author: MR. JUSTICE ABRAHAMSON

text:
    Richard S. Gubbe, a Minor, by His Parents and Next Friends, Robert P. Gubbe and Caroline F. Gubbe, Plaintiff-Appellant, v. Catholic Diocese of Rockford, Monsignor Herman A. Meilinger, Sister Stella Ann, Sister Alfonse, and Paul Johnston, Defendants-Appellees.
    Gen. No. 69-166.
    Second District.
    April 3, 1970.
    Martenson and Donohue, of Rockford (David L. Martenson, of counsel), for appellant.
    Maynard and Brassfield, and Yalden and Ridings, of Rockford, for appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

Plaintiff Richard S. Gubbe on March 7, 1968, was attending the Cathedral School in Rockford, Illinois, which was owned and operated by the Catholic Diocese of Rockford. Sister Alfonse was principal of the school and Sister Stella Ann was the home room teacher of the plaintiff. Monsignor Herman A. Meilinger was the pastor of the Cathedral School and Church. Plaintiff was allegedly beaten and greatly injured by Paul Johnston, another student, during recess on the playground of the school. Plaintiff filed a six-count complaint.

Count I alleged that the defendant Catholic Diocese of Rockford employed the priest and the two nuns in capacities heretofore mentioned, and that on the 7th day of March, Paul Johnston severely beat Richard Gubbe on the playground of the school; that the defendants were under a duty to exercise due care and caution for the safety of the plaintiff, to properly supervise the activities of the students, and more specifically alleged that the defendant Catholic Diocese of Rockford negligently maintained and controlled its premises and provided inadequate and improper supervision of the recess areas including the playground, failed to protect the plaintiff, although he had previously asked for protection against the defendant, Paul Johnston, a larger and stronger boy, and alleged other negligent acts not material hereto. It further stated that the plaintiff was assaulted by reason of the negligence of this defendant and as a direct and proximate cause, he suffered severe injuries.

Count II charged the same defendant with the same misconduct, except that it is alleged that the acts of the defendant were wilful and wanton. Count III charged the defendants, the priest and the two nuns, with the same acts of misconduct and characterizes them as negligent. Count IV charged the same defendants with the same acts of misconduct and characterizes them as wilful and wanton. Counts V and VI contained charges of assault against the defendant, Paul Johnston, but they are not material to the disposition of this case.

The defendant, Catholic Diocese of Rockford, filed a motion to dismiss the complaint for failure to state a cause of action and stated that the allegations of duty on the part of that defendant consist only of a conclusion of the pleader and are wholly insufficient in law and fact; that Counts I and II are wholly insufficient to set forth facts tending to prove that the plaintiff’s injuries resulted proximately from a breach of duty of said defendant, and stated that the law does not require owners or occupiers of premises to maintain a constant lookout or surveillance of invitees thereon. The defendants, the priest and two nuns, likewise filed a motion to strike the complaint. The motion to strike Counts III and IV of the complaint alleged that no acts are alleged which can be classified as misconduct on their part, and stated there was assumed certain affirmative duties which do not legally constitute wilful and wanton misconduct. The trial court allowed both motions to strike and this appeal followed.

Plaintiff contends that (1) there is no statutory or legislative immunity for private or charitable school districts or their employees, and (2) judicial immunity of churches has been abolished in Illinois; that (3) the doctrine of giving school districts immunity from tort liability has been abolished by the judiciary and (4) the negligence of a private and charitable school and its employees should be a question of fact to be determined by the jury. More briefly stated — the plaintiff contends that he brings this appeal to determine his right to bring suit for negligence against private parochial school authorities.

The defendants, the priest and two nuns, state that they have no quarrel with the cases cited to sustain the plaintiff’s first three contentions, but do quarrel with the proposition that the negligence of private and charitable school districts and their employees should be a question of fact to be determined by the jury. The defendant Catholic Diocese of Rockford, in answering the contentions of the plaintiff, stated that an occupant or owner of premises owes to an invitee only a duty to use ordinary care to have the premises in a reasonably safe condition for use in a manner consistent with the purposes of the invitation; that such owner is not bound to anticipate the malicious or criminal acts of others by which injury is inflicted; that the proximate cause of such injury is the act of the assaulter and not of lack of supervision by school authorities; and that by statute, both private and local schools stand in loco parentis to pupils and are not liable for errors in judgment in matters of supervision and control; and that the complaint is insufficient in law and fact to state a cause of action for wilful and wanton misconduct. More simply stated — defendant contends that the issue is a narrow one of whether a school official or corporation is liable for the torts of a third-party student.

Plaintiff and defendants cite Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill2d 11, 163 NE2d 89, and other cases to sustain their position. In Molitor, at p 20, the court stated:

“It is a basic concept underlying the whole law of torts today that liability follows negligence, and that individuals and corporations are responsible for the negligence of their agents and employees acting in the course of their employment. The doctrine of governmental immunity runs directly counter to that basic concept. What reasons, then, are so impelling as to allow a school district, as a quasi-municipal corporation, to commit wrongdoing without any responsibility to its victims, while any individual or private corporation would be called to task in court for such tortious conduct?”

The court concluded that there were no such impelling reasons.

Defendants cite Fustin v. Board of Education of Community Unit Dist. No. 2, 101 Ill App2d 113, 242 NE2d 308 to support their contentions. That case involved a complaint for injuries resulting from a high school basketball game when one player struck another with his fist. The court held that the complaint did not state a cause of action for negligence against the Board of Education and their employees, although they allegedly permitted the player to participate when they knew or had reason to know that he was apt to commit assault during an athletic contest, and stated that the defendants would be liable only where their discretionary powers are performed wantonly and maliciously by the employee. The court there gave Molitor a very narrow construction and said at p 120:

“In Molitor, liability was predicated on a simple factual situation — negligence of the employee in driving a bus resulting in the injury of the student. The question of liability resulting from the discretionary exercise of judgment by professional school personnel relating to participation of a particular student was not involved.”

However, the Illinois Supreme Court, in Darling v. Charleston Community Memorial Hospital, 33 Ill2d 326, 211 NE2d 253, gave Molitor a broader construction. There a patient sued a charitable hospital for damages for alleged negligent treatment. His broken leg became gangrenous and had to be amputated. The court held that a verdict for the plaintiff was supportable because the hospital failed to maintain sufficient nurses, and on the ground that defendant failed to hold proper consultations where skilled nurses would have recognized the development of gangrene, and the hospital did not review the attending physicians’ work. In that case the Supreme Court, after stating that the basic dispute centered on the duty that rested upon the defendant hospital, stated at p 336:

“The plaintiff, however, suggests that the doctrine of charitable immunity announced in Parks v. Northwestern University, 218 Ill 381, and modified in Moore v. Moyle, 405 Ill 555, did not survive the decision of this court in Molitor v. Kaneland Community Unit District, 18 Ill2d 11. It is appropriate that we dispose of that broader contention.
“Moore v. Moyle qualified the doctrine of charitable immunity by permitting recovery against non-trust funds of a charitable corporation, specifically an insurance policy. In other respects it adhered to the doctrine of immunity expressed in Parks v. Northwestern University. In the Molitor case the immunity of school districts was sought to be justified upon the theory that it was required in order to protect public funds. In disposing of this contention we said: ‘We do not believe that in this present day and age, when public education constitutes one of the biggest businesses in the country, that school immunity can be justified on the protection-of-pub-lie-funds theory.’ ”

The court further stated on pp 337-8:

“We agree that the doctrine of charitable immunity can no longer stand in the light of Molitor v. Kaneland Community Unit District, 18 Ill2d 11. In addition to the reasons advanced in the Molitor case, a doctrine which limits the liability of charitable corporations to the amount of liability insurance that they see fit to carry permits them to determine whether or not they will be liable for their torts and the amount of that liability, if any. Whether or not particular assets of a charitable corporation are subject to exemption from execution in order to satisfy a judgment does not determine liability.”

Defendants cite many cases, including Woodman v. Litchfield Community School Dist. No. 12, Montgomery County, 102 Ill App2d 330, 242 NE2d 780, which concerned itself with the Local Governmental and Governmental Employees Tort Immunity Act (e 85, § 1 — 101, et seq., Ill Rev Stats 1965). We do not deem these cases applicable because we are not dealing with the aspect of governmental tort immunity. In the Woodman case a student was Meked in the head by a fellow student while she was picking up paper off the classroom floor at the request of the teacher. It is interesting to note that the court ruled there that a cause of action was not stated under the Local Governmental and Governmental Employees Tort Immunity Act, and that to establish liability the teacher’s act or omission in maintaining discipline, including supervision in the classroom, must constitute wilful and wanton negligence. The court concluded that there was not such an alleged act or omission in maintaining discipline including supervision in the classroom that would constitute wilful and wanton negligence.

In Reid v. Young Men’s Christian Ass’n of Peoria, 107 Ill App2d 170, 246 NE2d 20, it was held that the Y„ M. C. A. had a duty toward a child member to supervise activities in the gymnasium, despite the Y. M. C. A.’s contention that it had no duty to supervise, and no liability for negligence could arise for a breach of a nonexistent duty. That case involved an 11-year-old plaintiff who had been struck in the eye by a metal clasp on a punching bag which was dropped by another boy at the direction of an instructor, who apparently was not supervising at the time of the occurrence. It was further held there that the question of proximate cause was properly submitted to the jury.

Having determined that the case of Darling v. Charleston Community Memorial Hospital has abolished immunity of charitable corporations for negligence, we now turn to the question of whether the complaint stated a good cause of action against the defendants. The answer to this question must be determined irrespective of whether the defendant is a private parochial school or whether it is considered like any other defendant. (See Haymes v. Catholic Bishop of Chicago, 41 Ill2d 336, 243 NE2d 203.)

