author: STOUDER, P. J.

text:
    Harry Norman Boose, Plaintiff-Appellee, v. Salvatore Digate, Defendant-Appellant, and Ralph Erickson, d/b/a Prairie Lake Hunt Club, Defendant.
    Gen. No. 68-84.
    Third District.
    March 26, 1969.

      George Hupp, of Ottawa, for appellant.
    Peter F. Ferracuti, of Ottawa, for appellee.
   STOUDER, P. J.

Plaintiff-Appellee, Harry Boose brought this action in the Circuit Court of LaSalle County seeking damages for the alleged negligence of Salvatore Digate, Defendant-Appellant and Ralph Erickson, Defendant, d/b/a Prairie Lake Hunt Club. A jury returned a verdict in favor of plaintiff Boose against defendant Digate assessing damages at $40,000 from which judgment the defendant has appealed. The jury also found the issues against the plaintiff and in favor of the defendant, Erickson and no cross appeal from the judgment entered thereon has been taken. Appellant’s post-trial motions were denied.

On November 25, 1965, Ralph Erickson owned and operated the Prairie Lake Hunt Club, a controlled shooting area duly licensed by the State of Illinois. On the date in question plaintiff was, and had been, a Police Captain of the Ottawa Police Force for ten years. Since 1958 he had been a part-time guide at the Prairie Lake Hunt Club and in consideration of such services he was permitted to use the facilities of the club. On the date aforesaid, plaintiff, together with a young friend, Robert Blodgett, age fourteen, pursuant to prior arrangements with the owner of the hunt club, had received permission to use the club’s facilities. As they were approaching a duck shooting area, plaintiff was struck in the eye by a shotgun pellet discharged from the gun of defendant, Digate. As a result plaintiff lost the sight of his eye and such injury precipitated this action.

Defendant Digate, in seeking to reverse the judgment, assigns as error first, that improper evidence was admitted and considered by the jury and second, that the plaintiff was guilty of contributory negligence as a matter of law.

We shall first consider defendant’s contention that inadmissible evidence was considered by the jury.

Dr. Ey, an ophthalmologist, treated plaintiff on and after the date of the injury and testified in plaintiff’s behalf. During his direct testimony concerning the nature of the injury, the following ensued. “Q. Doctor, I will ask you if you have an opinion, based upon a reasonable degree of medical and surgical certainty, as to whether there might or could be any further complications with respect to either eye, by reason of the injury which you have described herein in the plaintiff, Mr. Boose? A. Yes. Q. And would you give us your answer? A. This particular eye has been severely damaged in the back. There is a possibility that . . . .” Whereupon the counsel for the defendant, Digate, made the following objection: “Your Honor, I object to the word ‘possibility.’ This is entirely speculative and conjectural. We are talking about what this is, a reasonable degree.” Whereupon the Court sustained the objection. Plaintiff’s counsel then argued that the question was based on a reasonable degree of medical and scientific and surgical certainty, and that the witness was honest enough to follow the instructions of the Court. Whereupon the Court stated: “I have heard the word ‘possibility,’ and I am not satisfied in my mind that a mere possibility is a medical or scientific certainty.” The Court then addressed the witness as follows: “Don’t you understand the question?” Whereupon the witness answered: “I don’t understand the question. I don’t understand what reasonable degree, what reasonable certainty, exactly, means. 50 percent, 25 percent, 75 percent, or what is reasonable.” The Court then responded as follows: “We can’t improve the question any more than we have. If you are unable to understand the question, you may say so. You must base your answer upon reasonable, what is a reasonable degree of certainty in your field. I might say to you, Doctor, if you understand this, not one chance in a thousand, not one chance in a thousand of speculation or guess or conjecture or some hope or guess, but what in the field, what you understand would be a reasonable degree of assurance. Now, I can’t improve any more on that. If you can answer the question, please do so. If you can’t answer the question, say so.” Whereupon the Doctor answered the question as follows: “A. This particular eye, the right one that was injured, has a 50 percent chance of being removed in the next ten years.” Upon being asked the reason for his opinion the Doctor explained that a secondary glaucoma (pressure in the eyeball) could result, requiring removal of the eye. He also testified to the reasonable medical expenses of such an operation and problems incident to replacement of the eye with an artificial eye.

On cross-examination Dr. Ey was questioned by counsel for the defendant as follows: “Q. Doctor, Mr. Ferracuti asked you on direct examination about the matter, the future problems of the eye, and you made an answer to that question. You understand what the word ‘speculation’ means? A. Yes. Q. Is there an element of speculation in your answer which you gave here ? Is there an element of speculation, Doctor? A. Yes, there is an element. Q. Doctor, you are guessing to some extent with respect to Mr. Boose’s case, is that correct? A. With respect to Mr. Boose’s case, yes. Q. So that there is an element of speculation and conjecture with respect to Mr. Boose? A. Yes.” Counsel for defendant, Digate, moved to strike Dr. Ey’s answer concerning the possible eventual removal of the eye, for the reason the answer contained an element of speculation and that the witness was guessing with respect to the plaintiff’s case, and that, therefore, the Doctor’s answer did not conform to the requirements of the law. The Court denied the motion and allowed the testimony to stand.

It is well established that the opinions of experts are admissible as exceptions to the hearsay rule on the basis that such experts by virtue of their specialized experience, are able to present for consideration by a jury, matters which would otherwise be beyond the experience of an ordinary juror. An expert, like any other witness, is not permitted to testify concerning the ultimate issues in the case, the determination of which is the province of the jury. This necessarily requires that the opinion of an expert be couched in tentative terms. As a safeguard upon the reliability of such testimony, the expert witness, no matter how skilled or experienced, will not be permitted to guess or state a judgment based on mere conjecture. Schwartz v. Peoples Gas Light & Coke Co., 35 Ill App2d 25, 181 NE2d 826, and Kanne v. Metropolitan Life Ins. Co., 310 Ill App 524, 34 NE2d 732. The guess of an expert is of no more probative value than the guess of any other witness and if the opinion of an expert is a guess, the expert is in fact not performing his function of providing information as a result of his alleged expertise. In general, the testimony of a medical expert may have two aspects, the first aspect being that related to causal relationships and the second dealing with the nature and extent of any resulting condition of ill health. While these aspects are not completely independent they do serve as a foundation for understanding the probative value of medical evidence. The three cases relied upon by defendant appear to be cases primarily concerned with the establishment of a causal relationship. Schwartz v. Peoples Gas Light & Coke Co., 35 Ill App2d 25, 181 NE2d 826 (cause of a fire); Lyons v. Chicago City Ry. Co., 258 Ill 75, 101 NE 211 (cause of deafness) and Kanne v. Metropolitan Life Ins. Co., 310 Ill App 524, 34 NE2d 732 (cause of death). In each of the foregoing cases the court concluded that the opinion on cause was based on conjecture, because the facts which were the basis of the opinions were not supported by the evidence. For example, in the Lyons case, supra, the doctor’s opinion was based on a “suspicion” that plaintiff had sustained a fracture but there was no evidence that plaintiff had, in fact, sustained any fracture.

