author: Mr. JUSTICE RECHENMACHER Mr. JUSTICE SEIDENFELD

text:
    Phillip R. Murphy, Plaintiff-Appellee, v. Jewel Companies, Inc., Defendant-Appellant.
    (No. 73-41;
    Second District
    November 27, 1974.

      SEIDENFELD, J., dissenting.
    Hubbard, Hubbard, O’Brien & Hall, of Chicago (A. G. Hubbard, Sam L. Miller, and Frederick W. Temple, of counsel), for appellant.
    Charles M. May, of Hall, Meyer, Fisher, Holmberg, Snook & May, of Waukegan, for appellee.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

This is an appeal from the judgment of the trial court pursuant to the verdict of the jury in favor of the plaintiff. The complaint contained a wilful and wanton count and the verdict was a general verdict for $150,000.

The defendant contends there was no evidence to sustain the wilful and wanton charge; that the plaintiff was guilty of contributory negligence, and that the evidence failed to prove any negligence of the defendant which was a proximate cause of the injury.

The facts are simple, although the evidence is conflicting, on key points.

The plaintiff, riding a motorcycle, had turned right from Green Bay Road onto Central Avenue, an east-west four-lane highway and was riding westerly on Central Avenue in the inner lane at a speed which he estimated was 35 to 40 miles per hour when the accident occurred. The defendants tractor and trailer was going east on Central Avenue and at a point about 600 feet west of Green Bay Road, tihe tractor and trailer made a left turn to enter the Jewel Tea Co. parking lot, at which point the plaintiff’s motorcycle collided with the rear portion of the trailer. The point of entry into the parking lot was that always used by Jewel Tea delivery vehicles; however, it actually was the exit from the parking lot for the general public and was marked: “One Way — Do Not Enter.” Testimony established that the size of the Jewel Tea parking lot did not allow entry of large trailers via the usual entrance used by the public and it was necessary, in order for these large vehicles to pull around behind the building to the receiving dock, for entry to be made by way of what was normally the exit. These deliveries were always made early in the morning before the store was open for business and before the parking lot was being used by the public.

The driver of the rig testified that he was not familiar with the location of the entrance to the parking lot, not having been there before, but that he had been told by other drivers who had made deliveries there to proceed past the usual entrance and enter the lot at the point of exit, which was the second driveway.

The defendant’s driver, Mauge, who had been joined as a defendant but, on plaintiff’s motion, was dismissed from the suit with prejudice at the close of the plaintiff’s case, testified that he activated his left turn signal at a point about 95 yards from the entrance to the parking lot, just after coming to a stop-and-go light, and started edging over into the inner lane. A Mr. Greenwald, who was in his car directly behind the truck just prior to the accident, testified that he saw the left turn signal activate, that he pulled from behind the truck over into the extreme right lane and that at that time he saw the motorcycle coming down the hill 75 to 100 feet from the truck. On cross-examination, however, he stated that the truck driver may not have put on his turn signal until 2 or 3 seconds before beginning his turn. A Mr. William Good, who was the transportation supervisor for the defendant, Jewel Tea Co., at the time, and a Mr. David Waldron, a police officer, both testified that the plaintiff, Murphy, made a statement to said police officer at the hospital, shortly after the accident, stating: “If I was paying attention, it wouldn’t have happened.” The police officer further testified that the plaintiff told him that he did see a turn signal on the vehicle.

At the trial, the plaintiff stated he did not observe any turn signals operating and the driver, Mauge, testified he did not observe the motorcycle until after he had made his turn and had gone across the road so that the trailer was on tire apron of the parking lot and the rear portion of the trailer was blocking both westbound lanes of Central Avenue. The plaintiff, who testified he observed the trailer at a distance of two to five car lengths — roughly 35 to 90 feet — braked and downshifted his motorcycle but was unable to avoid striking the rear wheels of the trailer, causing permanent injuries to the plaintiff.

While the foregoing statement of the facts is admittedly sketchy, it is sufficient, we believe, for a consideration of what we consider, to be the decisive issue in this appeal — that is, the propriety of the instruction on wilful and wanton conduct, objected to by defendant both at the time the instruction was given and in the post-trial motion. The defendant contends it was error on the trial court’s part to submit this issue to the jury at all, since there was so little evidence to sustain the charge of wilful and wanton conduct, and as a matter of law it should have been removed from the case.

It is the plaintiff’s theory that the design of defendant’s parking lot was so defective as to indicate a conscious disregard for the safety of the plaintiff and other members of the public. The accident occurred, the plaintiff contends, by reason of the fact that the defendant (1) designed a parking lot where the defendant’s supply vehicles were required as a practical necessity to enter the lot against the normal flow of traffic and (2) allowed a driver unfamiliar with the location to attempt a delivery under the adverse condition of having to make an abnormal entry. This combination of circumstances, the plaintiff maintains, caused the driver to be distracted so that he neglected to give a timely signal of his intention to turn left or to see the plaintiff approaching. The plaintiff does not contend that the design of the lot in and of itself amounts to wilful and wanton conduct, but he says the design of the lot, together with allowing an unfamiliar and unaccompanied driver to make the delivery — this combination of facts — constituted wilful and wanton conduct. Hence, the plaintiff argues, if these facts are established, the jury is within its province in bringing in a verdict based on wilful and wanton conduct.

Although no precise definition of wilful and wanton conduct is possible, what constitutes wilful and wanton conduct has been described or summed up in many Illinois cases. It is clear that it is broader than ill will, for some of the cases contain no element of ill will; on the other hand, it goes far beyond mere inadvertence such as we find in the case of ordinary negligence, for it requires a conscious disregard for the safety of others.

The recent case of Hocking v. Rehnquist (1969), 44 Ill.2d 196, 201, cites the language of Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 583, as to what amounts to wilful and wanton conduct:

“ ‘A wilful or wanton injury must have been intentional or .the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care, to prevent it or a failure to discover the danger through recklessness, or carelessness when it could have been discovered by the exercise of ordinary care.’ ”

In his charge to the jury, the trial court gave the IPI instruction 14.01 as follows:

“When I use the expression wilful and wanton conduct’ I mean a course of action which shows an utter indifference to or conscious disregard for the safety of others.”

This instruction was objected to both as to form and as going beyond the scope of the evidence.

While we agree with the plaintiff that whether certain specific acts amount to wilful and wanton conduct is a question for the jury to determine (Blitenthal v. Dressler (1973), 18 Ill.App.3d 751; Richichi v. City of Chicago (1964), 49 Ill.App.2d 320; Ficht v. Niedert Motor Service, Inc. (1962), 34 Ill.App.2d 360) this statement is subject to the general rule established by the case of Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494. That case, in discussing and summing up the several viewpoints in various jurisdictions and the inconsistencies in prior Illinois decisions on the question of when the issue of negligence or wilful and wanton conduct may properly be removed from the consideration of the jury, said, at page 510:

“Nor, as earlier stated, does it seem to us that the any-evidence rule or any of its variants (no conflict in the evidence; scintilla rule) is entirely satisfactory, for literal application thereof prohibits direction of a verdict even though the evidence relied upon in opposition is so overwhelmingly rebutted that no verdict based thereon could possibly stand. In such instances no action other than a directed verdict is consonant with efficiency in our judicial system and with a fair and expeditious termination of litigation.
Rather, we believe the rule is best which in some form finds favor in other States heretofore indicated and which has, in part, been heretofore recognized in this State. In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

While the above stated quotation refers to directed verdicts and judgments n.o.v. an even greater degree of proof should be required in denying a motion for a new trial. The court in the Pedrick case in commenting on the degree of proof required for granting a new trial, as compared with the directing of a verdict, said, at pages 509-10: “[W]e believe a more nearly conclusive evidentiary situation ought to be required before a verdict is directed than is necessary to justify a new trial. It is not our intention by this opinion to alter this concept.” The Pedrick case has not been overruled nor qualified to our knowledge and was quoted with approval in Hocking v. Rehnquist, supra, and Breslin v. Bates (1973), 14 Ill.App.3d 941.