The case of Altepeter v. Virgil State Bank, 345 HI App 585, 104 NE2d 334, is helpful. There a bank customer sued the bank for injuries when he was shot by a robber on the bank’s premises. The court held that the complaint failed to allege facts from which it could be concluded that the bank did not exercise ordinary care to safeguard the customer from injuries while in the bank. In holding that the counts of the complaint alleging negligence in safeguarding the plaintiff and a willful and wanton failure to take sufficient precaution to safeguard the plaintiff were insufficient in law, the court said at p 603:

“There is no allegation that any act of the defendant was the proximate cause or proximate contributing cause of plaintiff’s injuries. There is no allegation that defendant had any superior knowledge concerning any dangers which anyone might encounter on the banking premises this particular day than the plaintiff himself or anyone else. There is no allega^ tian that appellee had any more information about the robbery than did appellant. The perils to customers, officers and employees of a bank, attendant upon a bank robbery or while a bank robbery is in progress were equally within the knowledge of appellant and appellee. There is no charge of any specific negligence on the part of appellee. The illegal act of the bank robber could not reasonably have been foreseen. An independent act of negligence or wilfulness by a third person is an occurrence which a defendant is not bound to anticipate. (Citation.) An owner of premises is not bound to anticipate the malicious or criminal acts of others by which damage is inflicted. (Citation.) It is only when the independent illegal act is of a nature which might have been anticipated by defendant and against which it was defendant’s duty to provide that a defendant will be held to be liable.
“In our opinion the complaint did not state a cause of action against appellee, and the judgment of the trial court is therefore affirmed.”

Considering the facts which must be alleged to set forth a legal duty and a breach of that duty, we conclude that there are no facts stated in the complaint in this case from which it may be ascertained how and in what manner the defendant was guilty of violating a legal duty. The complaint is replete with legal conclusions, but not sufficient facts upon which the defendants can legally be held liable for negligence or willful and wanton conduct by virtue of the alleged willful and malicious assault upon the plaintiff by the defendant, Paul Johnston.

The judgment of the trial court is, therefore, affirmed.

Judgment affirmed.

MORAN and SEIDENFELD, JJ., concur.


source: Caselaw Access Project

author: TRAPP, J.

license: Public Domain

text:
    William L. Corrigan, Plaintiff-Appellee, v. Kentucky Insurance Agency, Inc., a Kentucky Corporation, and Underwriters at Lloyds, London, Also Known as Lloyds of London, an Unincorporated Association, Defendants-Appellants.
    Gen. No. 11,153.
    Fourth District.
    April 6, 1970.
    CRAVEN, P. J., dissenting.
    Kenneth L. Strong, of Pontiac, for appellants.
    Walter L. Stodd, of Pontiac, for appellee.
   TRAPP, J.

The defendants, Kentucky Insurance Agency, Inc., an insurance broker, and Lloyds of London appeal from a judgment in favor of plaintiff, William L. Corrigan, in the sum of $4,000 on a horse mortality insurance policy. The case was tried by the court without a jury. Defendants contend that the judgment is against the manifest weight of the evidence.

On June 13, 1966, plaintiff and one Gallivan representing Kentucky, had a telephone conversation concerning insurance on horses and under date of June 16, 1966, defendant insurance agency wrote a “cover note” or binder on Lloyd’s form insuring horse, “Alifan,” for $4,000, at a premium of $280, and horse, “Bred Red,” for $2,000, at a premium of $140. Kentucky sent application forms to plaintiff who executed and returned them June 18, 1966. On June 20, 1966, the broker wrote plaintiff:

“Thank you for your order for horse Mortality Insurance. We have put the insurance in force subject to receipt of veterinary’s certificate stipulating the horses are sound.
“If you have not done so, please have a veterinary examine the horses and mail one of the blue certificates we sent you to us. I shall appreciate it very much if you will advise me of the name of the veterinary and his address.”

On June 24, 1966, Kentucky received the certificate of Robert G. Kern, veterinary at Cahokia Downs, certifying that “Alifan” and “Bred Red” were sound. He also stated on the certificate, “Swamp Fever has been diagnosed on the track.”

Several phone conversations took place between June 16, 1966, and July 15, 1966, as to why the insurance certificates had not been delivered. Gerald Gallivan, treasurer of Kentucky, states that he first advised plaintiff:

“. . . that we would not insure the animals. He called me several times and wanted to know why I had not sent him evidence of insurance, and I told him why. I told him we had not received a satisfactory veterinary certificate, and therefore there was no insurance in force. I did not mention the Swamp Fever to him in that conversation because we had not received any veterinary certificate up to June 24th. Mr. Corrigan called me on June 23rd. Between June 24, 1966 and July 15, 1966, I had a conversation with Mr. Corrigan and communicated to him that the horse Alifan was not insurable.”

Plaintiff testified to a phone conversation sometime between June 15 and June 25th, 1966, in which he said Gallivan told him “not to worry and the horse was alright.” Richard Trainor, who was employed in some capacity by plaintiff, testified to listening to three telephone conversations between plaintiff and Gallivan, the last one being on July 6, 1966, in which Gallivan told plaintiff the horses were insured. He stated that Swamp Fever was never mentioned.

On July 15,1966, plaintiff wrote Gallivan:

“Due to no written confirmation of Horse insurance we have made other arrangements.”

On July 18, 1966, Gallivan wrote plaintiff a letter including the following:

“We were sorry to receive your letter today saying that you had placed your insurance elsewhere. We were trying hard to correctly underwrite the business so that there would be no question in the event of loss.”

Plaintiff testified that he had not ever seen Gallivan’s letter of July 18, 1966, prior to the trial. He also testified that after he wrote the letter of July 15, 1966, regarding getting insurance elsewhere, he talked to Gallivan who said everything was alright. He stated:

“Within a couple of days after mailing Plaintiff’s exhibit No. 9 (the letter regarding obtaining coverage elsewhere) I talked to Gallivan over the telephone and was given to understand the note would be disregarded cancelling the insurance or making other arrangements.” (Parentheses added.)

On July 29, 1966, the horse “Alifan” while in a race at Arlington, broke his leg and was destroyed. Under date of July 30, 1966, the Kentucky Insurance Agency billed plaintiff for premiums for three horses giving policy number “Lloyds CN8281” on “Shot O’Jen” for $175, and Lloyds policy number “CN8282” on “Schedule of Thoroughbreds,” which included “Alifan” and “Bred Red” for $420. The bill also showed “Bred Red cancelled” and a credit of $112, making a total bill of $483. The billing period commenced July 15, 1966, on the statement. This bill was paid on August 3, 1966, by plaintiff. Defendant insurance agency tendered the premium back about one year later on July 13,1967.

On August 23, 1966, the defendant insurance agency received notice of the loss of “Alifan,” and on the next day wrote plaintiff that by reason of his July 15, 1966, letter they did not have insurance in force on this animal.

Gallivan explained the complete writing of the cover note in the first instance as follows:

“We did not issue a Cover Note insuring the horse Alifan. We drew up the papers like we always do, but we never sent Mr. Corrigan any evidence of that Cover Note, or Lloyds any evidence of that Cover Note because we didn’t consider it binding until such time as we got a satisfactory veterinarian’s certificate.” (Emphasis ours.)

He explained the billing as follows:

“Plaintiff’s exhibit 5 is a statement prepared by our office on July 30, 1966. It was not prepared under my care and supervision. Our accountant prepared it. The books reflected a charge, and this particular statement was prepared and sent to Mr. Corrigan. The charges should not have been entered on the books because the transaction had not been completed, but we draw up the complete papers at the time we first take the order, and Mr. Corrigan never got an original statement on this horse at all. This was probably a lapse on our bookkeeping department’s part. We fill out the forms which are in triplicate or quadruplicate and file them in a file where later they are picked up and entered.”

Gallivan also testified:

“We are talking about up to June 24th and up to that point I had no written correspondence or telephonic communication with Mr. Corrigan or Mr. Trainor indicating that there was insurance on the horse ‘Alifan.’ ”

Again he testified:

“The next thing that happened Mr. Corrigan called me again and said T still do not have any written evidence of insurance’ and I didn’t have any satisfactory veterinary certificate and could not send him any evidence of insurance. This conversation occurred early in July, maybe the 6th or 7th, along in there.”

This Court notes that on one of the copies of the Cover Note is a rubber stamp with blanks to be filled in. Opposite the designation “Sent to Lloyds” is an ink date “7-7-66.” Immediately below this is the designation “Veterinarian” and the blank opposite is filled in in ink “Robert Kern.” Immediately below this is the designation “date examined,” and opposite the designation in ink is “6-16-66.”

This Court also notes an endorsement on the Cover Note under date of July 7,1966, as follows:

“In consideration of return premium of $112.00, it is hereby understood and agreed that the insurance on Bred Red, Item No. 2, has been cancelled, thereby amending the total amount of the policy toread:
“Four Thousand and no/100------Dollars.
“All other terms and conditions remain unchanged.”

Gallivan also testified:

“So far as the July 30th bill is concerned, we prepare the papers at the time we receive the order just as though we are going to issue the policy. We do the billing also. When the insurance is effected, we send the papers plus the original bill to the assured and the various copies of the bills are placed in different compartments for entry on the books, and ordinarily we don’t have any long delay in getting vet certificates as we had in this case, and I think that is the reason the billing got on our records because of this fact.”

Gallivan stated that the insurance agency had difficulty in crediting the check in payment of the premium. However, there is a notation on the front of the check, “For Wm. Corrigan horse ins.”

The authorities are uniform that the judgment of the trial court on a trial without a jury, which is based upon a determination of fact in respect to conflicting testimony, should not be disturbed on appeal unless that determination is clearly against the manifest weight of the evidence.

Defendant’s witness made numerous unqualified statements which are simply not borne out by the evidence. The assertion that the agency never indicated that there was insurance in force in writing or orally is contradicted by the letter of June 20, 1966, and by the testimony of William Corrigan and Frank Trainor. The assertion that the agency never notified Lloyds of the coverage is contradicted by the agency records. The explanation that the billing was made at the time the original papers were made up does not fit with the July 15th insurance period on the bill, nor with the credit for the July 7th endorsement cancelling the coverage on “Bred Red.” The fact that the coverage was can-celled does not fit the theory that it never existed. Equally significant is the fact that of the original premium of $140 on “Bred Red,” only $112 was credited on the bill for the cancellation. There is no contention that the horse “Alifan” was being treated separately from “Bred Red” so far as the original conditions of coverage were concerned.