In the instant case it appears that the Doctor was unfamiliar with the legal phraseology which gives a medical opinion its legal perspective. The testimony objected to relates to the nature and extent of plaintiff’s injury and in particular to future conditions. What such future conditions will be or will not be is a matter of foresight and necessarily a somewhat cloudy vision of the future. When a Doctor is asked to base his opinion on a reasonable degree of medical certainty the certainty referred to is not that some condition in the future is certain to exist or not to exist. Rather, the reasonable certainty refers to the general consensus of recognized medical thought and opinion concerning the probabilities of conditions in the future based on present conditions. In this context we do not believe the cross-examination of the Doctor reveals that in a legal sense the Doctor’s opinion was based on guess or surmise. The speculation referred to by the Doctor was, we believe, a recognition that there was nothing in the plaintiff’s present existing physical condition from which it could be concluded that plaintiff would or would not be one of those patients requiring eye removal at some time in the future. In his direct testimony the Doctor described the medical basis, i. e., development of a secondary glaucoma, which might affect plaintiff’s condition in the future. Therefore his conclusions concerning future probabilities were not based on guess or surmise and in our opinion his testimony was admissible and properly considered by the jury. Theodosis v. Keeshin Motor Express Co., 341 Ill App 8, 92 NE2d 794, and Williams v. Walsh, 341 Ill App 543, 95 NE2d 743.

This brings us to defendant’s contention that the only conclusion warranted by the evidence is that plaintiff was guilty of contributory negligence as a matter of law. Since this question involves the application of the rule in Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504, a summary of the evidence, considered in its aspects most favorably to the plaintiff is required. On the premises of the hunt club is located a small narrow lake, three to four hundred yards long, running generally from east to west. On the north side of the lake two dirt ridges or mounds had been constructed more or less paralleling the lake. In the hollow between such mounds, four duck blinds had been constructed. The blinds were small buildings enclosed on three sides with an angular roof. The open side, which faced north or northwest, limited the direction of fire to the north or northwest. Some three hundred yards to the northwest was located the holding area for ducks. As the ducks were released they tended to fly toward the lake and could be shot by hunters in the duck blinds facing in a general north or northwest direction. The ridges of earth and the blinds were designed to limit the direction of shooting to the north or northwest and were further designed so that any shooting in a horizontal direction would result in the shot being directed at the ridge lying to the north of the blinds. The area south of the lake had formerly been used as a hunting area but at the time of the incident a golf course was being constructed at this location. A clubhouse was located southeast of the lake some six hundred feet.

Plaintiff had ascertained that one of the duck blinds was not being used on the day of the incident and he, together with Blodgett, was proceeding from the clubhouse to the duck blind area along the south side of the lake. The path took them over a green which was under construction. When plaintiff was about one hundred feet from the green, he observed defendant Digate standing on the mound on the north side of the lake, south of the duck blinds, with his gun cradled in his arms. When plaintiff reached the center of the green, a distance estimated at from thirty to forty yards from where defendant Digate was standing on the other side of the lake, plaintiff observed a low flying duck approaching from the west and at the same time saw defendant raise his gun to his shoulder and commence tracking the duck. In tracking the duck, defendant swung around about ninety degrees and was facing south at the time he discharged his gun at the duck resulting in the pellet striking plaintiff in the eye. As defendant commenced to track the duck, plaintiff pushed his companion to the ground and was in the process of falling to the ground himself when struck by the pellet. Plaintiff saw defendant as the former was approaching the green but did not call out or otherwise make any audible signal.

One of the rules of the club was that any person approaching a danger area was required to give an audible signal of his approach. Another rule of the club prohibited shooting from the ridge running northerly along the lake and limited duck shooting to the duck blinds. It is the failure of plaintiff to give an audible warning of his approach which it is argued constitutes contributory negligence as a matter of law. There is some dispute in the evidence concerning the purpose of defendant’s presence on the ridge and defendant’s knowledge of any rule restricting duck shooting to the duck blinds. He had previously been hunting from one of the blinds located in the hollow and according to his testimony he was given permission by his guide to shoot from the ridge, the guide denying that such permission was granted. Duck hunters sometimes went up on the ridge to observe the performance of their dogs in retrieving ducks from the lake and it does appear that the defendant had his dog with him for such purpose. So far as this case is concerned it may be inferred that defendant was at a place where the shooting of ducks was not ordinarily permitted.

On the basis of the foregoing facts we are unwilling to hold that plaintiff’s failure to give an audible signal was contributory negligence as a matter of law. Although plaintiff may well have observed defendant at a time when the latter could have heard an audible signal if given, we believe the jury could have inferred that plaintiff was under no duty to give such signal because defendant was at a place where shooting was not permitted. The jury could further have inferred that plaintiff was not bound to anticipate that defendant would or intended to shoot from the ridge. The jury could also have inferred that by the time defendant’s intention to shoot became apparent it was too late to make an audible signal and that plaintiff’s efforts in attempting to avoid the consequences were sufficient under the circumstances. It is our conclusion that the issues were properly submitted to the jury and the resolution of such issues in favor of the plaintiff is supported by ample evidence. For the foregoing reasons the judgment of the Circuit Court of LaSalle County is affirmed.

Judgment affirmed.

ALLOY and RYAN, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE STAMOS

license: Public Domain

text:
    Leonard F. Sydenstricker, a Minor, by His Mother and Next Friend, Ann Sydenstricker, Plaintiff-Appellant, v. Chicago & Northwestern Railway Company, a Corporation, Defendant-Appellee.
    Gen. No. 52,156.
    First District, Fourth Division.
    March 26, 1969.
    Louis P. Miller, Unger & Unger, of Chicago, for appellant.
    Richard M. Freeman, James P. Daley, and James H. Alesia, of Chicago, for appellee.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

Leonard F. Sydenstricker, a minor, brought suit by his mother and next friend to recover for injuries incurred when he fell from the ladder of a tank car standing in defendant’s railroad yard while playing a game of tag with his friends. Summary judgment was entered in favor of defendant and plaintiff has appealed.

Plaintiff charged in his amended complaint substantially as follows:

Defendant permitted a railroad tank car to remain and stand on defendant’s premises unguarded and with no limitation to accessibility from the immediately adjacent residential area;
The premises were unfenced in open view of and no more than 100 feet from the residence of plaintiff and the tank car was so located as to be attractive to children of tender years;
For at least a week prior to the date of the occurrence, children of tender years were in the habit of resorting to the premises and playing upon the tank car and climbing an iron ladder that was attached to and part of the tank car;
Children had been attracted and invited thereto by childish curiosity and instinct, and defendant knew of the aforesaid facts, or should have known of them by the exercise of ordinary care and nevertheless defendant negligently suffered the same to be and remain;
At the time of the occurrence plaintiff was a minor at the age of nine years old and at the time and prior thereto he was in the exercise of due care and caution for his own safety commensurate with his age, capacity and discretion;
On June 15, 1959, plaintiff in the company of other children, attracted and invited by reason of the premises and negligence of the defendant, engaged in playing on the tank car and while playing plaintiff gained access to the top of the ladder and fell to the ground.