Applying the standard of Pedrick to the necessarily broad and general definitions found in the Illinois cases as to what constitutes wilful and wanton conduct, we must determine whether, in the light of all the evidence adduced, when viewed in its aspect most favorable to the plaintiff, a verdict for the plaintiff based on wilful and wanton conduct cannot stand. If so, the issue of wilful and wanton conduct should not have been submitted to the jury.

The plaintiffs theory of the case on wilful and wanton conduct, as counsel’s closing argument and the appeal brief disclose, is based on the idea that the defendant’s driver was distracted and uncertain when he approached the turning point, due to the combination of (1) an entry point which was designated “one way” in the other direction and (2) the driver’s unfamifiarity with the location of his required turn into this lot. By allowing these two conditions to exist simultaneously, the plaintiff says, the defendant invited an accident and is therefore guilty of wilful and wanton conduct. The plaintiff concedes, by implication, that the design of the lot is not in and of itself sufficient basis for a charge of wilful and wanton conduct. This is obvious, for actually the lot was designed Hke other parking lots with an exit and an entrance, the exit being marked, “One Way — Do Not Enter” with an arrow showing the direction of normal traffic flow. However, the lot was too small for the defendant’s large rigs to turn around behind the building unless entry was made at the point marked, “One Way — Do Not Enter.” The purpose of this sign and the direction of traffic was obviously intended for customers of the store, the general public. The undisputed evidence was that the Jewel Tea trucks made their deliveries about 7 to 7:30 A.M., this being before the store was open for business. It is not the plaintiffs theory, and no evidence was submitted, that the plaintiff was induced to believe through the sign, “One Way — Do Not Enter,” that the defendant’s truck would not turn at that point. Indeed, the plaintiff testified that he did not see any turn signals being given by defendant and his explanation of the accident appears to be, not that the defendant turned at the wrong place, but that he (the plaintiff) did not expect the defendant to turn at all.

The unexpectedness to the plaintiff of the turn is in keeping with plaintiff’s theory that the driver of the trailer was uncertain as to the proper turn-in, that he was searching for the right place, and, having found it unexpectedly, he turned on his signals and immediately made his turn. But, the plaintiff’s surprise at the driver’s turn is not evidence that the driver was confused or distracted. The plaintiff testified he did not observe any signal at all; the driver testified he put his signal on when he started to veer into the inner lane, about 95 yards before his turn, and the one eyewitness, other than the parties, stated he noticed the turn signals go on prior to, but maybe as little as 2 or 3 seconds before the driver started his turn. Had the driver’s conduct indicated in any way or his testimony acknowledged that he was confused or uncertain in making his turn, this would be evidence which might be connected up with the use of the wrong way entrance and the driver’s unfamiliarity with the scene, in fashioning a theory of wilful and wanton conduct on the part of the defendant Jewel on the theory that by using the awkward entrance and then sending a new driver to contend with it, defendant invited the accident. But, there is no reason to suppose from the record itself that the driver was worried, uncertain or confused. He did not so indicate in his testimony. In answer to the question from defense counsel, “In other words before you turned did you notice that you had the arrows pointing against you?” the driver answered, “I didn’t pay much attention to the arrows.” Nowhere is there any evidence to sustain the plaintiff’s theory that the driver was uncertain, bewfidered or distracted by the situation of making his turn into an unfamiliar driveway. He testified he had been told by a feUow driver to turn into the second driveway — the one past the entrance driveway — and this is what he did. We cannot, therefore, add to the design of the lot the uncertain state of mind of the driver due to his unfamiliarity with the proper entrance point because there is nothing in the record itself to indicate the driver was uncertain, puzzled or distraught by the circumstances. In view of this being a driver of some 19 years experience it is not to be assumed that he was so disturbed by having to go into an entrance marked, “One Way — Do Not Enter,” that he neglected to exercise his usual professional skills, especially since the reason for doing so was explained beforehand by a fellow driver. The driver only did what he had in mind to do from the beginning of the trip.

Whether a count of wilful and wanton conduct could be supported on the basis of a misuse of an exit if no precautions were taken and the injury occurred as direct result of such misuse, we need not decide for aside from the fact that such is not the plaintiffs theory of the case for wilful and wanton conduct, there is no evidence that the exit was misused in such a way as to cause injury to the plaintiff, and we do not see how the theory of wilful and wanton conduct can be predicated on the mere fact that during the early morning hours the Jewel drivers used what is normally the exit as an entrance. There is no showing that this misuse induced the accident. Had the sign “One Way — Do Not Enter” not been there at all and the driver had made the same turn at the same time and without giving a timely signal, the same result would have occurred, without any effect at all from the design of the lot. While the jury found that the conduct of the driver was negligent, there is no evidence tending to show that his alleged negligent conduct would have been any different if the sign in question had not been there. The driver’s testimony was that he was looking for the second driveway. When he found it he turned. The design of the lot is not really involved at all.

It appears to us, therefore, that there was no basis for the instruction to the jury on the issues of wilful and wanton conduct. Under the standard of the Pedrick case, we believe the issue of wilful and wanton conduct could not be sustained on the basis of the present trial record. It was, therefore, error for the trial court to instruct the jury on this issue.

Where a complaint is in two counts, one based on simple negligence and the other on wilful and wanton misconduct, the law presumes that a general jury verdict is based on the wilful and wanton count (Greene v. Noonan (1939), 372 Ill. 286, 300). By giving the instruction on wilful and wanton misconduct the trial court virtually eliminated any question of the plaintiffs contributory negligence, yet the record indicates this was a question not free from doubt. Moreover, it is well known that the existence of a malice count often induces a higher jury verdict than might result from a case based on simple negligence. It seems obvious, therefore, that if not legally justified, the trial court’s denial of the motion to remove the wilful and wanton issue from the jury’s consideration was prejudicial to the defendant.

For the reasons expressed above, the judgment of the trial court is reversed and this cause is remanded for a new trial.

Reversed and remanded.

GUILD, J., concurs.

Mr. JUSTICE SEIDENFELD

dissenting:

I dissent. Whether there has been wilful and wanton conduct in any given case necessitates close scrutiny of the facts disclosed by the evidence since in most instances they are wholly dissimilar from case to case. (Mower v. Williams (1949), 402 Ill. 486, 489; cf. Gaiennie v. Fringer (1955), 5 Ill.App.2d 403, 412.) Applying the Pedrick (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510) rule to the evidence in this record, I would reach the conclusion that the trial court did not err in allowing the jury to decide the issue of wilfulness and wantonness. The rule requires the evidence to be viewed in its aspect most favorable to the plaintiff.

The majority opinion goes into the conflicting evidence at great length to reach the conclusion that it overwhelmingly favors the defendant on the wilful and wanton issue. The trial court, however, may not substitute its judgment for that of the jury if there is any substantial factual dispute. (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 504.) The trial court recognized this, but the majority, in my view, has not, and has substituted its judgment for that of the jury.

The evidence in its aspect most favorable to the plaintiff, however, is that just prior to the accident, the defendant driver was looking for the proper entrance. Defendant testified that he first saw plaintiff when his tractor was on the apron of the driveway to the parking lot. Yet, a disinterested witness who was driving behind the defendant testified that he saw the truck as it started its immediate turn and moved across the oncoming lanes, and that he was able to see the motorcycle. The defendant drove his tractor and trailer across oncoming lanes of traffic without stopping. He knew the size of his truck as well as the time which would be required for his truck to clear the oncoming lanes. Notwithstanding his duty to be sure that no traffic was approaching from any distance which would result in a collision while his vehicle blocked the lanes of traffic, he made the turn without stopping in flagrant disregard of that duty.

The evidence also denotes an emergency situation created by the defendant, and supports the propriety of allowing a factual determination of the wilfulness and wantonness issue. See Gaiennie v. Fringer, 5 Ill.App.2d 403, 411; Haskett v. Baker (1971), 1 Ill.App.3d 441, 443. Contrast Hocking v. Rehnquist (1969), 44 Ill.2d 196, 201, which involves an emergency situation not of defendant’s own creation.