The trial court found from the evidence that the horses were sound and the veterinarian so certified to the insurer. Accordingly, this asserted condition had been met.

While it is true that after plaintiff’s letter that he was obtaining coverage elsewhere, the continuance of coverage depends upon the testimony of William Corrigan that Gallivan advised him he would ignore the letter, this Court has no basis for disturbing the trial court’s determination of the weight of this testimony. While Gallivan flatly denies the conversation, the subsequent action of billing plaintiff and the failure to explain the company record of notification of Lloyds without any cancellation of the notice to Lloyds are items consistent with plaintiff’s contention that Gallivan advised him he would ignore the letter.

The judgment of the trial .court as to the liability of Lloyds by reason of the agency placing the insurance in force is not against the manifest weight of the evidence, and should be affirmed. Since Lloyds are liable by reason of placement of the insurance, the defendant, Kentucky Insurance Agency, Inc., could not be liable for failure to place the coverage. The judgment against Kentucky Insurance Agency, Inc., should be reversed.

The judgment against Underwriters at Lloyds London, also known as Lloyds of London, is affirmed.

The judgment against Kentucky Insurance Agency, Inc., is reversed.

Affirmed in part, reversed in part.

SMITH, J., concurs.

CRAVEN, P. J., dissents.


author: MR. PRESIDING JUSTICE DAVIS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lawrence Eddy Lingle, Defendant-Appellant.
    Gen. No. 67-62.
    Second District.
    April 7, 1970.
    Rehearing denied April 23, 1970.

      John F. Graff, of Freeport, for appellant.
    No brief for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

Criminal complaints were filed against the defendant, Lawrence Eddy Lingle, on June 28, 1966, wherein he was charged with having committed the offense of rape, aggravated battery, burglary and kidnapping. A hearing was held on these complaints on July 11, 1966, at which time the defendant was present in person, and by Melvin Finer, court-appointed counsel. The State’s Attorney was also present and filed a petition asking that the defendant be prosecuted under the Criminal Code rather than under the Juvenile Court Act. The defendant and his attorney consented to such procedure. The court allowed the petition and dismissed the juvenile proceedings. Bond was set for the defendant, and preliminary hearing was set for July 19,1966.

On July 18, 1966, the Grand Jury of Carroll County returned a seven-count indictment against the defendant wherein he was charged with rape, burglary, aggravated kidnapping, kidnapping and aggravated battery. Upon the return of the indictments on July 20, 1966, at which time the defendant, his previously appointed attorney, and the State’s Attorney were present in court, a copy of the indictment with the names of the grand jurors, and the witnesses listed thereon, was delivered to the defendant, along with a list of petit jurors. At this time, the court, in accord with the defendant’s desire, appointed attorney Melvin Finer to represent him in connection with these indictments.

On August 1, 1966, the defendant filed a motion to quash the indictment, and a petition was filed by the State’s Attorney to have the defendant adjudged to be a sexually dangerous person. Thereafter, the defendant filed a petition for a writ of habeas corpus. This petition and the motion to quash were heard on August 5, 1966. The defendant, the Sheriff of Carroll County, the Marshall of Sabula, Iowa, the Superintendent and an employee of the Illinois Youth Commission Camp at Savanna, were examined and cross-examined extensively. At the conclusion of the hearing, the court denied the petition for a writ of habeas corpus and the motion to quash the indictment.

Pursuant to motion of the defendant, the court appointed two qualified psychiatrists to examine the defendant to determine his competency to stand trial, and appointed the same psychiatrists to examine him in connection with the petition to have him declared sexually dangerous. These psychiatrists were ordered to report to the court, the State’s Attorney, and the defendant. At a hearing on the motion and petition, the reports were admitted in evidence, by stipulation, as all the evidence in connection with the petition and motion.

From these reports the court found that the defendant was competent to understand the nature of the case and the charges against him, to cooperate with counsel in presenting his defense, and to stand trial. The court further found that one psychiatric report indicated that the defendant was sexually dangerous and the other that he was not. Under these circumstances, the court found that he was not sexually dangerous.

On August 31, 1966, the defendant’s attorney filed a motion to withdraw as counsel for the defendant because he “refused to co-operate with him and his advice.” On September 1, 1966, at which time the defendant, his attorney, and the State’s Attorney were present in court, the court discussed the withdrawal of the defendant’s attorney, and the defendant stated that he did not wish to cooperate with him. The court then informed the defendant that his attorney would be allowed to withdraw and that George Schirmer would be appointed as his new attorney. On September 2, 1966, the court entered an order which so provided. The defendant was present in court on this occasion.

At the arraignment on September 19, 1966, at which time the defendant and attorney Schirmer were present in court, the State’s Attorney nolle prossed Counts 1, 4 and 5 of the indictment. After admonishment, the defendant waived his right to a jury trial and entered a plea of guilty of the crime of burglary, as charged in Count 2; of rape, as charged in Count 3; of aggravated kidnapping, as charged in Count 6; and of aggravated battery, as charged in Count 7 of the indictment. Before accepting his plea, the court advised the defendant of the nature of the charges against him, the consequences of his plea, the penalties as provided by law in connection with such charges, and of his right to a jury trial on these charges. The defendant persisted in his guilty plea and the court accepted it.

Thereupon, the defendant waived a hearing in aggravation and mitigation, and filed a petition for probation, but waived investigation. The court denied the petition and sentenced the defendant to imprisonment in the Illinois State Penitentiary on Counts 2, 3, 6 and 7, as follows:

Count 2 Burglary 10 to 30 years,

Count 3 Rape 10 to 30 years,

Count 6 Aggravated Kidnapping 10 to 30 years,

Count 7 Aggravated Battery 9 to 10 years,

and ordered that all of the sentences should run concurrently.

On September 19, 1966, the court, on application of the attorney for the defendant, ordered that, promptly upon admission to the penitentiary, the Department of Public Safety should cheek certain growths on the defendant’s head for malignancy, and should reevaluate his condition relative to being a sexually dangerous person in conjunction with the pertinent portion of his file with the Illinois Youth Commission.

The record indicated that on June 28,1966, the defendant, age 17 years, was a ward of the Illinois Youth Commission and a resident at the Illinois Youth Commission Camp at Savanna. On this date, Camp personnel took the boys on a fishing trip and the defendant walked away from the group. About five hours later, he appeared at the Milwaukee railroad station in Savanna where a passenger train was standing, which he learned was en route to Omaha. When he inquired from a trainman whether he could buy a ticket for Omaha, he was told that a police officer had just notified railroad personnel to be on the lookout for an escapee from the Illinois Youth Camp. The defendant accompanied the trainmen to the police car, but they were unable to locate the officer. The trainman was apparently convinced that the defendant was not the escapee and he was permitted to buy a ticket and board the train.

Almost immediately after the train started to move, the defendant was searched by members of the train crew. They found certain watches, a grip, and other items, which apparently convinced them that the defendant was the escapee. The train was stopped at the bridgetender’s shanty in the center of the bridge between Illinois and Iowa where a trainman telephoned the Savanna police station, and then the Sabula, Iowa, police station that the escapee was on the train and would be turned over to the Sabula police to hold for the authorities from Illinois. There was no conflict in the evidence on the foregoing facts.

The defendant contends that a Sabula police officer boarded the train, handcuffed him, removed him from the train and took him to the Savanna police station. However, from the testimony of this officer, the Sheriff of Carroll County, the Superintendent of the Illinois Youth Commission Camp, and a member of his staff, the court found that the Sheriff of Carroll County was notified by radio of the call from the train crew; that he then went to the Savanna police station and, accompanied by the Superintendent and a staff member of the Illinois Youth Commission Camp, proceeded to the police station in Sabula, where they found the defendant; that the handcuffs placed on the defendant by the Sabula police officer were removed, and handcuffs of the Sheriff were placed on him; and that he was then placed in the back seat of the Sheriff’s squad car, between the Superintendent and staff member of the Illinois Youth Commission Camp, and he was returned to the Savanna police station and later taken to the Carroll County jail.

The court found from all the evidence that prior to his return to Savanna, the defendant was wanted only as an escapee from the Illinois Youth Commission Camp; that he was returned to the custody of the Illinois Youth Commission personnel; and that after his return to Savanna, it was then discovered that the defendant was a suspect of the crimes for which he was subsequently indicted.

The court held that extradition was not required for the return of a minor escapee or runaway to the custody of his guardian and, consequently, dismissed the defendant’s petition for a writ of habeas corpus, and denied his motion to quash the indictment.

Various appellate counsel appointed on behalf of the defendant have asked leave to withdraw and other counsel have been appointed for him. John L. Graff, his last appointed appellate counsel, has filed a petition for leave to withdraw, accompanied by a brief, in form of suggestions in support of the petition, pursuant to Anders v. California, 386 US 738, 18 L Ed 493, 87 S Ct 1396 (1967). Proof of service indicates that a copy of the petition and brief was mailed to the defendant on December 27, 1969, and that said copy included a copy of the complete record in connection with this proceeding.

On December 31, 1969, the court, on its motion, caused its clerk to direct a letter to the defendant whereby he was further notified that his appointed appellate counsel had moved to withdraw; that the petition for leave to withdraw contained certain conclusions of his counsel in respect to the merits of the appeal; and that the petition asserted that the appeal was wholly frivolous and void of any contentions to support it.

The letter also notified the defendant of the Proof of Notice, which was attached to the petition; and that the court on its own motion had continued the matter until January 30, 1970, in order to allow him to file, on his own behalf, any additional matters which he believed to be meritorious, or to assert any further reasons why the petition should not be allowed, or why the court, after a review of the record, should not affirm the judgment of the trial court.