Defendant responded by moving for summary judgment and stated substantially as follows:

Plaintiff alleges in his amended complaint that he fell from a standing tank car that was stopped on a siding in the yard of defendant. Plaintiff in his deposition admitted that there was no defect in the tank car;
Plaintiff further admitted in his deposition that he slipped from the ladder of the tank car when he attempted to tag another boy that was playing on the tank car;
Plaintiff admitted he was a trespasser and that his mother had on many occasions forbidden him to go into the yard where the accident occurred. The complaint did not allege that plaintiff was in any respect mentally or physically incapable of appreciating or avoiding the danger that existed when he trespassed upon the property and equipment of defendant;
That HI Eev Stats ch 114, § 72 (1961), was in full force and effect at the time of the occurrence. The statute in substance provides: No one shall go upon any locomotive or car, whether moving or stationary, or any railroad track unless in compliance with the law or permission of the railroad. Plaintiff was in violation of the statute;
Defendant denied that the tank car standing on a siding was an attractive nuisance and averred that there was no genuine issue as to any material fact and defendant was entitled to a judgment as a matter of law.

Plaintiff responded and answered to the motion for summary judgment substantially as follows:

Denied that he admitted there was no defect in the tank car, or that he slipped from the tank while playing tag with another boy, or that he was a trespasser at the time of the occurrence, or that he was forbidden on many occasions to go into the aforesaid railroad yard.

Plaintiff further answered the motion for summary judgment by alleging he was in the exercise of due care and caution for his own safety commensurate with his age, capacity and discretion. Plaintiff denied he was in violation of the aforesaid statute and alleged that the statute has no application for a nine-year-old child and further stated that a violation of such a statute is only one of the facts to be considered in determining whether or not the plaintiff is guilty of contributory negligence; a presumption exists that a person nine years of age is incapable of contributory negligence.

Plaintiff denied that the tank car standing on the siding was not an attractive nuisance.

Plaintiff denied that there were no issues of fact and stated that the issues of fact are substantially as follows:

Defendant was negligent in maintaining a railroad yard containing tank cars on tracks directly adjacent to residential areas where children were known to play, in not maintaining fences or warning signs around the yard, in keeping railroad cars in a place easily accessible to children, whether defendant knew of the attractive nature of such cars to children. Defendant should have foreseen the possibility of children being in an area that was unguarded and unfenced containing railroad cars and whether defendant exercised a sufficient degree of patrol activity over said yard to prevent possibility of children being injured.

Mrs. Ann Sydenstricker in her deposition which was filed by the defendant in support of its motion testified substantially as follows:

Before the accident she had told plaintiff not to play in the railroad yard, told him this every time she caught him there. That plaintiff and his friends always played in the railroad yard. On the day of the accident she was shopping and her husband was at work.
No one from the railroad ever advised her that her son, the plaintiff, was playing in the railroad yard. She never saw any railroad employee chase the boys out of the railroad yard nor had she heard of this happening. On occasions when plaintiff disobeyed her and persisted in playing in the railroad yard, she would punish plaintiff by confining him in the house.
She testified as to the relative ease by which anyone could walk off the street in front of the plaintiff’s home and onto the railroad yard. There were no fences or obstructions to impede or deny access to the railroad yard. She testified that the railroad tank car involved here had been standing at the place of the accident for at least three or four days. In fact, she had chased plaintiff off of this tank car a few days prior to the accident.

The deposition of the plaintiff, Leonard F. Sydenstricker, was substantially as follows:

“My friends and I were playing ‘it’ and I climbed up the ladder of the tank car to tag one of my friends and I fell back and off the ladder, I must have slipped. I hit my leg on the car before hitting the ground, then I hit the ground which was paved with brick. I was knocked unconscious when I struck my head.
“The ladder was secure, I did not notice any oil or debris. The ladder was not wet nor were the steps rotted out. I was at the top rung of the ladder when I fell about nine and a half feet from the ground.
“Before the accident, I played in the railroad yard every day for a year if not 2 years. My mother told me not to play in the railroad yard, she told me this many times, as did my father. I was never chased out of the railroad yard by any railroad workers, nor did I ever see anyone else chased. Neither railroad nor Chicago police ever chased us from the yard.
“The tank car had been standing in the same place for at least eight or nine days. I played on other railroad cars in the yard, but after the accident, I never went into the railroad yard.”

The trial court sustained defendant’s motion for summary judgment. The court found that there was no dispute as to how the accident occurred; nor any dispute as to the facts and circumstances surrounding the accident; that plaintiff as a matter of law occupied the status of an invitee on the defendant’s premises, but as a matter of law, plaintiff’s injuries were not proximately caused by any negligence on the part of the defendant.

OPINION

Plaintiff relies primarily upon Kahn v. James Burton Co., 5 Ill2d 614, 126 NE2d 836 (1955), in support of his theory that the defendant railroad is liable for negligence in failing to fence the area, or otherwise inhibit access to the area and tank car; that it knew or should have foreseen that children might climb a ladder and fall incurring injuries. In the Kahn case, plaintiff incurred injuries when a pile of lumber upon which he was playing toppled over and lumber fell upon him. The Kahn case at page 622 said:

“The test in the case at bar is whether the lumber company in the exercise of ordinary care could reasonably have anticipated the likelihood that children would climb onto the lumber and would be injured if it were not securely piled." (Emphasis supplied.)

There is no allegation here that the railroad tank car was a defective structure. Kahn and subsequent cases require that there be present a defective structure or dangerous agency. The dangerous agency can result from a common instrumentality which of itself is not defective if the instrumentality and its surroundings creates a dangerous condition which is likely to cause injury to children. Smith v. Springman Lumber Co., 41 Ill App 2d 403, 191 NE2d 256 (1963).

The facts in the instant litigation reflect that an essential element of liability is absent, since the injury was not the result of any defective structure or dangerous agency inherent in this parked railroad tank car. In fact, plaintiff fell from an appurtenance, a ladder, in good condition, designed and specifically provided for climbing.

The risk that children may climb and fall from a non-defective stationary object simply because children might be expected to climb upon it when the object is lawfully located for an appropriate and useful purpose is not an “unreasonable risk” so as to produce liability within the meaning of Kahn. Another requirement for liability under Kahn is that a child because of his age and immaturity be incapable of appreciating the risk involved. The risk in climbing is simple and obvious to a child of plaintiff’s age and experience.

In Trobiani v. Racienda, 95 Ill App2d 228, 233, 238, 238 NE2d 177 (1968), the court said:

“Since the Kahn case, to impose liability it must be shown: (1) the occupier knows that young children frequent the vicinity; (2) there is a defective structure or dangerous agency present on the land; (3) that structure or agency is likely to cause injury because of the child’s inability to appreciate the risk; and (4) the expense of remedying the situation is slight.” (Emphasis supplied.)

Plaintiff cites the Trobiani case in support of his argument, but in Trobiani, the plaintiff child incurred his injuries when he fell from a ladder, in a building under construction, and into an open stairwell. The court held that a ladder over an open stairwell in a building under construction constituted a dangerous condition to a minor plaintiff.

In Smith v. Springman Lumber Co., supra, a child fell from an unused fuel oil tank which had been abandoned next to a tree. The owner knew that the children played upon this tank and would climb upon it and swing onto the adjoining tree where they would swing from the branches. The court held at page 407:

“. . . the proper yardstick with which to measure this case against Kahn is whether or not the tank and tree together . . . created a ‘dangerous agency’ which was likely to cause injury to the children.”