Under all the circumstances, I would conclude that the evidence is not overwhelmingly in favor of the movant, and that therefore the question of wilfulness and wantonness becomes a factual question which was properly submitted to the trier of the facts and which the jury resolved in favor of the plaintiff. (See Delany v. Badame (1971), 49 Ill.2d 168, 177; Chmiel v. Pierce (1973), 9 Ill.App.3d 130, 133.) I would therefore affirm the judgment below. ■ '


source: Caselaw Access Project

author: Mr. JUSTICE ALLOY

license: Public Domain

text:
    Chester O. Hale et al., Plaintiffs-Appellees, v. Lula L. Ault et al., Defendants-Appellants.
    (No. 74-102;
    Third District
    November 14, 1974.
    Richard Whitman, of Kritzer, Stansell & Critser, of Monmouth, for appellants.
    Dan A. Ribble, of Long & Schrager Assoc., of East Moline, for appellees.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of Warren County in a forcible entry and detainer suit ordering that plaintiffs, Chester O. Hale and Genevieve A. Hale, were entitled to recover possession of a farm located in Warren County from defendants, Lula L. Ault and Russell F. Ault. Two issues are presented on appeal, i.e., (1) does the court have jurisdiction to hear this appeal? and (2) was the trial court correct in finding that plaintiffs were entitled to possession in the forcible entry and detainer action?

From the record it appears that a Mr. Sands became the owner of the farm lands involved in this action sometime prior to October 2, 1970, but lost title to the property in a bankruptcy proceeding. People named Coffman purchased the premises at the sale conducted by the Trustee in Bankruptcy. They entered into an agreement with Sands by the terms of which the Coffmans agreed to sell the land to Sands on a contract based on payment of semi-annual installments. The title to the land was to be transferred when the purchase price was paid. Time was of the essence and the contract could be forfeited at the option of the vendors upon default of the vendees. No method of forfeiture was specified in the contract.

It appears that Sands was unable to make the payments due July 1, 1971 and January 1, 1972, and that he remained in possession of the premises until May 5, 1972, when he assigned the contract to the Hales. The Coffmans accepted the assignment and promised to convey to the Hales by warranty deed upon receipt of an amount certain at 7% interest. The amount of interest was reduced from 9% for which Sands had become obligated under his contract. It is not clear from the record as to whether the Hales were subject to the same installment schedule as Sands had been. The Hales made no payments and were unable to obtain financing. In the hearing on the cause, the trial court was not certain whether the Hales were actually in default, for the reason that the evidence was not clear as to whether the Hales were required to pay in semi-annual installments. On August 21, 1973, the Coffmans sent, by registered mail, a notice to the Hales stating that the Hales were in default and giving them 30 days from the 21st day of August to become current or that the Coffmans would cause a forfeiture to be made. On September 25, 1973, when no payments had been received by the Coffmans, they sent the Hales a notice of forfeiture. Four days thereafter, the Coffmans conveyed the premises to the Aults by warranty deed.

The Hales had been in possession and had arranged for the planting of crops. While they maintained their residence in Moline, Illinois, they were frequently on the farm and performed repair work thereon. On October 1, 1972, the Aults entered onto the premises without any notice or consent of the Hales and began to harvest the crops planted by Chester Hale. Thereafter, plaintiffs brought the forcible entry and detainer action against the Aults. As noted, the possession taken by the Aults was without the consent of the Hales and against their express objections. In April, 1974, the Hales tendered the past-due amount to the Aults who refused to accept the tender. In May 1974, the Hales brought a forcible entry and detainer action as against the Aults. The trial judge found in favor of the Hales as against the Aults, and this appeal ensued.

A primary issue before the court is whether it has jurisdiction to hear this appeal. Prior to the time that this cause came on for consideration on appeal, on July 5, 1974, plaintiffs-appellees Hales filed a motion to dismiss the appeal in this court. Objections were filed to such motion and the motion to amend a notice of appeal was filed by defendants-appelIants, the Aults. At that time, this court had no opportunity to examine the briefs and abstract of record. As a matter of fact, the brief of appellant was filed on July 5 and the brief of the appellees Hales was filed on August 30, 1974. This court, on July 23, 1974, had entered an order granting leave to appellant to amend the notice of appeal, and the motion to dismiss the appeal was then denied. In tire brief of appellees Hales, the issue of the jurisdiction of this court to hear the appeal is again raised, and upon review of the record in this cause this court has .determined that its previous order had been entered improvidently, and that this court should now reconsider the issue relating to jurisdiction and the notice of appeal on the basis of adequate information now furnished by the parties to the cause. The order of July 23, 1974, allowing leave to amend the notice of appeal by appeHants and denying the motion of appellees to dismiss the appeal is vacated.

As indicated in the course of this opinion, the Hales appellees contend that this court lacks jurisdiction to hear this appeal for the reason that appellants Aults are attempting to appeal from a memorandum opinion and not from a final judgment. The record on appeal filed in this cause discloses that on November . 30, 1973, the defendants Aults filed a post-trial motion in the trial court and that a hearing was held on such motion on February 7, 1974, at which time the court took the motion under advisement. The trial court filed a memorandum opinion and in that memorandum opinion requested that an order be prepared for entry in the case. On February 17, 1974, the Aults-defendants filed their notice of appeal stating that they wished to appeal from the “judgment in this case in favor of plaintiffs Chester O. Hale and Genevieve A. Hale, entered February 8, 1974.” No order was in fact entered on February 8, 1974, and a final order, as requested by the court, was first entered-ón March 11, 1974.

It is thus evident that when the order of the trial court was entered denying defendants’ post-trial motion, defendants had already filed their notice of appeal which related to a judgment which was not then in existence. Plaintiffs contend that since the notice of appeal does. not refer to an appealable judgment or order, an appeal based upon such notice is predicated upon non-éxistent jurisdiction. (People v. Curtis, 341 Ill. 628.) It is also contended by plaintiffs that this appeal should be dismissed even if plaintiffs had not brought the question before the court. (See In re Estate of Shellaberger, 331 Ill.App. 1, 4, 72 N.E.2d 220.) As indicated, on February 8, 1974, there was no judgment entered in the trial court.

Plaintiffs contend that the court lacked jurisdiction to hear the appeal and that defendants request to amend came too late. Defendants conceded that the notice of appeal was from a non-appealable order and that defendants intentionally filed a notice of appeal prematurely. The time for filing a proper notice of appeal began to run on March 11, 1974, when the final order was entered; As we have indicated, defendants amended notice of appeal was filed on July 9, 1974. Plaintiffs contend that the motion to dismiss the appéal should have been allowed and the motion has been renewed by plaintiffs, and, upon reconsideration by this court, this court has determined that the motion to dismiss the appeal should be granted, and now in fact concludes that such appeal should have been and should now be dismissed. (See People v. Deaton, 16 Ill.App.3d 748, 306 N.E.2d 695, emphasizing appeal notice after judgment.) It - is also rather obscurely contended by appellants Aults that the effect of filing the notice of appeal waived their post-trial motion and made final the trial court’s “original judgment.” This apparently refers to the judgment referred to in the notice of appeal of February 8, 1974. Since no such judgment was entered and a final order was first entered on March 11, 1974, it was obvious that this argument was unavailing.

We recognize that Supreme Court Rule 301 (Ill. Rev. Stat. 1973, ch. 110A, par. 301) makes the filing of a notice of appeal jurisdictional. As the issue is now presented to' this court upon review of the entire record, it appears that even under Supreme Court Rüle 303(c)(4) (Ill. Rev. Stat. 1973, ch. 110A, par. 303(c)(4)), an amendment may not be made to avoid notice of appeal by an order entered after the date of filing of such notice of appeal. We agree with the contention of plaintiffs that to grant such amendment would be tantamount to allowing defendants to confer jurisdiction upon the court where none had existed before. Amendments would normally relate back to the time of the filing of the notice of appeal. If appellants were allowed to cause their amendment to the notice of appeal to include the order of March 11, 1974, such amendment would in fact not relate back to the notice of appeal which was filed on February 17, 1974, which referred only to a judgment supposedly entered on February 8, 1974. Obviously, the rule permitting an amended notice of appeal under Supreme Court Rule 303(c)(4) was designed to permit correction of omissions from the notice of appeal and not to allow the correction or implementation of a notice of appeal which, by a defendant’s own admission, had been intentionally filed prematurely. As plaintiffs contend, to allow amendment of such notice of appeal in this court would amount to sanctioning the filing of a notice of appeal at any time during the proceedings at the trial level. This could lead to strange results not contemplated in the Supreme Court Rules and not consistent with the basic premise that a filing of a notice of appeal is jurisdictional.