The defendant thereafter presented various documents which the court, on its own motion, ordered to be filed and treated as the defendant’s response to the petition. The court also, on its own motion, extended to March 2, 1970, the time within which the defendant could file any further responses to the petition.

The petition and brief state that it was counsel’s conclusion that the appeal is wholly frivolous, and that only illusory issues are presented: namely, was the removal of the defendant from Iowa without extradition procedures in violation of his constitutional rights; and did lack of advisement of the defendant of his right to call witnesses on his own behalf, or of his right to cross-examine witnesses called by the State, or of the presumption of his innocence until proven guilty beyond a reasonable doubt, violate his constitutional rights?

From the foregoing recitation of the facts and findings of the trial court, it appears that the defendant was a minor at the time he was returned to his Illinois guardian, the Illinois Youth Commission; and that the reason for his return was that he was a runaway. The defendant contends that he was brought back to Illinois as a suspect in connection with the crimes for which he was subsequently indicted. However, the record does not sustain this contention.

The record shows that the defendant was at all times a ward of the Illinois Youth Commission. The Youth Commission can only accept a ward through guardianship and custody by the commitment of a delinquent child to it by a circuit court, or through commitment to it of a child convicted of a felony.

The record also shows that runaways from this camp were not infrequent and that upon notification by the Youth Commission Camp officials, the Carroll County and City of Savanna law enforcement officers, along with Camp personnel, would patrol the area to block escape routes and and find the runaways.

We believe that the trial court properly found that all of the evidence indicated that the defendant was considered only as an escapee from the Illinois Youth Commission Camp before he was brought back to Savanna.

He was returned as an escapee in the immediate custody of two members of the Illinois Youth Commission Camp staff.

Extradition not being required under the constitution or laws for the return of a minor escapee or runaway to the custody of his guardian, even though from one state to another, there is no ground here for the reversal of his sentence on the basis of an alleged violation of a constitutional right.

As further evidence of the lack of merit of this contention, a petition for leave to appeal to the Illinois Supreme Court was filed on behalf of the defendant on the same ground, was docketed as cause No. 40,974, and was denied by the Supreme Court on January 28,1969.

The defendant also urges that the lack of advisement of his right to call witnesses on his own behalf; or, of his right to cross-examine witnesses called by the state; or, that there was a presumption of his innocence until proven guilty beyond a reasonable doubt, violated his rights under the Constitution of the United States and the State of Illinois. These contentions are urged in the petition for leave to appeal as a grounds for a possible reversal, and they are without merit.

The defendant did cross-examine witnesses for the State through his appointed counsel and, thus, the contention that he was not advised of his rights in this respect was waived. Legal counsel is appointed for an indigent defendant in order to furnish him with every opportunity for a full and fair trial — the same type afforded to the more affluent. All of the foregoing rights were known to his attorney and, thus, in essence, were known to him since his attorney acted on his behalf.

In the case at bar, the defendant entered a plea of guilty. He was fully advised of his right to a trial by jury which he understandingly and knowingly waived. Also, after full admonishment, he knowingly and understandingly entered a plea of guilty which destroyed the presumption of his innocence. By the plea, he waived his right to call witnesses in connection with a trial, on the merit of the charges against him.

We have fully examined the entire record of the proceedings, as required by Anders v. California, supra, and conclude that the appeal lacks merit, and if pursued further, would be frivolous. Counsel is, therefore, given leave to withdraw as defendant’s appellate counsel, and the judgment of the trial court is affirmed.

Judgment affirmed.

MORAN and SEIDENFELD, JJ., concur.


author: RYAN, J.

text:
    Helen F. Theesfeld, Plaintiff-Appellant, v. William D. Eilers, Defendant-Appellee.
    Gen. No. 69-82.
    Third District.
    April 7, 1970.

      John Unger, Unger & Stewart, of Danville, for appellant.
    Thomas C. Stifler, II, Stifler & Snyder, of Danville, for appellee.
   RYAN, J.

This is a personal injury action with verdict and judgment for defendant. Plaintiff has appealed.

On May 11, 1966, at about 7:00 p. m., plaintiff was driving her vehicle in an easterly direction on Illinois Route #1, just south of Watseka, Illinois. Plaintiff testified that she was in the process of making a left turn into a shopping center when the vehicle which she was driving was struck in the rear by a vehicle being driven by the defendant. Plaintiff stated that her turn signal was on and that she had to stop and wait for an oncoming car. Defendant testified that it was dark, sort of foggy and raining; that he was also driving in an easterly direction along the same road at a speed of about 35 miles per hour immediately before the accident; that he saw no taillights or brake lights ahead of him; that the reflection of his headlights on the plaintiff’s license plate called his attention to the fact that an accident might occur; that he applied his brakes and his car slid into the rear of the plaintiff’s car at a speed of about 15 miles per hour. An investigating state trooper testified that it was dark and raining and “there would have been no tire bums because the tires would have slid.” The trooper also stated that there were no roadway signs indicating any entrance to the shopping center. Plaintiff testified that defendant admitted his fault after the accident, but this was denied by the defendant.

Following the accident, plaintiff did her shopping and drove home. She first noticed a sore, stiff neck a couple of days after the accident. She doesn’t remember any mark, scar or bruises on her forehead immediately after the accident. She stated that she had headaches and trouble remembering after the accident. She consulted her family doctor and was then referred to Drs. Dorothy and Donald Schultz. Dr. Donald Schultz, who limits his practice to the field of neurosurgery, subsequently performed brain surgery on the plaintiff on July 1, 1966, removing a part of the temporal lobe of the brain. Dr. Schultz testified that he removed a portion of a gliotic mass and that he believed that the condition resulted from the auto accident.

Dr. Eric Oldberg, a neurological surgeon, testified on behalf of the defendant after having examined the plaintiff and inspected the hospital records. He expressed the opinion that the accident didn’t produce any condition of ill-being; that he couldn’t rationalize the treatment given the plaintiff; that gliosis is an increase in the connective tissues of the brain; in other words, a scar, and to develop to the extent indicated by the records furnished him would require six months to a year— which would have indicated that the cause thereof would have antedated the accident in question.

Two of plaintiff’s consulting doctors, namely, Dr. Bobowski, a pathologist, and Dr. Eisen, a psychologist, were called as defendant’s witnesses. Dr. Bobowski’s testimony tended to confirm Dr. Oldberg’s testimony. Dr. Eisen’s testimony tended to refute the plaintiff’s testimony as to lack or loss of memory.

Plaintiff-appellant raises several points on appeal. Was it error for the trial court to refuse to direct a verdict for the plaintiff on the question of liability? Was it error for the trial court to refuse a new trial on the grounds that the verdict was contrary to the manifest weight of the evidence? Was it error to allow the testimony of Dr. Oldberg to stand when it was based in part on hospital records made by those not under his control or supervision? Was Dr. Oldberg’s testimony objectionable because it was not limited to objective findings? Was it error for the trial court to give defendant’s instruction on contributory negligence; to refuse to give plaintiff’s instructions on following too closely and reckless driving; and to refuse plaintiff’s special interrogatory to the jury on reckless driving?

We do not believe that the trial court erred in refusing to direct a verdict for the plaintiff on the question of liability. Neither do we believe that the verdict was contrary to the manifest weight of the evidence.

It is a fact that the defendant ran into the plaintiff’s car. Under the special facts of this occurrence, however, it cannot be said that inferences could not be drawn that the defendant was free from negligence. Although plaintiff testified that her turn signals were on, the defendant testified that he saw no lights and was not aware of the presence of plaintiff’s car in front of him until his headlights reflected off her rear license plate. In order to sustain plaintiff’s motion for a directed verdict, the trial judge and this court would have to determine that after considering all of the evidence in its aspect most favorable to the defendant that no contrary verdict could ever stand. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504. Such a determination cannot be made in this case.

It is the jury’s function to determine the facts, disputed as well as undisputed, and to make reasonable inferences therefrom. Hulke v. International Mfg. Co., 14 Ill App2d 5, 142 NE2d 717. The jury’s determination of factual questions may not be set aside on review because a judge believes a different conclusion more reasonable. Such action becomes proper only when the verdict is contrary to the manifest weight of the evidence. Guthrie v. Van Hyfte, 36 Ill2d 252, 222 NE2d 492. The record discloses ample evidence to support the jury’s finding. It is therefore immaterial that the court might draw a contrary inference. Allendorf v. Elgin, J. & E. Ry. Co., 8 Ill2d 164, 171, 133 NE2d 288.

In Finley v. New York Cent. R. Co., 19 Ill2d 428, 436, 167 NE2d 212, it was stated as follows:

“The fact that contrary inferences would be equally supported by the evidence is not sufficient to show unreasonableness of the verdict. It is the jury’s function to weigh contradictory evidence, judge the credibility of the witnesses and draw the ultimate conclusion as to the facts. Its conclusion, whether relating to negligence, causation, or any other factual matter should not be set aside merely because different conclusions could be drawn or because judges feel that other results are more reasonable.”

Applying the above rules to the special facts of the case at hand, we find that the trial court committed no error in denying plaintiff’s motion for a directed verdict on the question of liability, or in denying plaintiff’s motion for a new trial on the grounds that the verdict was contrary to the manifest weight of the evidence.