Plaintiff also relies upon Halloran v. Belt Ry. Co. of Chicago, 25 Ill App2d 114, 166 NE2d 98 (1960), a sandpile adjoined a railroad embankment on which there were six sets of railroad tracks and the children crossed the tracks to reach and play on the sandpile. Plaintiff left the sandpile and was injured when he slipped and fell under a moving train. This court in Landman v. M. Susan & Associates, Inc., 63 Ill App2d 292, 211 NE2d 407 (1965), said at page 296:

“. . . in the Halloran case, there was a question of whether the sand pile was located in a ‘dangerous environment.’ ”

This court finds that the alleged dangerous agency maintained was that a minor would enter the area, climb a ladder attached to a railroad tank car and in the process fall off. The possibility of the foregoing does not create so unreasonable a risk of injury as to impose a duty to preclude or inhibit access to this tank car, admittedly nondefective, that was susceptible of being climbed.

Climbing is an expected adventure in the life of young children. It is difficult if not impossible for one to guard against children falling as it is to preclude their climbing. A device, structure or other object utilized to prevent or impede young people from climbing another device, structure or object has the same inherent hazard, that of the young person falling while climbing.

If there had been a defect in the ladder, or the tank car, that caused the plaintiff to fall, the facts would obviously take on another legal posture.

In Stanley v. Missouri Pac. R. Co. (La), 179 So2d 490 (1965), a 6-year-old child fell while climbing the sideladder of a freight car parked immediately across from his home. The basis of the alleged liability of the railroad was its failure to fence or otherwise inhibit access of neighborhood children to the freight car, knowing they might attempt to climb the ladder and might perhaps fall while in the process. The court at page 492 held:

“In view (a) of the social utility of the railroad’s conduct, (b) the relative difficulty of safeguarding standing railroad vehicles from climbing children, and (c) the comparatively slight danger to children ordinarily occasioned thereby, a railroad is not liable when children are injured upon a freight or other train car simply because the company left it unattended and should reasonably have been aware of the presence of children in the vicinity who might climb upon it.”

At page 493:

“The only hazard allegedly maintained was that a child might fall as he climbed upon the parked freight car. Under the uniform jurisprudence such a possibility by itself does not create so unreasonable a risk of injury as to impose a duty to inhibit children’s access to the otherwise undangerous climbable object.”

In Schilz v. Walter Kassuba, Inc., 27 Wis 390, 134 NW 2d 453 (1965), the defendant corporation had and maintained four large pipes extending 12 to 15 inches above ground level and they were unguarded, with children having free access to them. The plaintiff, age 10, while playing on the pipes, slipped off and incurred injuries. The defendant alleged that the complaint failed to state a cause of action and upon review the defendant’s position was sustained. The court said, page 455:

“The real question appears to be whether ‘four large black pipes extending approximately twelve (12) to fifteen (15) inches above ground level’ in an accessible area can be deemed inherently dangerous to children even if alleged to be so.”

The court continued:

“Indeed the challenge offered by the risk of falling is probably what provided the fun. There is no suggestion of any surprising danger, such as instability of the pipes or unusual slipperiness.”

At page 457:

“It appears generally to be the rule that a child is bound to appreciate a simple and obvious danger of falling from an object or structure, but is not bound to appreciate a danger presented or exaggerated by a defect in the structure or other peculiar circumstance, which is hidden from the child or which a child would fail to appreciate because of his immaturity.”

In Wilinski v. Belmont Builders, Inc., 14 Ill App2d 100, 143 NE2d 69 (1957), an 11-year-old boy playing “hide and go seek” fell from a ladder at the rear of a building under construction. The ladder was “homemade” and used by the workmen to enter and leave the structure, because the stairs had not been installed. The plaintiff in his complaint alleged that the ladder was defective and that the plaintiff sustained his injuries as a direct result of falling off said defective ladder, and at the trial adduced evidence of the defect. On appeal the judgment for the plaintiff was affirmed, and the court held that the ladder leaning against the building was sufficiently connected to it to be considered part of the building and therefore that the condition of the building as a whole was dangerous and unsafe.

In Ramsay v. Tuthill Bldg. Material Co., 295 Ill 395, 129 NE 127 (1920), the child came onto the property of the defendant and climbed a ladder and played in the sand in one of the storage bins. The child on the day of the accident climbed an attached ladder to a height of about 50 feet on the structure. The child looked down into one of the sand bins and observed that the slide at the bottom was open. He jumped down into the bin to see if he could go through the opening. As he slid down into the bin a quantity of sand covered him and caused his death by suffocation. The judgment in favor of the plaintiff was affirmed.

The court at page 400 said:

While it may be said that neither the sand upon the ground, the ladder, the structure, nor the sand in the bin, were themselves dangerous and the combination of all or any of them was not dangerous, this is only true so long as the sand was inert. But the bin full of sand, with the opening in the bottom, was itself dangerous to any person who would get into the bin. It was especially attractive to children because of the motion of the sand itself and the apparent ease of sliding down through the hole to the ground. The danger would not be apparent to a child, and the conditions constituted an attractive and dangerous combination for children. (Emphasis supplied.)

In Dickeson v. Baltimore & O. C. T. R. Co., 73 Ill App2d 5, 220 NE2d 43 (1965), affd 42 Ill2d 103, 245 NE2d 762 (1969), plaintiff was injured while “flipping” railroad cars. The courts held that defendants had knowledge of the children’s practice of coming on the defendants’ property to “flip” rides on moving trains and thus had a duty to maintain the premises in a manner to protect children from injury. However, the Appellate Court said at page 18:

“A moving railroad train is certainly an instrumentality of great potential danger to children . . . .” (Emphasis supplied.)

at page 33:

“. . . the railroad owed a duty of ordinary care to see that these children were not injured by their moving train.” (Emphasis supplied.)

In Chicago & A. R. Co. v. McLaughlin, 47 Ill 265 (1868), the court said at page 267:

“A railway car, standing by itself upon the track, is, ordinarily, a very harmless object, and, unless there is something in or about it that renders it dangerous, we know no reason why the railway company should be required to establish a guard over it.”

The judgment of the trial court is affirmed.

Judgment affirmed.

DRUCKER, P. J. and ENGLISH, J., concur.


author: JUSTICE ALLOY.

text:
    Paul C. Mettille and Paul J. Mettille, a Minor, by Jessie M. Mettille, His Next Friend, Plaintiffs-Appellees, v. Gulf Insurance Company, a Texas Corporation, and W. & W. Pontiac-Cadillac, Inc., an Illinois Corporation, Defendants. W. & W. Pontiac-Cadillac, Inc., an Illinois Corporation, Counterplaintiff, v. Gulf Insurance Company, a Texas Corporation, Counterdefendant-Appellant.
    Gen. No. 67-96.
    Third District.
    March 27, 1969.

      Delbert T. Been, of Chicago, and White & Sinon, of Ottawa, for appellants; Pool & Langer, and Craig Armstrong, of Ottawa, for appellees.
   Opinion by

JUSTICE ALLOY.