We should note also that if the original notice of appeal was designed to refer to the memorandum opinion of the trial court which was dated on February 8, 1974, it would still not be helpful since a memorandum opinion alone is not a final order or judgment. The memorandum opinion simply requested that an order be prepared and the judgment was not entered until such order was in fact prepared and filed. In this case, it was on March 11, 1974.

Defendant cites the case of Kubala v. Dudlow, 17 Ill.App.2d 463, 150 N.E.2d 643, as a precedent for allowing the delayed notice of appeal in the instant case. In the Kubala case, however, the trial court on August 13, 1957, allowed defendant’s motion to strike and dismiss. On September 20, 1957, plaintiffs filed their notice of appeal. Plaintiffs, in that case, having chosen to stand upon their complaint, the trial court entered a judgment on October 31, 1957. Then, well within the time limit then fixed for filing a notice of appeal, plaintiffs filed an amended notice of appeal from the order of October 31, 1957, the date upon which the judgment was entered. The appellate court ruled that it would treat the amended notice of appeal as the original notice and ignore the abortive notice of September 20, 1957. This resulted because plaintiffs had filed their amended notice of appeal within the time allowed for the filing of the original notice of appeal.

In the cause before us, the appellants did not seek to file an amended notice of appeal until long after the period for filing had expired. As a result, therefore, in this case, we conclude that this court, to prevent confusion and to follow consistently the precedents and the Supreme Court Rule, should in fact dismiss the appeal of defendants-appellants.

The appeal of defendants in this cause is, therefore, dismissed for the reasons stated herein.

Appeal dismissed.

STOUDER and DIXON, JJ., concur.


author: Mr. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Hoye Wood, Defendant-Appellant.
    (No. 12316;
    Fourth District
    November 27, 1974.

      Lawrence E. Johnson and Associates, of Champaign (L. Keith Hays, of counsel), for appellant.
    Robert G. Gammage, State’s Attorney, of Clinton (Kenneth E. Baughman, of counsel, assisted by Douglas Gift, Charles Gustafson, and Bruce Gammage, Senior Law Students), for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Defendant was indicted, tried and found guilty in a bench trial of three counts of aggravated battery and one count of disorderly conduct. After a lengthy presentence hearing, defendant was sentenced to 2 years’ probation, subject to certain conditions and fined $500. Defendant appeals from his conviction. It is urged on appeal that the trial court erroneously found that defendant’s belief that it was necessary to use deadly force calculated to prevent death or great bodily harm to himself was unreasonable, and that defendant’s guilt was not established beyond a reasonable doubt. We do not agree.

The altercation that gave rise to this cause took place outside Mary’s Tavern located in Clinton, Illinois, where defendant beat and kicked Columbus DuBois, a 78-year-old black male. The incident started inside the tavern when DuBois was verbaHy harassed by defendant. Defendant and Ms two companions were ordered to leave the tavern by the proprietress. They refused to go. Defendant persisted in harassing DuBois by demeaning Ms race. Finally, defendant approached DuBois, and the latter turned and pulled an open pocket knife. The proprietress took DuBois. by the arm and told him to leave in order to avoid any serious trouble. He put his knife away and left the premises. Thereafter, defendant and Ms confederates were ordered to leave which they did.

Once outside, defendant accosted. DuBois by striking him in the face with his fist. He then kicked at DuBois’ head, once the latter was down. After DuBois had been beaten into unconsciousness, defendant and the other two individuals drove away in a pickup truck. The police found DuBois unconscious and bleeding from Ms face and head, and a knife was found under Ms body. DuBois sustained a permanent eye injury as the result of the incident, as well as other assorted cuts and abrasions.

Mr. DuBois was approximately 5'2" tall, having a small frame. Defendant stood 6'2W' tall and weighed approximately 245 lbs.

Defendant was subsequently indicted on one count of attempted murder, five counts of aggravated battery, and one count of disorderly conduct.

At trial, the State called Joyce McGarry, the proprietress of the tavern. She .related that defendant started an argument with DuBois which had racial overtones and that DuBois became hostile when defendant persisted in harassing him. She testified that after clearing DuBois and defendant out of the tavern, she observed defendant and DuBois standing outside and continuing their argument. She saw defendant hit DuBois in the face. She ran outside and observed defendant kicking DuBois in the head several times, and each time cursing, “You nigger, son-of-a-bitch, you nigger.” Mrs. McGarry stated she did not observe a knife in DuBois’ hand when viewing him through the window. She had seen him put away what appeared to be a knife as he left the tavern.

Next, Doug Cox was called by the State. He testified that on the night in question, he was returning from a show when he heard a commotion going on in front of Mary’s Tavern. He viewed defendant kicking DuBois wMIe he lay on the sidewalk. He had not seen a knife in DuBois’ hand. He watched defendant and defendant’s two companions drive away in a truck. He went over to DuBois and found that he was bleeding profusely. Cox stated that he did see a knife lying on the pavement next to DuBois. The knife was open. Cox testified that the knife was the same one Mrs. McGarry had identified as being one DuBois had when he was in the tavern.

The State called DuBois as the final occurrence witness. He corroborated Mrs. McGarry’s testimony. He stated that defendant began harassing and directing racial slurs at him while he was at the bar in Mary’s Tavern. DuBois admitted taking a knife out in the bar when he thought defendant and his two companions were “corraling” him. However, he stated he closed the knife and put it in his pocket as he left the premises. Once outside, DuBois stated that he was struck in the face by defendant’s fist and then defendant kicked him while he was on the pavement.

DuBois stated that as a result of the beating he sustained indicated damage to his eye. This conclusion was corroborated in the testimony of Dr. Robert S. Bailer, an eye surgeon and ophthalmologist who treated DuBois for his eye condition.

After Dr. BaUer’s testimony, the State called several other witnesses and then rested. Thereafter, the defendant offered a motion for a finding of not guilty as to all counts of the indictment. The motion was granted as to Counts IV and V, both charging defendant with aggravated battery.

Defendant’s case consisted of the testimony of two witnesses: William Fair, a co-defendant, and defendant, who testified on his own behalf. The thrust of the defendant’s case-in-chief was that defendant acted in self-defense and was forced to use force reasonably calculated to prevent DuBois from inflicting great bodily harm upon the person of defendant.

Fair’s testimony was at odds with the testimony elicited from the State’s witnesses. He, in effect, testified that it was DuBois who started the argument which occurred in Mary’s Tavern, and it was DuBois who interjected the element of deadly force into the argument by the threatening use of a knife. According to Fair, defendant acted in self-defense.

Defendant testified that the entire incident began over a misunderstanding. He submitted that he had stated to DuBois, “Nice meeting you, Columbus, I got a lot of negro friends.” According to defendant, DuBois thought he had said “nigger.” Defendant said he immediately apologized for the misunderstanding.

Concerning the altercation that occurred outside the tavern, defendant contended that DuBois waited outside, and when defendant went outside, DuBois pulled a knife and said he was going to cut defendant up. DuBois. aHegedly began to swing at defendant with the knife. Defendant stated his natural instinct was to swing at DuBois in self-defense. He stated his blow hit DuBois in the eye. Once DuBois was on the ground, he stated he kicked the knife out of DuBois’ hand. Wood státed that he and his two companions fled because they were in a strange town and feared that the authorities would be unsympathetic because “they had hit an old man.”