It may even be that the jury in this case, in arriving at its decision, found that the defendant was negligent and that the plaintiff was free from contributory negligence. We have no way of knowing that. Under the facts of this case, however, the jury could still have found for the defendant on the basis that the plaintiff was not injured or that her injury was not proximately caused by the accident in question. We have already reviewed the evidence in that regard and need not repeat it here. Suffice it to say that the issue was raised by the facts and could have been decided either way by the jury. There can be no recovery for negligent conduct when there is a failure to prove causal connection between the injury and the event at issue. Manion v. Brant Oil Co., 85 Ill App2d 129, 229 NE2d 171; Carter v. Winter, 50 Ill App2d 467, 200 NE2d 528; Wigington v. Faulkner, 51 Ill App2d 220, 201 NE2d 252. Illinois Pattern Instruction No. 21.02, which was given in this case, relates to the burden of proof on the issues. In addition to requiring the plaintff to prove that she was using ordinary care for her own safety and that the defendant was negligent as charged, this instruction also requires that the plaintiff prove that she was injured and that the negligence of the defendant was a proximate cause of the injury. This instruction also instructs the jury that if any of these propositions has not been proved, then the verdict should be for the defendant. Under this instruction, if the plaintiff failed to sustain the burden of proving that she was injured or that her injury was proximately caused by the negligence of the defendant, a verdict for the defendant is required even though the plaintiff may have sustained the burden of proving the defendant negligent as charged and that she, herself, was in the exercise of ordinary care. The evidence in this case is such that all four of said propositions, i. e., negligence, contributory negligence, injury and proximate cause were issues of fact for the determination of the jury. Contributory negligence will be discussed later in this opinion.

As to the testimony of Dr. Oldberg which is objected to, we find no error. Although Dr. Oldberg considered the plaintiff’s hospital records in arriving at his diagnosis, these records had been received in evidence in this case as part of the plaintiff’s case in chief. Plaintiff, accordingly, has no standing to object to their consideration by Dr. Oldberg in testifying for the defendant. The objection which the plaintiff made to Dr. Oldberg’s use of the records relating to the plaintiff’s case was that these records were “subjective” and, therefore, the doctor could not consider those, since he was not a treating physician. We do not perceive the question to be one of objective or subjective symptoms. The records concerning the plaintiff which the doctor had previously examined and which were used in part, at least, in the formation of his opinion which was expressed in court, were records which the plaintiff, herself, had offered into evidence and which had been admitted into evidence. At the time that Dr. Oldberg testified, these records were in evidence. An expert witness may base his opinion upon facts which are in evidence or partly on facts of his own personal knowledge, and partly on facts shown by the testimony of others. He should not base his opinion on facts that are not proved. 32 CJS, Evidence, § 546 (94); Melford v. Gaus and Brown Const. Co., Inc., 17 Ill App2d 497, 151 NE2d 128; Butler v. Palm, 36 Ill App2d 351, 184 NE2d 633.

Dr. Oldberg also testified that he made an examination of the plaintiff and from this examination found that she was oriented and knew where she was and why. An objection was made to the effect that orientation is a subjective finding and that since Dr. Oldberg examined the plaintiff solely for the purpose of testifying and not for the purpose of treating the plaintiff, he should not be allowed to state such an opinion. The objection was overruled and the plaintiff here has assigned this ruling as error. We do not deem it necessary to enter into a detailed discussion of the difference between subjective and objective symptoms. We deem it sufficient to state that in this case the doctor testified that he made an examination of this lady and from his examination he found that she was oriented. He had previously been asked on direct examination as to what she had told him about what happened to her. The objection to that question was sustained. There is nothing in the abstract to indicate that the doctor’s conclusion that she was oriented was based on any statement that she made to him, or any other subjective symptom.

The plaintiff has assigned as error the giving by the court of an instruction concerning contributory negligence. Although the plaintiff’s automobile was struck from the rear and although she testified that her turn signals were on, the defendant had testified that he saw neither taillights nor brake lights and that his first knowledge of the presence of the plaintiff’s vehicle stopped on the highway was when his headlights reflected off her license plates. We are of the opinion that this raises a jury question as to whether either the taillights or the brake lights or the turn signals on the plaintiff’s automobile were on, operating and visible to the defendant. It was a dark night and was raining. We feel that these facts raise possible questions as to the contributory negligence of the plaintiff so as to authorize the giving of the instruction in question.

The court refused to give plaintiff’s instructions on following too close and reckless driving and refused plaintiff’s special interrogatory to the jury on reckless driving. There being no evidence in this case to the effect that defendant was following another vehicle more closely than was reasonable and prudent or that the defendant was guilty of willful and wanton misconduct or reckless driving, the refusal of plaintiff’s instructions on these points was proper. Moreover, willful and wanton misconduct was not pleaded in plaintiff’s complaint.

Plaintiff’s special interrogatory to the jury as to reckless driving was properly refused for the same reason and correspondingly because it was not directed at an ultimate issue in the case, and therefore was not proper. Debolt v. Wallace, 56 Ill App2d 380, 206 NE2d 469. Interrogatories which ask for a special finding as to mere evidentiary facts are never proper. Wicks v. Cuneo-Henneberry Co., 319 Ill 344, 150 NE 276.

For the reasons given, we believe that the judgment of the trial court in this case should be and the same is hereby affirmed.

Affirmed.

STOUDER, P. J. and ALLOY, J., concur.


text:
    Western National Bank of Cicero, a Banking Corporation, as Trustee, Under Trust No. 2010, Dated December 11, 1958, Plaintiff-Appellant, v. The Village of Downers Grove, a Municipal Corporation in the State of Illinois, Defendant-Appellee.
    Gen. No. 69-92.
    Second District.
    April 7, 1970.

      Edward "Van De Houten, Jr., of Glen Ellyn, for appellant.
    Wysong and Cochran, of Downers Grove, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

The plaintiff brought this action seeking a declaratory judgment that the property in question could be used for multifamily purposes even though located within a single-family zoning classification of the defendant village. The plaintiff’s complaint was based upon two grounds: first, that the existing zoning ordinance was void as applied to its property, and second, that the defendant was estopped by its action to deny the multifamily use. The plaintiff has appealed from an adverse decree of the trial court.

Jaroslav Sedlak, the beneficial owner of the land jn question, is a civil engineer. He received his formal education in Czechoslovakia in the 1920’s and obtained his license as an engineer from the State of Illinois in 1960. He purchased the property in 1959. At that time it was improved with a single-family residence which was, however, in a state of disrepair. He lived in the house for a short period of time and then began to repair and remodel it. He continued with the remodelling until he was stopped by the village building inspector and told that he must obtain a permit.

Sedlak then submitted plans for the remodelling, and a permit was issued to him in August of 1960. The permit was, on its face, for a single-family residence, and Sedlak was told that while the plans which he submitted were such that the building could be converted to multiple-family use, the existing zoning permitted only single-family use. Sedlak informed the village inspector that he had hoped to use the building for his large family.

Sedlak proceeded with his remodelling and by the spring of 1962, he had spent approximately $25,000 in so doing. At that time, he petitioned for a change of zoning to permit multiple-family use, and this was denied. He continued with his construction, and in 1966 he again applied for rezoning, which was denied. Later in the spring of 1966, he completed his remodelling at a total cost of approximately $55,000.

Civil engineers and architects testified on behalf of Sedlak that the building was constructed substantially pursuant to the plans that had been submitted to the village. They further testified that in their respective opinions the plans called for a multiple-family, as opposed to a single-family, dwelling. Their opinions were based generally on the following facts: there were two stairways in the building; it had the appearance of two distinct units on each of the two floors, with access from each unit to a stairway; and there were bathrooms for each unit. Thus, there appeared to be four independent units.

The finished building had kitchen facilities for each unit. These were not, however, disclosed in the plans submitted to the village. The plans submitted by Sedlak to the village called for an addition to the existing building of two rooms, plus a bath on the first floor, and two rooms, plus a bath on the second floor.

All of the surrounding property is zoned single-family residential. The property fronts on Highland Avenue; all of the land adjoining it in this area is zoned and used for single-family residential purposes. Also, adjoining or in near proximity to the property — in addition to the new single-family subdivision across the street — are other uses permitted under the single-family zoning ordinance: a church, a school, and across a street to the north, a proposed hospital.

The plaintiff’s expert witnesses testified that the highest and best use of the subject property under normal conditions would be in conformity with the existing zoning; however, with the existing building, which had been converted into four apartments, its highest and best use would be as an apartment building. They testified that such use would be compatible with the neighborhood; and that for single-family purposes, the property had a value of approximately $30,000, and for multiple-family purposes, it had a value of between $50,000 and $55,000.

The various factors which are relevant to the determination of the validity of a zoning ordinance as applied to specific property are well known. Tillitson v. City of Urbana, 29 Ill2d 22, 27, 193 NE2d 1 (1963); Myers v. City of Elmhurst, 12 Ill2d 537, 543, 544, 147 NE2d 300 (1958); La Salle Nat. Bank of Chicago v. County of Cook, 12 Ill2d 40, 46, 47, 145 NE2d 65 (1957); Hoffmann v. City of Waukegan, 51 Ill App2d 241, 244, 201 NE2d 177 (1964). All of the surrounding area is zoned single-family residential and is so used, except for the school, church and such uses as are permitted under this zoning classification.

One of the basic inquiries to be made when a zoning classification is challenged as being arbitrary is whether the particular property in question is zoned in conformity with the surrounding uses. Bluhm v. City of Chicago, 110 Ill App2d 136, 141, 142, 249 NE2d 108 (1969).

The surrounding zoning and single-family residential use renders the plaintiff’s burden of overcoming the presumption of validity of the existing ordinance rather substantial. Bennett v. City of Chicago, 24 Ill 2d 270, 273, 274, 181 NE2d 96 (1962); Kellett v. County of Du Page, 89 Ill App2d 437, 443, 231 NE2d 706 (1967). It is not enough for the plaintiff to show that the property could reasonably be classified for a multifamily use, nor even to convince this court that it might so classify the property. Merchants Nat. Bank of Aurora v. City of Aurora, 119 Ill App2d 179, 255 NE2d 609 (1970) . If there is room for a legitimate difference of opinion as to the reasonableness of the ordinance, then the legislative judgment of the municipality is conclusive. Vedovell v. City of Northlake, 22 Ill2d 611, 615, 177 NE2d 124 (1961); Merchants Nat. Bank of Aurora v. City of Aurora, supra; Mutz v. Village of Villa Park, 83 Ill App2d 1, 10, 11, 226 NE2d 644 (1967).