Not to be published in full.


author: JUSTICE RYAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Allen Curry, Defendant-Appellant.
    Gen. No. 68-80.
    Third District.
    March 27, 1969.
    John Allen Curry, pro se, of Joliet, and Vilas Rice, of Carthage, for appellant; Max Stewart, State’s Attorney of Hancock County, of Carthage, for appellee.
   Opinion by

JUSTICE RYAN.

Not to be published in full.


author: MR. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clidell Stevenson (Impleaded), Defendant-Appellant.
    Gen. No. 68-135.
    Second District.
    March 27, 1969.

      John R. Snively, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney of Winnebago County, of Rockford, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendant was found guilty of the offenses of Burglary and Theft after a jury trial, and sentenced to the penitentiary for a term of not less than one year nor more than five years on each of the charges.

Appealing from the judgment, defendant contends: that the indictment is insufficient to confer jurisdiction on the court; that there is a failure of proof of entry of the building with intent to commit a theft or felony; that the corporate existence of the owner of the property in which the alleged offenses occurred was not established; that the proof of the identity of the defendant was insufficient; that the evidence is insufficient to sustain the conviction; that the court erred in the giving of a certain instruction; and that the verdict, signed only by the foreman, was void.

The indictment was in two counts.

Directed to the indictment, defendant’s arguments are that the indictment is void because it fails to recite that the grand jury, which returned it, was duly organized at a court then in session, fails to recite that the grand jury was duly chosen, selected and sworn, fails to recite that the grand jury, upon oath, presented the indictment and fails to recite its own commencement for each charge; that it does not set forth the nature and elements of the offense and fails to state the time and place of the offense; and that it does not commence “In the name and by the authority of the People of the State of Illinois,” and does not conclude “Against the peace and dignity of the same.” All of these contentions have been previously ruled on contrary to defendant’s position. Recitation of the organization, selection and swearing of the grand jury is not required. People v. Sellers, 30 Ill2d 221, 223, 196 NE2d 481 (1964); People v. Shockey, 66 Ill App2d 245, 248, 213 NE2d 107 (1966).

The body of the indictment framed in the language of the burglary and theft statutes has been held to properly set forth the nature and elements of the crime charged. People v. Reed, 33 Ill2d 535, 538-9, 213 NE2d 278 (1965); the failure to specify the time and place in the indictment does not make the indictment insufficient if the date and county are set forth in the charge. People v. Blanchett, 33 Ill2d 527, 533, 212 NE2d 97 (1965).

The commencement and conclusion required under the former constitution no longer applies. People v. Petruso, 35 Ill2d 578, 583, 221 NE2d 276 (1966); People v. Marks, 63 Ill App2d 384, 387, 211 NE2d 548 (1965).

We find also that the chattels were sufficiently described in the indictment. People v. Graves, 331 Ill 268, 272, 273, 162 NE2d 839 (1928). We find, additionally, that the allegation of value in the indictment is sufficient. People v. Kelly, 66 Ill App2d 204, 210, 214 NE2d 290 (1965).

On a separate trial of this defendant there was the testimony of Donald Smith, a police officer, that at approximately 12:45 a. m. on November 4th, 1966, in response to a call he drove with officer Lindquist to an area on Sixth Street. He observed a 1954 blue Oldsmobile backing out from the alley on the east side of the street with no headlights on. This was approximately a block and a half from the Johnson-Guler Appliance Store on Seventh Street. As the car backed out he noticed that it had two white taillights (also described as absent the red lens), as the car stopped after pulling out of the alley. There was one subject in the front seat and one in the back. The headlights were lighted after turning on Third Avenue. The officers followed the car while it turned on Third Avenue and they pulled it over just west of Fifth Street. Both subjects got out of the car and approached the squad car — defendant from the driver’s side, Hobson from the rear. Both officers got out and approached the Oldsmobile and the witness saw a television set upside down between the front and back seat on the floor. In addition to the portable T.V. set, he found two Sony Tape Recorders and a Saturday Evening Post magazine dated October 8th, 1966, in the car. William Hobson admitted breaking the window and taking the stolen items, but denied that defendant was involved, stating that he stopped the defendant, who was driving down the street, and paid him some money to take him home with the items.

Officer Lindquist testified substantially to the same effect as Officer Smith. In addition, he testified that he recognized the defendant and told him what he was looking for and asked him if he had a television set in his car, and that the defendant said he did not. About that time Officer Smith told him that he had seen the television set in the car. At the station Hobson told the witness that he lived at 319 Wall Street and that he had never seen the defendant before, but later he said he lived at 319 Walnut Street, which is where the defendant lives.

Detective Joe Brown testified that he was sent to investigate the incident in the early morning hours of November 4th and he found three torn pages of a magazine inside the broken window of the appliance store along with a large limestone rock lying on the floor. (Both the magazine and the torn pages went to the jury to compare.)

Andrew Guler, owner of Johnson-Guler Appliance Company, Inc., testified that he was called by the police to come to his store at 227 Seventh Street, Rockford, Illinois, at 1:30 or 2:00 a. m. on November 4th, 1966. He observed that the front window of the store in front of the T.V. section had been broken out, and later identified a 19" General Electric Portable Television set and two Sony Tape Recorders as being in the store window when he closed that day and missing when he was called by the police.

The defendant testified that about 1:00 a. m. he went to a liquor store across the street from the appliance store and bought a bottle of wine; that after leaving the store he saw a man walking down the street with a T.V. in his hand near Fifth Street. The man waved him down and asked him for a ride to the Dolwin Hotel; that the man got in the front seat and just as they were pulling away the police came. He denied backing out of an alley. He testified that his car had extra large springs so that the rear was high, and that it was not possible to stand at the rear of the car and look at the floor; that there were three lights in operation, two headlights and a right rear taillight which was red, and only the left rear taillight was not in operation. He testified that he did not know the name of the man who flagged him down until after he got out of jail on bond, and that no one lived with him at his address. The defendant denied that the magazine was in his car and testified to a search of his apartment in his absence.

Rose Sartino, a partner in the liquor store, called as a rebuttal witness for the State, testified that on November 3rd, 1966, she worked at the store until closing time and that it closed at 11:00 p. m. every Thursday night. This was not based on any particular recollection of the date, but upon what always happened.

Defendant argues that there was no proof of the legal existence of the owner of the property or the building because there was only oral proof of corporate existence over defendant’s objection. However, in the absence of evidence to the contrary, as here, the existence of a corporation may be shown by the direct oral testimony of a person with knowledge of that fact. People v. McGuire, 35 Ill2d 219, 232, 220 NE2d 447 (1966).

The substantial portion of the remaining contentions of the defendant add up to the argument that he had not been proved guilty beyond a reasonable doubt. The evidence of the recent possession of the proceeds of a burglary were sufficient in themselves, to sustain the verdict. The jury was not required to believe the defendant’s explanation that he had neither exclusive or joint control of the property and that he was merely giving Hobson a ride. People v. Strutynski, 367 Ill 551, 554, 12 NE2d 628 (1938); People v. Woods, 26 Ill2d 557, 562,188 NE2d 1 (1963). In addition, there was testimony that defendant was seen driving the automobile out of an alley without lights two blocks from the store which had recently been burglarized, together with other circumstances tending to show guilt in the record, which we have previously detailed. While the evidence is conflicting we cannot say that the record does not support the verdict. The conviction may, of course, be sustained upon circumstantial evidence as well as upon direct evidence. People v. Russell, 17 Ill2d 328, 331, 161 NE2d 309 (1959).