. On cross-examination, defendant stated that he kicked the knife out of DuBois’ hand so that it could not be used on him as he walked away. Defendant was asked whether he was afraid of a man the size of DuBois, and defendant replied, “I am not afraid of anyone.” Thereafter, the defense rested.

The State called three rebuttal witnesses. All had previously testified, and they basically reiterated their initial testimony.

After closing arguments, the court found Fair not guilty as to all counts, and found defendant not guilty as to Count I and guilty as to Counts II, III, VI and VII.

The court specifically found that DuBois suffered severe and permanent injuries constituting great bodily harm. Furthermore, the court found that under the circumstances, defendant used excessive force. The court stated:

“Now, taking Mr. Wood’s theory of self-defense in its most favorable aspect to him, this Court feels that he was justified in the first hitting if Mr. DeBois struck at him as some of the evidence indicates, but his right to self-defense stopped there in this Court’s opinion because self-defense under the Illinois law does not permit him to pursue it against an elderly man laying on the ground semi-conscious and bleeding. The force that was used then was not justified as a matter of self-defense, Mr. Wood could have protected himself in a number of ways after the initial blow. * *

The court then went on to find:

“Taking that in its most favorable aspect, the Court considers the first blow Mr. Wood struck may have been justified in self-defense but not the other blows. He pursued it with unjustifiable force and unreasonable force thereafter and therefore at that point he was the aggressor and he could have withdrawn.
The evidence of Joyce McGarry is most credible. She had the best opportunity to observe, and she is least interested in the outcome of the case. Her testimony is believable.
Because the testimony was that the injuries were severe and permanent and, possibly, even the extent of which are not known at this time, they constitute great bodily harm. Therefore, the other Counts II, III and VI, this Court feels, were proven beyond a reasonable doubt.
As to Count VII this is a disorderly conduct charge, and I think it was proven, also, beyond reasonable doubt.
That will be the finding of the Court.”

Defendant urges that the trial court misperceived the law of justifiable use of force when it separated the altercation into two parts, to wit: the initial blow by defendant to Mr. DúBois, and the subsequent ticking by defendant to DuBois’ body. Defendant argues that a person is justified in the use of force to defend against the unlawful use of force likely to cause death or great bodily harm, and that he is not required to retreat while he reasonably believes the aggressor is still armed and has the capacity to renew the attack.

Section 7 — 1 of the Criminal Code states:

• “Use of Force in Defense of Person.] A person is justified in the use of force against another when and to the extent that he reasonably beheves that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably ' beheves that such force is necessary to prevent imminent death or great bodily harm to himself or another; or the commission of a forcible felony.” Ill. Rev. Stat. 1971, ch. 38, 7 — 1. •

The critical language found in the statute is that a person who resorts to the use of force which is intended or likely to cause death or great bodily harm must do so only if “he reasonably believes that such force is necessary ® 0 (Emphasis supplied.) Whether an individuals befief is reasonable raises a question of fact. (People v. Brumbeloe, 97 Ill.App.2d 370, 240 N.E.2d 150; People v. Taylor, 3 Ill.App.2d 734, 279 N.E.2d 143.) A finding by the trial court' as to whether or not defendant’s belief was reasonable wül not be reversed unless-it is clear that the finding was erroneous.

In the case at bar, the trial court determined that defendant’s conduct was unwarranted under the circumstances and patently unreasonable. The trial court correctly ruled that an individual’s belief must be reasonable as to when to resort to force, and the force used must be commensurate with the force encountered. Defendant was found to have used excessive force, and this finding will stand.

Next, defendant contends that the State failed to establish his guilt beyond a reasonable doubt because the State did not overcome the defense of self-defense.

It is true that self-defense is an affirmative defense which must be rebutted by the State beyond a reasonable doubt. (People v. Brown, 19 Ill.App.3d 757, 312 N.E.2d 789.) However, the testimony of but one credible witness is enough to convict a defendant. People v. Novotny, 41 Ill.2d 401, 244 N.E.2d 182.

There were two eyewitnesses — Joyce McGarry and the. victim— who testified that defendant used excessive force; and their testimony was corroborated as to the various details by,the testimony given by Mr. Cox. Essentially, the court was confronted with a clear-cut question of credibility. The testimony of the State’s occurrence witnesses was totally at odds with the testimony given by Fair and defendant. The court resolved these conflicts in favor of the State. We wiH not substitute our judgment for that of the trier of fact on issues of credibility unless proof was so unsatisfactory as to warrant a reasonable doubt of guilt. People v. Reese, 54 Ill.2d 51, 294 N.E.2d 288.

We note sua sponte that the trial court’s judgments of convictions were in error. Defendant was found guilty on three counts of aggravated battery and one count of disorderly conduct, and subsequently thereto judgments of conviction were entered on all counts. The trial court may not enter judgment on more than one offense arising from the same transaction, even if only one sentence is imposed. (People v. Lilly, 56 Ill.2d 493, 309 N.E.2d 1.) Accordingly, the judgment of conviction as to two of the three counts of aggravated battery and the one count of disorderly conduct must be vacated.

The circuit court’s judgment of conviction as to a single count of aggravated battery is affirmed; the judgments on aH other counts are vacated and this cause is remanded for the issuance of an amended mittimus.

Judgment affirmed in part, vacated in part, and remanded with directions.

TRAPP, P. J„ and SIMKINS, J., concur.


author: Mr. JUSTICE DIERINGER

text:
    Ampex Corporation, Plaintiff-Appellee, v. Office Electronics, Inc., Defendant-Appellant.—(OEI Sales Corporation, Defendant.)
    (No. 59478;
    First District (4th Division)
    November 13, 1974.

      Petit and Safeblade, of Chicago (Edward Atlas, of counsel), for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Michael P. Connelly, and Edward J. Zulkey, of counsel), for appellee.
   Mr. JUSTICE DIERINGER

dehvered the opinion of the court:

This is an appeal from a judgment entered by the Circuit Court of Cook County. Plaintiff brought suit against the defendants to recover the value of magnetic tapes sold by plaintiff to both defendants. FoHowing a jury trial, judgment was entered in favor of plaintiff against the defendants. This appeal is taken by defendant Office Electronics, Inc. Defendant OEI Sales Corporation has not appealed.

The issues presented on appeal are (1) whether the principle of “piercing the coiporate veH” can be applied to impose liability upon defendant Office Electronics, Inc.; and (2) whether the trial court improperly instructed the jury and improperly refused to submit special interrogatories to the jury.

Office Electronics, Inc. (hereinafter referred to as “defendant”), has for several years been in the business of manufacturing tabulating cards and continuous business forms for use in computers. In 1961 defendant began purchasing magnetic tapes from the plaintiff, Ampex Corporation, under a franchise arrangement. In July, 1966, OEI Sales, an Illinois corporation, was formed as the marketing arm of the defendant. Robert Houston, the chairman of the board and president of the defendant, was the treasurer of OEI Sales. Two of the three board of directors of the j new corporation were officers of the defendant. OEI Sales had an initial capital of $16,000. Fifty-one percent of its stock was owned by the defendant. From the outset, OEI Sales planned to inventory $20,000 of magnetic tapes, though it had no assets other than the $16,000 in capital. The defendant advanced money to OEI Sales for its commission sales j accounts. During the first half of 1967 the defendant was advancing moneys to OEI Sales amounting to approximately $14,000 per month.

Shortly after the incorporation of OEI Sales, plaintiffs sales manager met with officials of defendant and OEI Sales. At this time the plaintiff refused to grant OEI Sales corporate credit. Defendant therefore agreed to inventory $20,000 worth of tapes in its own warehouse for OEI Sales. The tapes were delivered to the defendant, and statements and invoices sent each month to the defendant. Defendant did all the billing and shipping to customers.

During the following 90 days, the defendant experienced difficulties in maintaining control of purchases of tapes made by OEI Sales from the plaintiff. To remedy this difficulty, a meeting was held in November, 1966, between officials of the three corporations. The defendant informed plaintiff and OEI Sales that verbal orders made by OEI Sales and accepted by the plaintiff had to stop, and plaintiff should ship tapes only on written purchase orders.

