, you know, how a lake ices over and it just seemed like I was going through the ice.” At this point in the testimony, she was shown a photograph of defendant’s driveway and asked to point out “approximately” the location of her fall. Following the fall she crawled back up the driveway and was taken to the hospital by defendant.

During cross-examination plaintiff said that she was not aware of any hole in the driveway and, further, that she paid no attention to the condition of the driveway on previous visits. She admitted that she did not see what caused her to fall. She stated that she had felt a hole with her hands and that there was ice and snow.

The defendant was called by plaintiff as an adverse witness. She said that she did not actually see the fall. Defendant testified that there were no outdoor lights on when plaintiff left, and the indoor lights were turned out sometime later.

It is plaintiff’s contention in this appeal that the trial judge acted in error in directing a verdict in favor of defendant since “defendant owed her [plaintiff] a duty to warn of the dangerous defect in the premises, regardless of how the defect was caused.” Plaintiff here was a social guest. In Illinois, to cite a case quoted by the plaintiff in her brief:

“* * * it seems clearly established that a social guest must take the premises of his host as he finds it and as it pleases the owner to maintain it provided, however, that the owner does not fail in his duty of warning the guest of what might be considered a trap, a concealed defect, or conditions which create a new danger of which the guest has no knowledge. ILP, Negligence, § 58. 25 ALR 2d, p. 600, states that * the cases display a commendable unanimity in holding that a social guest injured by a defect in the premises may not recover against his host in the absence of evidence establishing something more than ordinary negligence in the maintenance of the premises. * * (Snow v. Judy, 96 Ill.App.2d 420, 422, 239 N.E.2d 327.)

On this basis, plaintiff claims that the rut alongside the driveway, covered by the snow or ice, was a dangerous condition or “trap” of which defendant was aware and plaintiff was not. By failing to warn plaintiff of this so-called trap, and also by turning off the inside lights, it is argued that defendant rendered herself liable for plaintiff’s injuries. We do not agree.

A social guest, as the above case and several others cited by plaintiff in her brief note (Kapka v. Urbaszewski, 47 Ill.App.2d 321, 198 N.E.2d 569; Hessler v. Cole, 7 Ill.App.3d 902, 289 N.E.2d 204), must take the premises as he or she finds them and in the condition in which the owner wishes to maintain them. The evidence presented by plaintiff shows that she had visited defendants home in the past and that the premises were generally in the same state as they were on the evening of the accident. Plaintiff’s husband was aware of the ruts in question, though plaintiff herself testified that she had not paid any attention to the ruts or any hole when she visited defendant before. She had visited in the past and was aware or should have been aware of the general condition of the premises as a result. Viewing the evidence in the light most favorable to plaintiff (Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504), we cannot say that there was any concealed defect which defendant had a duty to warn plaintiff of or that there was any evidence presented that established “more than ordinary negligence in the maintenance of the premises.”

Further, even if we accept, arguendo, that the rut or hole in question could have constituted a concealed danger due to the covering of ice or snow and the darkness, the judgment below would still have to be affirmed. A dangerous condition concealed only by darkness must be avoided by a social guest or a licensee at his peril. (Dent v. Great Atlantic & Pacific Tea Co., 4 Ill.App.2d 500, 124 N.E.2d 360.) In the instant case, aside from the darkness, plaintiff submits that she fell through a patch of ice which accumulated over and concealed a rut or hole alongside defendant’s driveway. However, plaintiff’s evidence does not show if this in fact was the cause of her fall. Plaintiff was only able to identify the approximate area in which she fell. Plaintiff’s testimony was that she did not see what caused her to fall. All she could state was that her foot went through the ice and snow and that she could feel a hole through the ice with her hands. She testified that on her way to defendant’s home she saw several patches of ice on the street and driveway. Plaintiff could have stepped through any one of these patches and injured herself. Plaintiff had the burden to show affirmatively that the origin of the ice which caused her fall was unnatural or caused by defendant. (Bakeman v. Sears, Roebuck & Co., 16 Ill.App.3d 1065, 1070, 307 N.E.2d 449.) While a jmy could infer that she had in fact fallen into the rut alongside the driveway, her testimony was that she could not say if this was where she fell or what caused the fall, so any verdict then would be the result of conjecture and speculation and the trial judge was correct in directing a verdict in favor of defendant. See Byrne v. Catholic Bishop of Chicago, 131 Ill.App.2d 356, 358-359, 266 N.E.2d 708.

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

Judgment affirmed.

BURMAN and JOHNSON, JJ., concur.