The defendant has also claimed that there was no proof of a felonious entry. The evidence of the breaking of the window and the theft from within the close of the premises sufficiently proved the corpus delicti of the offense of burglary. People v. Roldan, 100 Ill App2d 81, 85-86, 241 NE2d 591 (1968).

Under the circumstances it was not error, as claimed by the defendant, to give an instruction relative to recent exclusive unexplained possession of the proceeds of a burglary. Although defendant controverted the factual basis of the instruction, this did not make it improper when given in connection with the State’s theory of the case supported by ample testimony. People v. Carvin, 20 Ill2d 32, 34, 35, 169 NE2d 260 (1960).

The final contention of the defendant that the verdict is void since it was signed only by the foreman does not raise a question of reversible error. We have recently so held in Gille v. Winnebago County Housing Authority, a Municipal Corporation, 104 Ill App2d 470, 244 NE2d 636 (1969). The defendant had the right to poll the jury in open court when they returned their verdict, and waived his right by failure to object or to ask that the jury be polled.

Defendant was convicted of burglary and theft, both of which arose from the same alleged conduct. The trial court first sentenced defendant without specifying either of the two counts. Later in the same day he recalled the defendant and sentenced him, over his counsel’s objection, on each count, the sentences to run concurrently. The original sentence was proper as the verdict of the jury on two counts arising out of the same transaction has the same effect as a general verdict of guilty. However, the concurrent sentences for crimes arising out of the same conduct are improper and the conviction of the lesser crime must be reversed. People v. Schlenger, 13 Ill2d 63, 147 NE2d 316 (1958). Therefore, the conviction of burglary is affirmed and the conviction of theft is reversed.

Affirmed in part; reversed in part.

MORAN, P. J. and ABRAHAMSON, J., concur.

       “The Grand Jury charges: COUNT I. That on the 4th day of November, 1966, in the County of Winnebago and State of Illinois, one CLIDELL STEVENSON and one WILLIAM HOBSON, also known as LEEOY BUTLER committed the offense of Burglary, in that they, without authority, knowingly entered into the building of Johnson-Guler Appliance Inc., a corporation, located at 227 7th Street, Rockford, Illinois, with intent to commit therein a theft or felony, in violation of Paragraph 19-1, Chapter 38, Illinois Revised Statutes. COUNT II. That on the 4th day of November, 1966, in the County of Winnebago and State of Illinois, one CLIDELL STEVENSON and one WILLIAM HOBSON, also known as LEROY BUTLER committed the offense of Theft, in that they knowingly obtained unauthorized control over a 19" General Electric Portable television and two Sony tape recorders, having a value exceeding One Hundred Fifty Dollars ($150.00), the property of Johnson-Guler Appliance Inc., a corporation, CLIDELL STEVENSON and WILLIAM HOBSON, also known as LEROY BUTLER thereby intending to deprive Johnson-Guler Appliance Inc., a corporation, permanently of the use or benefit of said property, in violation of Paragraph 16-1, Chapter 38, Illinois Revised Statutes.”


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Percy Robinson and Theron Burnett, Defendants-Appellants.
    Gen. Nos. 52,397, 52,398.
    First District, Fourth Division.
    April 2, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael Stevenson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendants were convicted of attempt burglary in a bench trial and sentenced to the penitentiary for not less than one nor more than three years. In this consolidated appeal they contend (1) that the prosecutor obstructed the accused in the preparation of their defenses by misrepresenting the State’s evidence prior to trial and (2) that the sentence should be reduced.

EVIDENCE

Testimony of Mrs. Ida Mae Hike, for the State:

On August 24, 1966, about 1:20 p. m., she was looking out of her back window on the first floor at 7100 South Eggleston, Chicago. From that vantage point she was able to see the building located at 451 West 71st Street. The first-floor resident of that building was Mr. Willie Brown, whom the witness had known for nine years. She observed the two defendants attempting to boost a third man up to open Mr. Brown’s window. Knowing that none of the three lived in the apartment, she continued to watch their unsuccessful attempt to open the window. All three men had coats over their arms. After failing to open the window, the two defendants crossed the street and sat down on some steps across from Mr. Brown’s building. Meanwhile the third man had entered Mr. Brown’s building where his mailbox was located. Subsequently the third man returned to the outside, signaled to the two defendants, and all three men then reentered the building. At this point the witness called the police, and Officer Kinnally responded within two or three minutes. Just as he arrived the three men were emerging from the doorway to Mr. Brown’s building. The two defendants were apprehended but the third man went into the alley and was not caught.

Testimony of Officer Frank Kinnally, for the State:

He has been a police officer for 15 years. He arrested the two defendants as they were leaving the building but he did not observe a third man. Later he had occasion to examine the exterior of Mr. Brown’s apartment. He found marks on the front door and the bottom sash had been removed from the rear window.

Testimony of Willie Brown, for the State:

He is the tenant of the apartment in question. On August 24, 1966, he left his apartment for work about 7:30 a. m. and returned about 6:00 p. m. Because his home had been broken into several times before he checked the windows and door locks every day before leaving for work. Everything was in order before he left but upon returning that evening he discovered marks on his front and back doors near the lock, apparently made by a screwdriver or pliers. In addition, the screen had been taken off the back window on the back porch and the sash had been pulled away from the bottom of the window.

Testimony of Percy Robinson, one of the defendants:

On August 24, 1966, he lived at 6748 South Laflin. About 1:00 p. m. on that date he and his codefendant were on their way from his home to Mr. Burnett’s home at 6748 Wentworth. The two homes were almost exactly ten blocks due east of each other. About four blocks from Mr. Burnett’s home, that is, at 71st and Normal, the two defendants stopped outside Mr. Brown’s building and began to lounge around on the steps and propped up against the building. About ten minutes later a third man whom they did not know came out of Mr. Brown’s building and asked the two defendants if they would mind helping him open a window on the first floor. They boosted him up but the man was not able to open the window. The man then went around the back to see if he could get in the apartment that way, and the two defendants crossed the street to continue their discussion. Shortly thereafter the man emerged from the front of the building, told the two defendants that he had obtained entry into the apartment and went around to the back of the apartment again. Neither defendant actually entered the building. The defendant testified that he told the police about the third man and how he and his codefendant had come to help him. He repeated to the police at the station his explanation of how he and his codefendant had become involved with the third man.

The testimony of defendant Theron Burnett was substantially the same as that of his codefendant.

Rebuttal by State:

Officer Kinnally testified that when he arrested the defendants they told him, “Well, we didn’t do nothing, we were just coming from the park and we were going home.”

Anthony Ploszaj, a Chicago police officer for 23 years, testified that when interrogated by him neither defendant ever told him that they had been trying to assist a third party in attempting to open a window at 451 West 71st Street.

OPINION

Defendants’ sole contention for seeking a reversal and remandment for new trial is based on the introduction by the State in rebuttal of defendants’ oral statement in spite of the prosecutor’s representation prior to trial that the State had no oral or written statements of the defendants. The oral statement of defendant Robinson (hereinafter referred to as “the statement”) as testified to by Officer Kinnally was:

Well, we didn’t do nothing, we were just coming from the park and we were going home.