Notwithstanding the November meeting, plaintiff continued to accept verbal orders from OEI Sales. On March 9, 1967, a second meeting was held between officials of the three corporations. Defendant informed \ plaintiff and OEI Sales that it would pay for all purchases made prior to ) March 9, but would not be responsible for any shipments made by plaintiff after March 9, unless made upon a written purchase order of the defendant. Plaintiff agreed to such procedure. To confirm the agreement, defendant sent plaintiff a letter describing the arrangement agreed to at the meeting. Plaintiff received the letter.

Approximately 3 months after the defendant’s letter of March 9, 1967, defendant sent plaintiff a check dated June 3, 1987, for $20,000. On June 7, 1967, defendant paid plaintiff another $20,000. The checks did not indicate they were paid to any specific invoice. On July 18,1967, plaintiff sent defendant a letter requesting that defendant arrange for payment of outstanding receivables overdue. Upon receipt of the money, plaintiff was to release its credit hold on defendant. On July 20, 1967, defendant sent plaintiff a check in the amount of $22,000, and on August 2, 1967, a check for $2,250.

In February, 1969, plaintiff commenced a lawsuit against Office Elecironies, Inc., and OEI Sales, alleging the defendants still owed plaintiff $49,366.33 for magnetic tapes purchased on account. Following a jury trial, judgment was entered against both defendants. Defendant Office Electronics, Inc., appeals from that judgment. OEI Sales has not appealed.

The defendant first contends the doctrine of “piercing the corporate veil” cannot be applied in the instant case, as there was a complete absence of fraud, deception or misleading on the part of the defendant. In support of its contention, the defendant relies primarily on the decision in Superior Coal Co. v. Department of Finance (1941), 377 Ill. 282, 290, wherein the supreme court held:

“«a # # £he courts will ignore the fiction of corporate entity only with caution, and when the circumstances justify it, and when it is used as a subterfuge to defeat public convenience, justify wrong, or perpetrate a fraud.’ ”

Defendant further cites numerous cases wherein the court stated that fraud, deception or misleading are essential ingredients to the doctrine of “piercing the corporate veil.”

We believe there was sufficient evidence to apply the doctrine of “piercing the corporate veil” in the case at bar. It is a well-established rule in Illinois that “<e * # it is sufficient in order to treat one corporation as the alter ego of another [that] there is such a unity of interest and ownership that the individuality of one corporation has ceased, and * * * the observance of the fiction of separate existence would under the circumstances sanction a fraud by promoting injustice * * (Edwards v. Chicago & Northwestern Ry. Co. (1967), 79 Ill.App.2d 48, 52.) In Holland v. Joy Candy Manufacturing Corp. (1957), 14 Ill.App.2d 531, Mrs. Edith Kanelos was president and a director of Joy Candy Manufacturing Coip. and Joy Candy Shoppes, Inc. Candy Shoppes was the retail outlet of Joy Manufacturing. During the years 1953 and 1954, plaintiff performed advertising services and sent statements covering such services to both corporations. Plaintiff subsequently sued both corporations for the price of his services. Candy Shoppes had no assets, and Joy Manufacturing defended on the theory that plaintiff performed services only for Candy Shoppes. The appellate court recognized the issue as:

“* * * whether the separate corporate entities can be used as a shield against liability, if, under all the circumstances, it would work a fraud upon creditors dealing with them.” (14 Ill.App.2d 531, 534.)

The court held:

“We think the trial court was justified in viewing Candy Shoppes as a mere instrumentality of the other corporation, and that the affairs of the two corporations were so managed and controHed by the same interlocking officers, directors and single stockholder, as to constitute one corporate entity in its dealings with creditors.” (14 Ill.App.2d 531, 535.)

Likewise in the present case, the affairs of Office Electronics, Inc., and OEI Sales were so managed and controHed as to constitute one corporate entity. Two out of the three directors of OEI Sales were officers of the defendant; defendant owned 51% of the stock in OEI Sales; when the plaintiff refused to grant corporate credit to OEI Sales the defendant agreed to inventory $20,000 worth of tapes for the benefit of OEI Sales; defendant advanced moneys to OEI Sales for its commission sales accounts; defendant received merchandise from the plaintiff, along with monthly statements and invoices; and defendant did aH the shipping and biUing to customers. Further, defendant continued to pay for the verbal orders made by OEI Sales, even after the meetings between officials of the three corporations and after defendant sent plaintiff a letter detailing arrangements for doing business in the future. Under these circumstances, we believe it was necessary and correct for the trial court to pierce the corporate veil in order to promote justice.

The defendant next contends the trial court improperly instructed the jury and improperly refused to submit special interrogatories to the jury.

We do not agree with the defendant’s contention. A review of the record indicates that each instruction given by the judge, when considered in its entirety, was clearly proper. (DiPaolo v. Johnson (1973), 15 Ill.App.3d 735.) The record also reveals that the trial court properly refused to submit defendant’s special interrogatories to the jmy. It is well settled that a special interrogatory is not proper unless it relates to one of the ultimate facts upon which the rights of the parties directly depend, and unless some answer responsive thereto would be inconsistent with some general verdict that might be returned upon the issues of the case. (Wicks v. Cuneo-Henneberry Co. (1926), 319 Ill. 344.) The special interrogatories submitted by the defendant did not relate to an ultimate issue of fact, and if answered favorably for the defendant, would not have been inconsistent with the general verdict.

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

Affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Marvin Wright, Defendant-Appellant.
    (No. 58217;
    First District (4th Division)
    November 13, 1974.
    James J. Doherty, Public Defender, of Chicago (Robert Gevirtz, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. GHlis, Mariann Twist, and Nick Iavarone, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

dehvered the opinion of the court:

After a bench trial in the Circuit Court of Cook County, the defendant, Marvin Wright, was found gmlty of grand theft and was sentenced to a term of 1 to 4 years in the penitentiary.

The issues for review are whether the defendant was found guilty of theft beyond a reasonable doubt, and whether the sentence imposed is excessive.

Sylvester Armour testified that at about 10:42 P.M. on January 24,1971, he drove to the Senn Park Nursing Home located at 5888 North Ridge Avenue in the City of Chicago to pick up his wife, who worked there. He was driving a red and black 1968 CadiHac, and because he had just purchased it, there were no Hcense plates on the car. While he was waiting for his wife, a man knocked on the window of the car. As he began to roll down the window, the man puHed open the door and pointed a gun at him. He was told to move over to the passenger side of the car and hand over his money and coat, which he did. The man with the gun got in the driver’s seat, and another man came around to the other side of the car, while a third got in the back seat. After the man on the passenger side of the car had moved away, Armour testified he was able to jump out and run to the nursing home. He saw two individuals drive off in his car and then called the police. Armour later identified the man with the gun as Michael Crawford.

Officer Tansey of the Chicago Police Department testified that on the night in question he and his partner observed two cars heading south on Western Avenue playing bumper tag. This occurred about a mile from the nursing home. The front car was a 1968 or 1969 red Mercury, and the second car was a red and black 1968 Cadillac without license plates. When the officers stopped the Mercury and questioned the occupants,, the Cadillac drove slowly by. After giving them a warning and letting them continue on their way, the officers heard a police radio broadcast that a red and black 1968 Cadillac was stolen during the course of a robbery. Officer Tansey identified the defendant and Michael Crawford as the two individuals he had observed in the Cadillac. He thought Michael Crawford was driving the car at this time.

Officer Max Steele was on patrol in a one-man patrol car on that night and heard the radio dispatch concerning the Cadillac. When he reached the vicinity of Milwaukee and California, he observed the car and gave chase, using his siren and Mars light. He pursued the car down various city streets getting as close as three-fourths of a car length.

When the chase reached Fullerton and ICedzie, another police vehicle joined the chase. At that point a motorist traveling westbound on Fullerton collided with the Cadillac as it emerged from an alley. Officer Steele testified the door on the driver’s side of the car was smashed and both occupants emerged from the passenger side of the car. Although he could not identify the passenger, he did identify Marvin Wright as the driver of the car.