The plaintiff’s argument — that since the property has remained vacant for a great length of time, the court would be warranted in considering that this was due to improper zoning — is not persuasive for two reasons. First, we are not convinced that the facts in this case establish that the property has remained vacant and undeveloped. When the plaintiff bought the property there was a single-family residence constructed thereon, which he lived in for awhile. Thus, the land had not been vacant and totally undeveloped for a great number of years as is found in most cases where this factor is discussed.

Second, the cases do not hold that evidence that the land has remained vacant, necessarily means that the zoning is improper. The courts have only stated that the length of time that the property has remained vacant, as zoned, as compared with the development of surrounding land, may be one factor to take into consideration in determining the validity of the existing zoning. Treadway v. City of Rockford, 28 Ill2d 370, 377, 192 NE 2d 351 (1963). Also, as stated in Bluhm v. City of Chicago, supra, 145, 146, a party urging this contention must establish that the property is unsaleable, vacant or undeveloped because of the zoning classification. In the case at bar, the plaintiff has failed to prove such circumstance. Absent such proof, we would have no more reason to hold that the vacancy of the property was occasioned by improper zoning than we would to hold that the vacancy occurred because no attempts were made to use or develop the property, or because other difficulties, totally unrelated to zoning, had been encountered.

The fact that the plaintiff’s property is more valuable if used for multifamily purposes than if used for single-family purposes does not, standing alone, mean that the zoning is improper. The increase in value, if property is put to a more intense use, is normally the case. Elmer Clavey, Inc. v. City of Highland Park, 75 Ill App2d 464, 470, 220 NE2d 93 (1966); Hoffmann v. City of Waukegan, supra, 245. This factor is even less significant in this case were the increase in value is due to the construction completed by Sedlak notwithstanding the existing zoning limitation.

Under the circumstances of this case, we believe that the trial court was correct in finding that the existing zoning ordinance is valid.

Also, we do not believe that the defendant is estopped to deny the issuance of an occupancy permit to the plaintiff for multiple-family use. We agree with the plaintiff that the doctrine of estoppel may be applied against a municipality even when acting in its governmental capacity. The City of Quincy v. Sturhahn, 18 Ill 2d 604, 614, 165 NE2d 271 (1960); Stahelin v. Board of Education School Dist. No. 4, DuPage County, 87 Ill App2d 28, 39, 230 NE2d 465 (1967). If under all of the facts and circumstances of a case, it appears that the affirmative acts of a municipality have created a situation which would render it inequitable and unjust to permit the municipality to later retract what its officers had previously done, the doctrine of estoppel may be applied against it. Gregory v. City of Wheaton, 23 Ill2d 402, 407, 408, 178 NE2d 358 (1961); Cities Service Oil Co. v. City of Des Plaines, 21 Ill2d 157, 161, 171 NE2d 605 (1961).

Here, however, the remodelling work on the house was halted when it was discovered that Sedlak was proceeding therewith without a permit. When he filed his plans for a permit, he was informed that while they could be modified so as to permit a multifamily use, the existing zoning permitted only a single-family use. The defendant was lead to believe that Sedlak was hoping to bring additional members of his family to this country to live with him. The plans which he submitted called only for the addition of two rooms, plus a bath, on each floor. There were no plans for the additional kitchen facilities which he built.

Sedlak claims that inspections were made by the village, and that no complaint was made of the remodelling for a multiple-family use. The village counters that inspections were made of the footings and foundations early in the construction; that later inspections were made at the time when complaints were made by neighbors; and that inspections were made of the type of block used in the construction. The village contends that none of these inspections were at a time or place which disclosed anything inconsistent with the remodelling of the house for a single-family use. Our examination of the record satisfies us that the evidence sustains this contention.

In 1962, Sedlak sought rezoning for a multiple-family use, and even though this request was denied, he continued the remodelling work. In 1966 he again sought rezoning, which was denied, but, nevertheless, he completed this remodelling. He constructed kitchens in each unit, even though the plans submitted to the village contained no provisions for kitchens.

The distinguishing feature between this case and those cited by the plaintiff, is that here it does not appear that Sedlak proceeded in good faith in reliance upon affirmative acts of officers of the city, which induced him to remodel the building into a multiple-family structure. Rather, it seems that his course of conduct was self-determined, not fully open or entirely honest in its relation to the village, and despite — instead of in reliance upon — the various acts of the officers of the village.

In Wehrmeister v. Carlman, 17 Ill App2d 171, 149 NE2d 453 (1958), cited by the plaintiff, the landowner had planned to construct two houses on certain land in a manner permitted by the village ordinances. The village officials induced him to place the houses on the property in another manner. The village, substantially later, tried to prohibit the construction of one of the houses in the location they had approved. The court applied the doctrine of estoppel, but it was clear, under the facts, that the houses had been relocated in good faith in reliance upon the actions of the village officials.

In The People v. Thompson, 209 Ill App 570 (1918), also cited by the plaintiff, the landowner had been issued a permit to construct a public garage, even though it would be within 200 feet of a hospital or school, in violation of an ordinance. After the landowner had spent $30,000 to build the garage, he was denied a license to operate it because of the ordinance. It was clear that the building permit was for a garage. At page 572, the court quoted, with approval, language from an earlier case stating, in effect, that where a party in good faith has acted in reliance upon the affirmative acts of a city, and has made expensive and permanent improvements, that it would be highly inequitable and unjust to destroy the rights acquired, and the doctrine of estoppel will be applied.

The People v. Thompson, supra, is cited in Cities Service Oil Co. v. City of Des Plaines, supra, at page 162, where the court, in referring to Thompson, stated: “the city would not be heard to assert (s) its power to the detriment of one it had induced to act in good faith upon its assumed authority.” (Emphasis ours.)

Under the facts and circumstances of this case, the doctrine of estoppel may not be applied against the defendant. It does not appear that the village either induced Sedlak to do what he did, or that Sedlak undertook his project in good faith and in reliance upon the acts of the officers of the village. Thus, the judgment of the trial court is affirmed.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: MR. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, on Relation of The First National Bank of Lake Forest as Trustee Under the Trust Agreement Dated April 20, 1955, and Known as Trust No. 1208, Deerfield State Bank, and Joseph Greco, Petitioner-Appellant, v. The City of Highland Park, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 69-112.
    Second District.
    April 9, 1970.
    Rehearing denied May 7, 1970.

      Snyder, Clarke, Dalziel, Holmquist & Johnson, and Charles F. Scott, of Waukegan, for appellant.
    Thomas H. Compere and Eerie L. Schwartz, of Highland Park, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Petitioner seeks mandamus to compel the issuance of a permit by the City which would allow the removal of an existing house and portions of a greenhouse, and the construction of a new building, for the purpose of operating a “greenhouse, garden center, landscaping office and florist shop.” A lawful continuance of a nonconforming use is claimed.

The City denied the permit, except for the request to wreck existing structures. The trial court upheld the action of the City.

The property is located within the City of Highland Park, with a frontage of approximately 167 feet on Deerfield Road, and with a depth of approximately 226 feet. It was annexed to the City in 1924 and was previously unzoned, in an unincorporated area. At the time of the annexation, the Highland Park Zoning Ordinance classified the property as Residence District and it has remained zoned for single-family purposes.

The dispute centers on questions of whether a nonconforming use has .been established by the evidence, and on whether the contemplated repairs, demolishment and reconstruction would constitute expansion or enlargement of such use prohibited under relevant ordinances. In the alternative, an issue is raised by petitioner’s claim that the City has been estopped to deny the issuance of the requested permit.

Robert S. Ramsey, testified for petitioner. He is the President of the Deerfield State Bank, one of the relators, which is the beneficial owner of the premises. He stated that he was a longtime resident of the area and had been familiar with the property in question since 1923. He passed the property two or three times a year at that time when he drove to Deerfield. He recalled a greenhouse on the property in 1923, and a separate “building used as an office.” Some time after 1923, he recalled that there was a new greenhouse built on the property, and observed that one or two years after 1923 the greenhouse was used for growing potted flowers, plants and cut flowers for sale. Items purchased were paid for in the separate building wherein he observed a cash register on a desk and a cot in the room. Prior to 1926 the greenhouse was relocated in its present positian, and purchases on the premises were paid for in the house-office. He observed no change in use after 1926. In the early 1960’s he solicited a bank account from the then owner, Ladd Stachel. A year or two later his bank loaned money to a John Zender to acquire the property. Both Stachel and Zender operated a “flower cart sale of cut flowers on the property.” He knew of improvements to the separate building in 1964, including the installation of a “picture window.” Also, “a kitchen was put in, some calking, and the north portion of the building was what I would call gutted.” Zender died and the bank acquired title to the property and leased it to the relator, Joseph Greco.

Jens Peterson also testified for relators, claiming that he went on the property regularly to do business. He said that the original greenhouse and retail sale business of cut flowers was that of Fred Coleman (an adjoining owner) and not Frank Keleman (who was in the chain of title to the property), and he could not say whether it was outside the present premises or not. He testified that in 1926 “there was a new greenhouse built a little bit northeast of where this old one was that Fred Coleman had, but it was built by a different man.” He said at another point that there were “two greenhouses” being put up on the subject property. He stated that the present house was not there prior to 1926.

Joseph Greco, one of the relators, testified that he began operation of a flower shop and garden center in 1965, selling potted plants, fertilizer and grass seed. He was in the landscaping business and had occasion to be on or by the property three or four days a week in 1952 or 1953. He testified to paying bills in the house and described a room with a cash register, a safe and office furniture, and said the building was used as a residence. He purchased potted plants at the premises between 1952 and 1964, although not in each year. These products were on sale about three months out of the year.

Greco further testified that while nothing was missing from the present foundation of the greenhouse, it needed replacement of glass; and heating and electrical work. A stucco building attached to the greenhouse needed complete renovation and he was using it only for storage. He described his proposed plans. He would remove the back portion of the greenhouse and renovate the existing part. He would build a new building in the present location of the “stucco building” and use it as a garden shop building. The house would be torn down.