Defendants claim that the State’s failure to apprise them of the exculpatory statement hindered them in the preparation of their defense. They cite Gregory v. United States, 369 F2d 185, which states:

The current tendency in the criminal law is in the direction of discovery of the facts before trial and elimination of surprise at trial. A related development in the criminal law is the requirement that the prosecution not frustrate the defense in the preparation of its case.

That opinion is founded upon Rule 16, Rules of Criminal Procedure for the United States District Courts, entitled “Discovery and Inspection.” We have no such discovery procedures under Illinois law or rules and Gregory is inapplicable.

In People v. Lefler, 38 I112d 216, 220, 230 NE2d 827, the court held that the voluntary character of any out-of-court statement must first be established before the statement is used, even for impeachment purposes, and that an incriminating admission should not be admitted over objection without a preliminary hearing. However, the court also found that the distinction between confessions and admissions was preserved and that as pointed out in People v. Georgev, 38 Ill2d 165, 230 NE2d 851, the furnishing of a list of witnesses to an oral statement as provided by Section 114-10 of the Code of Criminal Procedure (Ill Rev Stats 1965, c 38, § 114-10) applies only to confessions and not to admissions. The statement in the instant case is clearly not a confession.

Defendants next urge that if they had been informed of the statement they might have made a motion to suppress under Miranda v. Arizona, 384 US 436. They were not precluded from making a motion to suppress at the trial (People v. Strader, 38 Ill2d 93, 230 NE2d 569) and actually interposed no objection to the statement. Therefore defendants waived their rights and cannot for the first time raise the issue in the reviewing court. People v. Hubbard, 38 Ill2d 104, 230 NE2d 220.

Defendants request a reduction of the sentence (one to three years) because the judge mentioned that defendants were on trial for four days when the trial commenced on a Monday, was continued to Thursday to bring in an additional witness and concluded on Thursday. However, the record discloses that after finding defendants guilty he ordered a probation investigation. On defendants’ application for probation, their attorney stated that both defendants had served time in the County Jail for previous offenses. The trial judge stated:

I cannot understand why young men this age would not be working or doing something rather than lounging around the streets so many blocks from their home and hanging around pool rooms. These are the things that are not for their well being.
Both are high school dropouts. One of them not only dropped out, he got tossed out because he apparently didn’t want to go to school or take direction from anybody.

We find no reason to reduce these sentences.

The judgments and sentences of the Circuit Court are affirmed.

Affirmed.

ENGLISH and McNAMAKA, JJ., concur.


author: PRESIDING JUSTICE MORAN

text:
    John Willie Chambers, Plaintiff-Appellant, v. Gladys Addie Chambers, Defendant-Appellee.
    Gen. No. 68-152.
    Second District.
    April 16, 1969.
    John R. Snively, of Rockford, for appellant.
    Smith, Penniman and McGreevy, of Rockford, for appellee.
   PRESIDING JUSTICE MORAN

delivered the opinion of the court.

The plaintiff, John W. Chambers, appeals from an amended decree of divorce granted to the defendant, Gladys A. Chambers, on her amended counterclaim, which was based upon desertion.

The pleadings herein reveal that on January 12, 1967, the plaintiff filed his complaint for divorce which, among other things, alleged that two children were born of the marriage and that the defendant deserted him on January 9, 1966. The defendant answered and, by way of counterclaim, alleged that the plaintiff deserted her on January 9, 1966. Then the defendant amended her counterclaim to show that three children, rather than two as originally alleged, were born of the marriage. The plaintiff answered and introduced the affirmative defense of adultery. The pleadings remained in this state until October 3, 1967, when the defendant again amended her complaint, this time on its face, to show that the desertion on the part of the plaintiff commenced on April 15, 1966, and not on January 9,1966.

On March 4, 1968, a hearing was had wherein the plaintiff testified that on Sunday, January 9, 1966, he came home from work and found his clothes in a box in the hallway and the door locked; that he knocked on the door and his wife shouted through the door and said, “There are your clothes out there, leave”; he responded, “I will break the lock off the door and come in,” to which she said, “If you do, I will call the cops.” With this, he got his clothes and left, and stayed with his employer, Melvin Kittoe for about a week and thereafter has lived at various residences in the City of Rockford; that there were two children born of the parties, one prior to their marriage and one subsequent thereto; that he never returned to live with his wife but when he did ask to return she stated that “she was fixing to have a baby and it wasn’t mine and I wouldn’t be happy with it”; that he visited with the older two children and was willing to support them; that he had not had any sexual relations with the defendant since about one week before their separation; and that it would be desirable at this time to have the children remain with their mother.

The employer of the plaintiff, in his testimony, substantiated the fact that the plaintiff moved in with him on the Sunday stated; that the plaintiff has been residing within the Rockford area at all times; and that he was a diligent worker.

The defendant testified that the plaintiff left their home the Thursday before the Sunday episode and when he returned about 6:00 p. m. on Sunday evening, he was drunk; that the Friday before, he telephoned from a tavern and told her that if she wanted any money she would have to come to the tavern to get it and “he was so smart about it ... I said, Tf that is the way you feel you keep it/ because I didn’t go over there. So on Sunday he comes home drunk, and that is when I had his clothes sitting out there”; that in the same conversation she told him that the kids were without food and the rent was not paid; that he returned late one Friday night or early Saturday morning the next month and had sexual relations with her; that she requested that he stay with her at least for the children’s sake, but he got a cab and left without ever returning; and that the third child was born on Saturday, November 5,1966.

In rebuttal, the plaintiff denied all of the material statements made by the defendant in her testimony, as did his employer who returned to the stand as a rebuttal witness.

The above constituted all of the evidence heard by the trial court and, as can be seen, such evidence was in conflict. It is urged on this appeal that the trial judge committed error in two respects: First, his finding of desertion on the part of the plaintiff and, second, his finding that the third child was the legitimate child of the parties, were both against the manifest weight of the evidence.

The law on the subject of what does or does not constitute the manifest weight of the evidence has been reiterated so many times that it seems useless to repeat it here. Nevertheless, the rule is, that where the evidence is in conflict, as in the present case, the court’s findings will not be disturbed unless it is so manifestly against the weight of the evidence that it cannot stand, the reason being that the judge has observed the witnesses and heard them testify. Everett v. Everett, 25 Ill2d 342, 343-344, 185 NE2d 201 (1962); Sullivan v. Sullivan, 79 Ill App2d 194, 197, 223 NE2d 461 (1967); Boyd v. Boyd, 58 Ill App2d 1, 7, 207 NE2d 350 (1965). A review of the record in this case does not reveal that the trial court abused its discretion when it found from the evidence that the plaintiff deserted the defendant.