Officer Louis Ferraro arrived on the scene in an unmarked squad car and observed the collision at Kedzie and Fullerton. He testified he saw the driver exit the Cadillac and crawl under a parked car. He got out of his car and chased the passenger, whom he identified as Michael Crawford. Officer Ferraro also testified Crawford had a gun as he came out of the car, but dropped it and then ran away.

Both Crawford and Wright testified that Crawford had driven the car and that Wright had never been behind the wheel. Crawford testified they drove away from the nursing home in the car after it had been left unoccupied with the motor running.

At trial Michael Crawford was found guilty of armed robbery and grand theft, and the defendant, Marvin Wright, was found guilty of grand theft.

The defendant first contends he was not proved guilty beyond a reasonable doubt because there was no evidence he intended to permanently deprive the owner of the car, and there was not sufficient evidence to show he had exclusive control over the vehicle. The defendant states there was conflicting testimony as to whether he actually had control over the car and, therefore, the evidence did not prove beyond a reasonable doubt he had obtained control over the automobile in violation of section 16 — 1 of the Illinois Criminal Code (Ill. Rev. Stat. 1971, ch. 38, ¡f 16 — 1). He argues there was nothing in the record to indicate this was anything more than an ordinary joy ride and his presence in the stolen car, at most, must be construed as criminal trespass. People v. Chandler (1967), 84 Ill.App.2d 231; People v. Johnson (1968), 102 Ill.App.2d 443.

Because intent can seldom be proved by direct evidence, it may be deduced from the circumstances in evidence. (People v. De Stefano (1961), 23 Ill.2d 427.) In the case at bar the defendant was either driving or riding in a car he knew to be stolen. The owner of the car testified he was robbed of his coat and money, and when he fled from his own car, he saw it driven away by two individuals. This is not the case of joy riding when a defendant drives olf in an unoccupied car or merely rides in a car he knows to be stolen. In this case the defendant was present when the car was taken, and it is immaterial whether he was driving. In the case of People v. Scholler (1943), 385 Ill. 93, 96-97, the court stated:

“The case as to Scholler is distinguishable from the case against Abrams for the reason that Scholler admits that he was in the automobile at the time it was wrecked and while it was being chased for several blocks by the squad car. Scholler admitted that he was one of the occupants of the car. In the absence of a satisfactory explanation of his possession of the car, jointly with others, this was sufficient to raise the presumption of guilt against him. It brought him clearly within the rule, and established joint possession in him, together with the driver of the car. He testified to facts tending to explain such possession. The jury did not however, accept his version of the transaction.”

The defendant also argues the sentence of 1 to 4 years is excessive because of his lack of a prior record and he is now attending the Marion Business College, training to be a tailor.

Conviction of theft candes a sentence of 1 to 10 years when the value of the property exceeds $150. The sentence in this case is well within the maximum limits and cannot be deemed to be excessive in light of the aggravated circumstances surrounding the theft of the car, the ensuing chase, and the flight of the defendant after the crash at Kedzie and Fullerton.

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

Affirmed.

ADESKO, P. J., and JOHNSON, J., concur.


text:
    Barbaba Merrill et al., Plaintiffs-Appellees, v. Allan Drazek, Director, Illinois Department of Personnel, et al., Defendants-Appellants.
    (No. 59667;
    First District (4th Division)
    November 13, 1974.
    William J. Scott, Attorney General, of Springfield (Jerrald B. Abrams, Assistant Attorney General, of counsel), for appellants.
    Davis, Miner, Barnhill & Bronner, of Chicago (Charles Barnhill, Jr., of counsel), for appellees.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from an order entered by the Circuit Court of Cook County declaring the plaintiffs to be employees of the State of Illinois.

The only issue presented on appeal is whether prior to January 1, 1974, the plaintiffs, employees of the Cook County Department of Public Aid, were, for purposes of employee benefits, employees of the State of Illinois or the County of Cook.

On April 28, 1972, seven named plaintiffs who were employees of the Cook County Department of Public Aid filed a class action seeking a declaratory judgment as to whether they were employees of the State of Illinois or the County of Cook. Plaintiffs further sought to enjoin whichever governmental entity was found to be the employer of the plaintiffs from treating them differently than other employees.

A hearing was held on May 9, 1973, to determine the substantive merits of the case. At the close of all the evidence, the court ruled that the plaintiffs were and had been employees of the State of Illinois and were entitled to all job-related benefits of other State employees.

Defendant Allan Drazek, Director of the Illinois Department of Personnel, contends that prior to January 1, 1974, the plaintiffs were employees of Cook County. In support of his contention, the defendant relies on section 12 — 18.1 of the Illinois Public Aid Code (Ill. Rev. Stat. 1971, ch. 23, § 12 — 18.1), which provides in pertinent part:

“The County Department shall consist of a Director and such other employees as shall be determined by the County Board, all of whom shall be employees of the county and appointed in accordance with the law in relation to civil service in the county.” (Amended January 1,1974.)

Defendant maintains the day-to-day control of administration, hiring, firing and promotion within the Cook County Department of Public Aid is exercised by the county department, and therefore the responsibility of providing employee benefits lies with the County of Cook.

Prior to January 1, 1974, section 12 — 18.1 of the Illinois Public Aid Code provided:

“The County Department shall consist of a Director and such other employees as shall be determined by the County Board, all of whom shall be employees of the County and appointed in accordance with the law in relation to civil service in the county. However, the number and compensation of such employees as are assigned to the performance of the functions and duties prescribed in section 12 — 2 of this Code, and to the additional functions set out in section 12 — 18.2 for discharge by the County Department under the supervision of the Illinois Department, shall be subject to prior approval by the Illinois Department. The Illinois Department may prescribe standards of competence and performance which shall be applied in the selection of such employees and in the evaluation of their work and it may withhold State funds for the payment of salaries of any employees who do not comply with the foregoing provisions.”

On January 1, 1974, the Illinois legislature amended section 12 — 18.1 of the Code, expressly stating that employees of the Cook County Department of Public Aid were employees of the State of Illinois. There is no controversy as to the status of the plaintiffs since January 1, 1974, and no question remains as to their right to job-related benefits as employees of the State since that date. We need concern ourselves, therefore, only with the construction of section 12 — 18.1 of the Public Aid Code prior to January 1, 1974. There appears to be a conflict within the section, which requires clarification.

The cardinal rule in construction of Illinois statutes, to which aU other canons and rules are subordinate, is that a statute must be construed so as to ascertain and give effect to the intention of the General Assembly as expressed in that statute. (Gregory v. County of LaSalle (1968), 91 Ill.App.2d 290.) In determining the intention of the General Assembly, recourse may be had to subsequent actions of the legislature. (Bruni v. Department of Registration & Education (1972), 8 Ill.App.3d 321.) When these two rules are appfied to the facts of the present case, it appears that by the 1974 amendment the Illinois legislature made it clear that prior to January 1, 1974, it was the intention of the legislature that employees of the Cook County Department of Public Aid were employees of the State of Illinois. By the language used in the amendment, the legislature made explicit what had been implicit in the statute prior to January 1, 1974. We therefore conclude the statute provided that employees of the Cook County Department of Public Aid were employees of tire State of Illinois.

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

Affirmed.

BURMAN and JOHNSON, JJ., concur.


author: Mr. PRESIDING JUSTICE ADESKO

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harry Broumas, Defendant-Appellant.
    (No. 59661;
    First District (4th Division)
    November 13, 1974.
    James J. Doherty, Public Defender, of Chicago (William D. Trude and Richard D. Kharas, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Thomas D. Rafter, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

Following a bench trial in the Circuit Court of Cook County on September 17, 1973, the defendant, Harry Broumas, was found guilty of reckless conduct (Ill. Rev. Stat. 1973, ch. 38, par. 12 — 5) and discharging a firearm within the city limits, in violation of chapter 193, section 29 of the Municipal Code of Chicago. He was fined $90 for the reckless conduct charge and $50 for discharging the firearm within the city limits.