There was evidence of a series of building permits which had been issued by the City: June 16th, 1924, to Frank Keleman, to construct a “greenhouse building”; June 15th, 1925, to Keleman, to construct a “new greenhouse”; November 8th, 1927, to B. Nechville, for a “tool shed” (on a portion of the property not now a part of the premises in question); July 23rd, 1930, to Neehville, to construct an “addition to greenhouse”; August 24th, 1933, to Nechville, to construct a “porch addition”; April 4th, 1939, to Pasquale Bellei, to add an additional room “to cottage”; and on May 18th, 1964, to John Zender, for “remodeling of porch.” (This application stated, “retail florist” in the use portion of the form.)

The zoning ordinance of Highland Park passed in 1947 and as amended, introduced by the City included,

Article 14, headed “Non-Conforming Uses” and providing in material part:

Section 14 — 2.
The lawful use of a building existing at the time of the adoption of this Ordinance may be continued, subject to the provisions of this Ordinonce, although such use does not conform with the provisions hereof. If no structural alteratians are made, a non-conforming use of a building may be changed to another non-conforming use of the same or more restricted classification. . . .
Section 14 — 5.
... a non-conforming use of land only shall not be expanded beyond the extent of land aetually devoted to and used by such non-conforming use at the time such use became non-conforming. The non-conforming use of a building or structure may not be increased beyond the area or space within such building actually devoted to such use at the date of the adoption hereof. . . . No< non-conforming use rmy be expanded or enlarged by any addition to or alteration or remodeling of the same. Nothing herein contained shall be construed to prohibit ordinary-repairs thereto. (Emphasis added.)
(Section 14-7 provides for amortization of nonconforming uses and states in part:
(d) In the case of buildings erected since January 1, 1925, within forty (40) years from the date of the issuance of a building permit therefor, but in all cases on or before January 1,1986.)
Section 4-9, under the heading of “Districts and Boundaries thereof” (which appellants urge is not applicable to non-conforming uses) provides:
Except as hereinafter provided:
(a) No building shall be erected, converted, enlarged, reconstructed or structurally altered, nor shall any building or land be used except for a purpose permitted in the district in which the building or land is located.

The judgment appealed from contains no findings of fact. It decrees that the issues are found in favor of the City of Highland Park and denies the petition for writ of mandamus.

The writ of mandamus will only be granted when the right to have a duty performed by a respondent is clear and unequivocal, People ex rel. Nat. Bank of Austin v. Cook County, 56 Ill App2d 436, 448, 206 NE2d 441 (1965); People ex rel. Delgado v. Morris, 334 Ill App 557, 563, 79 NE2d 839 (1948).

The City argues that petitioner has not sustained its required burden of proving that a nonconforming use predated the annexation of the premises to the City of Highland Park. A review of the testimony of the witness Ramsey and the inconclusive and somewhat confused testimony of the witness Peterson would tend to support that position. However, the fact that the City did issue building permits for two new greenhouses, which the evidence fairly shows were completed in 1926, shows a recognition of such nonconforming use, making it inequitable and unjust to permit the public body to retract what it previously had done. See New-Mark Builders, Inc. v. City of Aurora, 90 Ill App2d 98, 102, 233 NE2d 44 (1967).

We are of the opinion, nevertheless, that the judgment of the trial court was correct in denying the writ. The ordinances, particularly section 14-5, prohibit the increase of a nonconforming use “beyond the area or space within such building actually devoted to such use” (at the date of the adoption of the 1952 amendment) ; and further prohibit the expansion or enlargement of a nonconforming use “by any addition to or alteration or remodeling of the same” (excepting “ordinary repairs”).

The proposed changes, of course, cannot be justified under the exception as ordinary repairs. They do, however, come within the prohibition of the extension of a nonconforming use beyond the area within the building actually devoted to the use and within the prohibition against expansion or enlargement of the use by additions, alterations or remodeling.

The power to regulate nonconforming uses includes the power to limit alterations of the use, and there is no substance to the argument of petitioner that the ordinance prohibits the more efficient and more profitable use of the premises as this contention might be applied to any property in any zoning district. Mercer Lumber Co. v. Village of Glencoe, 390 Ill 138, 146, 60 NE2d 913 (1945). Nor are we persuaded by petitioner’s argument that the proposed commercial use occupies somewhat less space than the total of the house and greenhouse buildings now on the property, inasmuch as this computation requires the inclusion of the residence which essentially conforms to the single-family residential use classification under the Highland Park Zoning Ordinance. The removal and replacement of existing structures, the construction of an addition to the existing greenhouse, and the construction of a new building to house a garden shop seems clearly to constitute an unlawful expansion or enlargement of the nonconforming use within the City’s ordinances.

Petitioner cites Federal Elec. Co. v. Zoning Board of Appeals of Village of Mount Prospect, 398 Ill 142, 75 NE2d 359 (1947), and People ex rel. Delgado v. Morris, supra, in support of its theory that the contemplated demolition, construction and remodeling do not constitute an improper expansion of the nonconforming use since there is no change in the type of use and no extension of the use beyond the premises or tract. We cannot reach the same conclusion from an analysis of these holdings. In Federal, the ordinance before the court merely prohibited expansion of a nonconforming use in general terms. The nonconforming use consisted of two steel towers for radio broadcasting, and the court held that the erection of large signs on the towers, advertising the owner, was not prohibited as the use was not thereby expanded. In Morris, an earlier and different ordinance of the City of Highland Park, which provided that a nonconforming use may be extended throughout the building or premises, was construed to permit the owner to remodel within the bounds of the existing building devoted to multifamily nonconforming use, since there was no restriction on increasing the intensity of use within the terms of the ordinance.

The issuance of the original building permits, which we have alluded to as estopping the City from denying that a nonconforming use existed, affords no basis for petitioner’s claim that the City is estopped from preventing an unlawful expansion. The continuation of an existing nonconforming use, subject to appropriate amortization provisions, is not synonymous with the razing and rebuilding proposed by the petitioner. See Boward v. The County of Cook, 27 Ill2d 52, 54-55, 187 NE2d 676 (1963).

Section 4-9 of the Highland Park Zoning Ordinance, supra, militates against the petitioner’s proposed reconstruction of a building for use as a greenhouse in a residential area classification unless such reconstruction is protected and provided for in the nonconforming use provisions. As discussed above, the court finds no such protection for the proposed development in Article 14.

In view of our holding, we do not find it necessary to consider the effect of the amortization provisions of the ordinance.

Petitioner has failed to establish a clear right to the issuance of the writ of mandamus and we, therefore, affirm the holding of the trial court.

Affirmed.

DAVIS, P. J, and MORAN, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Paul Miller and Rocco Circelli, Defendants-Appellants.
    Gen. No. 69-131. (Abstract of Decision.)
    Second District.
    April 9, 1970.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Carl Yocum, Defendant-Appellant.
    Gen. No. 69-144.
    Second District.
    April 9, 1970.

      John T. Beynon, Public Defender, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, and William R. Beu, Assistant State’s Attorney, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendant, Carl Yocum, appeals from a judgment of conviction and sentence of 3 to 10 years after a jury verdict finding him guilty of Involuntary Manslaughter.

He claims deprivation of a fair trial because of newspaper publicity, and also urges that he was not proven guilty beyond a reasonable doubt.

On October 7th, 1968, three-weefc-old Carol Yocum died.

Dr. Joseph Hosek, a pathologist, testified to the results of his autopsy examination performed on October 7th, approximately one-half hour after the child’s death. On external examination of the body he found black and blue marks on the buttocks, measuring about two and one-half inches at greatest length. On examination of the infant’s head he found a subarachnoid hemorrhage and also a subdural hemorrhage. In this area, which was over the occipital and parietal lobes of the left cerebrum hemisphere, the brain was very soft; and the remaining part of the brain was swollen because of the increase in pressure caused by the hemorrhage. There were no external marks on the head in the area of the damage.

The Doctor concluded that the cause of death was the pressure of the hemorrhage on the brain. His further opinion was that “this type of hemorrhage is usually the result of a head injury.”

He ruled out birth injury because the hemorrhage “looked like it was a week old,” plus or minus a couple of days. He said the symptoms of the injury might “take a while” to appear. On examination of the thymus he found nothing wrong.

On cross-examination, the Doctor alluded to reports in the literature and textbooks that spontaneous subdural hemorrhages can occur as a result of a bleeding tendency or infection, and said “so one cannot be absolutely certain, but still this type of hemorrhage is usually related to head injury.” The Doctor ruled out other causes because there was no history of any bleeding tendency or finding of infection.

The Doctor also testified that the cause of the injury would not necessarily have been a blow to the head itself; that there were reported cases of forces originating at the buttocks and feet which could be transmitted to the brain. He could not say which force caused the particular injury but testified that it was due to trauma. The Doctor’s final conclusion of the cause of death was that “I would have to say it was caused,” by a head injury.

The baby’s mother, Mary Ann Yocum, testified that there was nothing wrong with the child at birth. Both she and defendant tried to stop the baby from crying on September 30th, 1968. She said,

“Well, Carl had taken the baby into the bedroom, and was going to put her into the bed. And then he went out and she was crying, and I picked her up and she kept crying, and he walked into the bedroom and he went and dropped her on the bed and she bounced up and hit her head on the headboard.”
Q. “Was he angry at that time?”
A. “Well, he was upset, he wasn’t mad.”

The mother further testified that it was the left side of the baby’s head which hit the headboard; and following this she noticed a little red mark on the child’s head over the left ear, but this was gone the following day. She referred to black and blue marks on the baby’s buttocks, and related a conversation with defendant in which she said to him that he “shouldn’t have hit her, that he was going to hurt her”; and to her husband’s answer that “he knew he shouldn’t have done it and didn’t know why he did it.”