Defendant brings this appeal contending that:

(1) The State failed to prove him guilty beyond a reasonable doubt of reckless conduct; and
(2) When a State statute expressly permits an individual to fire a weapon in self-defense, a municipal ordinance which prohibits such a discharge is, to that extent, invalid.

The factual situation, as presented at trial, was as follows:

Kiriakos Giannopoulos, who had been charged with battery and disorderly conduct but had been acquitted in this same proceeding, testified that on June 26, 1973, he entered a coffee shop at 231 South Halsted Street, Chicago. The defendant, Harry Broumas, was in temporary charge of the shop. Giannopoulos spoke to defendant, saying, “It’s not good,” following which remark, defendant struck him with an ash tray. Giannopoulos stated that he fell back, with blood dripping on his shirt, and was caught by a friend. Defendant was 78 years old and Giannopoulos was 34 years old.

Defendant left the coffee shop, climbing the stairs to his room above the shop. After this, Giannopoulos started up the same flight of stairs to borrow a clean shirt from a friend, Gus Pappas, who also had an apartment above the coffee shop. At this point he was shot in both legs by defendant who was standing at the top of the stairway.

A different version of the incident was given in defendant’s testimony. He stated that Giannopoulos entered the coffee shop, accused him of being a “stool pigeon” and struck him, knocking him to the ground. In self-defense, defendant struck Giannopoulos with an ash tray. As the fight progressed, a man restrained Giannopoulos and told defendant to leave before Giannopoulos killed him.

After the fight was stopped, defendant testified he went up to his room above the coffee shop. Hearing a great deal of noise on the stairs near his room, defendant picked up his revolver. He looked out and saw Giannopoulos climbing the stairs. Defendant thought Giannopoulos was coming to attack him so he fired two “warning shots” to scare him away. The police then arrived at the scene and Giannopoulos was taken to the hospital to have his injuries treated.

Two other witnesses testified for the State. Officer Spaulak stated that he entered the hotel after hearing two shots. He saw defendant standing at the top of the stairs with a gun in his hand. He -noted some injuries to defendant’s face. Defendant complained of pains in his midsection and told Officer Spaulak that he had fired at Giannopoulos as a warning since he thought Giannopoulos was trying to kill him. The remaining witness, a Mr. Siantos, was present in the coffee shop on June 26, 1973. Though he did see defendant hit Giannopoulos with the ashtray, he did not hear any of the conversation and he denied seeing Giannopoulos attack defendant.

It is defendant’s initial contention that his shooting of Giannopoulos was justified since he reasonably believed that such action was necessary to prevent his imminent death. Section 7 — 1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, §7 — 1) provides as follows:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.” (Emphasis added.)

In light of the above section, we are of the opinion that defendant was not justified in firing upon Giannopoulos and that the trial court was correct in so ruling.

Defendant claimed that he had been attacked by Giannopoulos first. This was denied by Giannopoulos and refuted by the testimony of the only eyewitness introduced at trial. The trial court obviously rejected defendant’s version of the incident in the coffee shop and we find no basis to disagree with that conclusion. However, our focus is not on these events, but on the action of defendant after he had gone up to his room.

Though it was stated by defendant that he fired the shots in self-defense as a warning, he knew or should have known that such action was very likely to result in death or great bodily harm to Giannopoulos. The question then becomes whether or not the use of such force, or deadly force as it is often referred to, was justified in this case.

It is the province of the trial court as the trier of fact to determine, on the basis of the evidence presented and the facts and the circumstances of a given case, whether the use of force was justified as self-defense. (People v. Washington, 27 Ill.2d 104, 108, 187 N.E.2d 739.) The criteria that should be considered in making this determination were noted by Mr. Justice McNamara in People v. Brumbeloe, 97 Ill.App.2d 370, 377, 240 N.E.2d 150:

“The elements justifying the use of force in self-defense are:
1) that force is threatened against a person; 2) that the person threatened is not the aggressor; 3) that the danger of harm is imminent; 4) that the force threatened is unlawful; 5) that the person threatened must actually believe (a) that a danger exists, (b) that the use of force is necessary to avert the danger, (c) that the kind and amount of force which he uses is necessary; and 6) that the above beliefs are reasonable. People v. Williams, 56 Ill.App.2d 159, 205 N.E.2d 749 (1965). If a defender has reasonable ground to believe himself in danger or of suffering bodily harm he may protect himself even if he is mistaken and the danger is only apparent. People v. Lockett, 85 Ill.App.2d 410, 229 N.E.2d 386 (1967).”

It is quite clear that defendant in the instant case was not justified in firing on Giannopoulos since at tihe time there was no “imminent” threat to him as noted in section 7 — 1 of the Criminal Code and in the above case. There is no dispute in the record that the fighting had ceased and that defendant was in his room when he heard someone climbing the stairs. Nonetheless, he left his room, taking a gun with him, and fired after seeing that the man on the stairs was Giannopoulos. Though defendant argues that this action was necessary to prevent an imminent threat to his life, we do not agree.

If we examine the factual situation in People v. Givens, 26 Ill.2d 371, 186 N.E.2d 225, relied on heavily by the defendant in his brief as principal support for this argument, the nature of the “threat” in the instant case, or the lack thereof, may be shown by contrast. In Givens the defendant, an elderly man, observed a younger man “scuffling” with another man in his rooming house. The young man broke away and followed defendant to his room. He blocked the doorway, preventing defendant from entering, and began to advance on defendant despite repeated warnings. Defendant then picked up a gun and fired. The decision in Givens points out that the defendant had shot a man while “repelling [an] invasion of his room” (26 Ill.2d 371, 375) and that the action was motivated by fear of bodily assault as a result of this invasion. In addition it was stated that:

“# # # the fear was enhanced by the physical disparity between the elderly defendant and the robust intruder. Since defendant was in no way physically able to repel the intruder by hand combat, his belief that shooting was the only way to protect himself and to stop decedent was, under the circumstances, not unreasonable.” (26 Ill.2d 371, 376.)

Rather than being faced with an invasion of his room and a man advancing upon him in close proximity, defendant in the instant case left the shelter of his room and shot Giannopoulos without any attempt to warn him to keep away. Giannopoulos had made no attempt to force his way into the room or resume his argument with defendant. There was no need to repel an invasion then or resist an actual assault. Though defendant described the shooting as an attempt to “warn" Giannopoulos, a verbal warning as in Givens would have been the appropriate method if such warning was needed. We agree with the finding of the trial court that there was no threat to defendant that would have justified the shooting as self-defense and that defendant’s conduct in firing was reckless in the extreme.

Defendant also claims that since he was acting in self-defense that the conviction for discharging a firearm in violation of the municipal ordinance was in conflict with State law (section 7 — 1 of the Criminal Code) which permits such a discharge if necessary for self-defense. However, defendant’s claim is predicated on the initial determination that the discharge was in self-defense. Since we found that it was not so justified, no actual conflict can be said to exist in the instant case and defendant’s contention is therefore without merit.

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

Judgment affirmed.

DIERINGER and BURMAN, JJ., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Claude Sneed (Impleaded), Defendant-Appellant.
    (No. 59068;
    First District (1st Division)
    November 18, 1974.
   PER CURIAM.

James J. Doherty, Public Defender, of Chicago (John X. Breslin and Thomas F. Finegan, Assistant Public Defenders, of counsel), for appellant.

Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel, and Larry L. Thompson), for the People.


text:
    Adler Business Machines, Inc., Plaintiff-Appellee, v. Babbey Office Machines, Inc., Defendant-Appellant.
    (No. 58910;
    First District (2nd Division)
    November 19, 1974.

      John W. Pumey, of Chicago, for appellant.
    Teller, Levit & Silvertrust and Louis I. Kessler, both of Chicago, (Arthur Raphael, of counsel), for appellee.
   PER CURIAM.


text:
      In re David Littlejohn, a Minor.
    (No. 60123;
    First District (2nd Division)
    November 19, 1974.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.