Mrs. Yocum related that they took Carol to the Doctor on October 2nd for treatment of a cough, at a neighbor’s suggestion. The Doctor examined the baby and sent her home without prescribing medicine. It was the next day she found the black and blue marks on the baby’s buttocks. That night the child choked on the bottle and stopped breathing for a couple of seconds and turned black and blue. They called a rescue squad and the baby seemed all right. The child appeared white that night and didn’t cry or wait for her bottle, so they took her to the hospital the next morning which was Friday, October 4th, where she remained until her death on October 7th.

The mother also testified to an incident on September 29th when defendant held the baby out from him and dropped her on the seat of their car because of the child’s crying.

On cross-examination, Mrs. Yocum admitted that she had stated to defendant’s counsel prior to trial that her husband didn’t “intentionally” hurt the baby and that when he dropped the baby on the bed it was an “accident.” However, on redirect examination she testified,

“No, it wasn’t an accident, he just dropped her,”

and repeated on recross:

“It wasn’t an accident when he dropped her on the bed.”

Mrs. Yocum’s sister, Alice Law, who was living with the Yocums at the time in question, testified to events of September 25th and shortly after midnight, on September 26th. She said the baby was crying and the defendant brought the baby into the bedroom while she remained in the other room. She heard the sound of the bed squeaking and heard defendant “cussing the baby” just before that. She also testified to hearing the sounds of the baby being spanked several times and to hearing the baby scream.

Other witnesses testified to defendant’s use of profane language toward the baby on September 24th and 25th when they heard the baby crying. These were neighbors who confirmed hearing the sounds of the baby being slapped and her scream. A brother-in-law of defendant was permitted to testify to a conversation with defendant in July of 1968 in which Yocum was alleged to have said, prior to the birth of the baby, that it was not his, and that his wife had told him that it wasn’t his.

The State called Dr. McIntosh, who had seen the baby on October 2nd and October 4th. He testified that on October 2nd he saw the baby in his office and that the defendant and his wife told him that she had a cold. He made a general physical examination and did not observe any marks on the baby and concluded that she was healthy and normal at that time and that there was no evidence of a cold. He saw the child two days later at the hospital and said that the baby was quite ill at that time. She appeared to be having spasms, generalized convulsions and was having difficulty breathing. He said he asked the defendant and his wife what they thought had happened to the child and the defendant said that the night before the baby seemed to choke on feeding, and since then hadn’t eaten and seemed to be lethargic. He asked if there could be any injury to the baby and they said they didn’t know of any. He noted bruises on the buttocks at that time which he did not recall seeing two days before, on October 2nd. Defendant or the mother said that the baby had bumped the side of the crib.

The State also called Dr. Fouts, who saw the baby at the hospital on October 3rd in the emergency room. He noted a history that the child had choked on milk after someone had been swinging the baby, but he found nothing unusual on his examination and concluded that the baby had gotten something in her throat and “dry choked” as babies often do. He advised the parents to see Dr. McIntosh, their family doctor, if there was more trouble.

Carl Yocum testified in his own behalf. He denied the conversation with his brother-in-law, but confirmed that he had been told by his wife that the child was not his. With reference to the date of September 25th, he could not recall spanking the child or swearing at her and could not recall swearing at the child at any time. He said that on September 28th he did not swear at Carol Ann or spank her.

He related that on September 30th the baby was crying and he took her in his arms; the alarm clock radio on the headboard of the bed came on and it was such a blare that he went to shut it off and in leaning over, the child gave a little tug with her feet and she rolled off his arm. He tried to catch her but avoided falling on top of her. He then picked her up and said he was sorry it had happened.

At a further stage in his testimony, defendant admitted that on occasion he had patted the baby on the bottom but that it was not sufficient to cause a bruise and that he was not angry when he did it.

On cross-examination, he admitted that he did not tell the Doctors at the hospital about the baby being dropped and her hitting her head on the bed.

Defendant’s claim that he was not proven guilty beyond a reasonable doubt is substantially premised on his argument that the State did not prove that a criminal act was committed by defendant which was the cause of the death.

The indictment charged defendant, in the language of the statute, with Involuntary Manslaughter “in that he, while acting in a reckless manner, performed acts which were likely to cause death or great bodily harm to Carol Ann Yocum, in that he struck, beat, dropped, threw and killed said Carol Ann Yocum without lawful justification.” The evidence was sufficient to support the jury’s verdict.

The only eyewitnesses to the acts of defendant on September 30th were the child’s mother and the defendant. The mother testified that defendant, after unsuccessfully trying to stop the child from crying, dropped the three-week-old infant with sufficient force to cause her to bounce off the bed and strike the headboard. While the mother at one stage in her testimony used a conclusion that “it was an accident,” it is clear from all of her testimony that she was saying that the dropping was deliberate although she believed defendant did not intend its consequences. The exculpatory version by defendant of the incident made an issue for the jury’s determination of credibility.

In addition to the defendant’s acts on September 30th, there was other evidence of trauma resulting from defendant’s conduct toward the child. The mother testified to spankings which were sufficient to cause substantial bruises on the infant’s buttocks. And there was circumstantial evidence which contradicted defendant’s version of an accidental dropping of the child, including use of profanity toward her on a number of occasions before, and including the September 30th incident. The denial by defendant, again, made an issue for the determination by the jury.

Defendant also urges that the testimony of the pathologist was vague and unsatisfactory, particularly in view of the testimony of the Doctors who treated the child prior to her death and found nothing wrong. We cannot agree. Dr. Hosek was clearly of the opinion that the death was caused by a head injury. His response to other possibilities which could be the cause of death was not inconsistent with that opinion, there being no history of congenital defect, bleeding tendencies or infection. Nor was his testimony rendered unsatisfactory by his statement that he could not isolate the particular act which would cause the effect which he found, since either the striking of a child of the age involved on the buttocks if with sufficient force, or the dropping of the child with the force shown by the uncontradicted evidence, could account for the resultant injury.

The statements of Dr. McIntosh and Dr. Fouts were not inconsistent with the finding of the pathologist, since neither was given a history of trauma.

We do not find the evidence so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of defendant’s guilt, and therefore cannot disturb the jury’s finding of guilt. The People v. Crews, 38 Ill 2d 331, 335, 231 NE2d 451 (1967); People v. Kinzell, 106 Ill App2d 349, 359, 240 NE2d 319 (1969).

Defendant also claims that newspaper publicity during the trial was prejudicial, requiring a reversal.

The trial began on November 25th, 1968. The jury was not segregated, but it is conceded that the jury was admonished not to discuss or read about the case. The Rockford Register Republic, the only local evening newspaper, contained an article the evening of November 25th entitled “Child Abuse, Tough To Detect, Tougher To Predict, Prosecute.” There was no reference to the instant case, but there was a review of the subject of child abuse.

On the following day, November 26th, the same paper, in its morning edition, printed another article captioned “Mother Testifies in Homicide Trial.” This article was essentially factual except that it referred to defendant’s statement to police that he admitted dropping the child on the bed, although the defendant’s statement was not introduced until a later day of the trial. It was also stated in the article that Mrs. Yocum agreed with this statement by the defendant but that her further statements were very inconsistent.

Defendant’s counsel brought both articles to the attention of the trial judge on November 26th and moved for a mistrial.

The court questioned the entire jury. With the exception of two jurors, all stated they had not seen the articles. One juror said that her husband had pointed out the evening article without further comment, and that she saw only the first part which referred to a child’s finger being broken, and read no further. The remaining juror said he read only “the caption of the morning article” and “skipped it all. I had to.” The court thereupon denied defendant’s motion for a mistrial.

Defendant’s new trial motion did not specifically raise the issue of newspaper publicity, but we review the question on the basis of the record.

No authorities have been furnished in defendant’s brief or argument to support his position. We have reviewed the findings of a representative number of Illinois cases on the subject and conclude that the court did not abuse its discretion in denying the motion for a mistrial under the circumstances of this case.

The jury was previously admonished not to read about the case. The court undertook to inquire whether there was any violation and was entitled to believe the jurors’ answers. While defendant argues that the jurors must have read the articles and presumably responded untruthfully, there is no evidence of any kind to support the bare assertion. The jury was told in several instructions that it was to consider only the evidence in the case, and should not be influenced by anything other than the law and evidence in the case. We find no basis for an inference that the jury was influenced or prejudiced by the articles. The People v. Brinn, 32 Ill2d 232, 238, 204 NE2d 724 (1965); The People v. Hagel, 32 Ill2d 413, 415, 206 NE2d 699 (1965); and The People v. Malmenato, 14 Ill2d 52, 63, 150 NE2d 806 (1958). The article concerning the trial contained no more than information which the jury acquired from the evidence during trial and was not of an inflammatory nature. See The People v. Taylor, 32 Ill2d 165, 170, 171, 204 NE2d 734 (1965); and People v. Robertson, 74 Ill App2d 360, 363, 220 NE2d 5 (1966).

The People v. Murawski, 394 Ill 236, 68 NE2d 272 (1946), is clearly distinguishable. In that case there was no record of questioning by the court, the article was replete with facts which did not and could not come before the jury, and the prejudice was compounded by the reference to terms used only in the article, in the argument of the prosecutor. The People v. Cain, 36 Ill2d 589, 224 NE2d 786 (1967) is also distinguishable on its facts. The headlines there were clearly prejudicial and contained matters which were not properly for the jury’s consideration; the court failed to make a fair investigation to determine if the juror was prejudiced; and the court refused an instruction tendered by the defense that the jury should not consider newspaper articles.

The publicity during trial did not deprive defendant of his right to a trial before a fair and impartial jury.

On the complete record we find that defendant was properly found guilty beyond a reasonable doubt in a trial free from reversible error, and we, therefore, affirm the judgment.

Affirmed.

ABRAHAMSON and MORAN, JJ., concur.

       Ill Rev Stats 1967, e 38, § 9-3.
      “A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.”
      Ill Rev Stats 1967, c 38, § 4-6. Recklessness.
      “A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. . . .”