With regard to the plaintiff’s second contention, concerning the legitimacy of the third child, we refer to the case of People ex rel. Gonzalez v. Monroe, 43 Ill App2d 1, 6, 192 NE2d 691 (1963). In that case the facts established that the complaining witness, who was married but living separate from her husband in the same home, had carried on a clandestine relationship over a period of time with the respondent. The evidence disclosed sexual relationship, a discussion between the parties and a doctor relative to the terminating of the witness’s pregnancy, admissions by respondent of his being alone with the witness on various occasions and much other indicia of the respondent being the father of the child. The evidence was strong enough to convince the jury that the respondent was the father and to convince the trial judge, who denied the respondent’s post-trial motion. However, this Court reversed outright without remand, asserting that clear and irrefragable proof was not presented by the witness as to nonintercourse with her husband during the time the child was conceived (page 8), thereby re-establishing the almost conclusive presumption that a husband is the father of a child born to his wife (page 6). While this Court outlined certain circumstances to rebut this presumption, none of those conditions are present in the instant case. We therefore conclude that the trial court’s finding of legitimacy of the third child was well within the manifest weight of the evidence herein.

The amended decree appealed from is affirmed.

Decree affirmed.

DAVIS and SEIDENFELD, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Donald Peters, et al., Plaintiffs-Appellees, v. South Chicago Community Hospital, et al., Defendants-Appellants, and Donald Peters, et al., Plaintiffs-Appellees, v. Norwegian-American Hospital, et al., Defendants-Appellants.
    Gen. Nos. 52,946, 52,947.
    First District, Third Division.
    March 27, 1969.

      Robert W. MacDonald, William B. Hanley, and Murray B. Woolley, of Chicago (MacDonald & Hanley and Elmer E. Abrahamson, of counsel), for appellants.
    Lester Asher, Benjamin L. Jacobson, and Marvin Gittler, of Chicago (Asher, Greenfield, Gubbins and Segall, of counsel), for appellees.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

The issues involved in these two cases are in substance identical and we have consolidated the cases for hearing on appeal. On a previous appeal (Peters v. South Chicago Community Hospital, 92 111 App2d 37, 235 NE 2d 842), this court held that the trial court could not order the defendant hospitals to recognize and bargain with the plaintiff union. The issue now before us is whether the cross-petition of the defendants seeking an injunction to restrain members of the plaintiff union from striking or picketing the hospital premises was properly denied. A statement with respect to the issues on the first appeal is essential to an understanding of the issues presently involved.

Plaintiffs are officers of the Hospital Employees Labor Program (HELP). HELP is a labor union formed and sponsored jointly by the General Service Employees Union, Local 73, Building Service Employees International Union, and Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Defendants are hospitals chartered under the Illinois General Not-for-Profit Corporation Act.

Plaintiffs brought two separate class actions on behalf of themselves and members of the union. They sought injunctions against the hospitals to restrain them from intimidating and/or coercing their respective employees with regard to union membership and activity and to compel the hospitals to meet with union representatives for the purpose of negotiating and entering into a collective bargaining agreement. The hospitals filed cross-petitions for a declaratory judgment and an injunction restraining plaintiffs from striking or picketing the defendant hospitals. At the close of the first hearing on February 15, 1967, the court entered duplicate orders granting temporary injunctions, both prohibitory and mandatory, as follows:

“A. The parties shall meet forthwith for the purpose of selecting an impartial person or agency to supervise and conduct an election to determine whether a majority of the employees of defendant employed in the following capacities desire to be represented by plaintiffs for collective bargaining purposes and the parties shall participate in such an election:
“Licensed practical nurses, nurses aides, orderlies, ward clerical employees, assistant unit managers, laboratory attendants, medical and X-ray technicians, occupational, inhalation and physical therapists, pharmacy helpers and employees in the housekeeping, maintenance and food service departments.
“B. The parties have an equal right to communicate with the said employees of defendant to attempt to persuade them to join to support the Union or vote in favor of collective representation by plaintiffs or to refrain from so doing.
“C. The parties shall not intimidate or coerce said employees in any manner or by any means whatsoever in connection with their right to join or support the Union or to vote in favor of collective representation by plaintiffs or to refrain from so doing.
“D. Pending further order of this Court, plaintiffs shall not engage in or authorize picketing or a strike of the hospital premises involved herein.”

On appeal we reversed as to Paragraphs A, B and C of the order, but with respect to Paragraph D made no decision because its validity was not then contested. On the hearing following the reversal the trial court vacated Paragraph D over the objection of defendant hospitals, and the sole issue now before this court is the right of the employees involved to strike and picket the hospitals. It is from that order that defendants now appeal.

Defendants’ first contention is that plaintiffs failed on the occasion of the prior appeal to file a cross-appeal contesting that portion of the original order known as the “no-strike, no-picketing portion of the injunction” (Paragraph D) and thereby waived the point and are bound by the original no-strike, no-picketing injunction. The two cases defendants cite, Muren Coal & Ice Co. v. Howell, 217 Ill 190, 75 NE 469, and Jackson v. Glos, 249 Ill 388, 94 NE 502, are clearly distinguishable. In both cases the court held that an appellant may not urge as error that which he failed to assign as error in a previous appeal with respect to the same issue. In the instant case plaintiffs are not challenging the correctness of the trial court’s original order. Rather, they as appellees are defending the propriety of the court’s subsequent order which vacated Paragraph D of the prior order after other portions on which Paragraph D was conditioned had been reversed on appeal.

Moreover, the original order of the trial court which granted the temporary injunction was based on the pleadings. Such an order is provisional in character and may be vacated at any time at the discretion of the chancellor. 21 Ill Law and Practice, Injunctions, §§ 132, 137; Ar-Tiks Systems, Inc. v. Lark Sales Co., 12 Ill App2d 304, 139 NE2d 308. The failure of plaintiffs to file a cross-appeal contesting the validity of that part of the order is not a bar to the trial court’s subsequent vacation of the order.

We proceed to consideration of defendants’ second contention, that the orders vacating the no-strike, no-picketing portions of the injunctions are erroneous as a matter of law. They argue that as applied to not-for-profit hospitals, strikes and peaceful picketing, having for their purpose the pressuring of the hospitals into recognition of the union as the representative of its employees, are contrary to public policy and that the Anti-Injunction Act (Ill Rev Stats, e 48, § 2a (1967)) does not prohibit the issuance of an injunction against such a strike. The union contends that the Anti-Injunction Act applies to privately owned hospitals, even though they are not-for-profit corporations, and that the public policy of the State is to permit peaceful picketing and strikes where public employment is not involved.

The Anti-Injunction Act prohibits the issuance of injunctions in any case involving disputes concerning the conditions or terms of employment to enjoin persons from ceasing to perform any work or labor or from peaceably and without threats or intimidation persuading others to do so or from being on any public street for the purpose of obtaining or communicating information or peaceably persuading others. Ill Rev Stats, c 48, § 2a (1967). Stated broadly, the Act prohibits the issuance of injunctions against peaceful picketing or strikes.

An exception prevails when the purpose of the picketing or strike is illegal because it violates a statute or public policy. Cielesz v. Local 189, Amalgamated Meat Cutters and Butcher Workmen of North America, 25 Ill App2d 491, 167 NE2d 302; East St. Louis Retail Druggists’ Ass’n v. Local 676-D, A. F. of L. Retail Clerks International Ass’n, 3 Ill App2d 325, 122 NE2d 66; Bitzer Motor Co. v. Local 604, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, 349 Ill App 283, 110 NE2d 674.

The question for determination is whether a peaceful strike and picketing directed against a not-for-profit hospital is illegal as being contrary to public policy. The answer lies in balancing two conflicting principles of public policy. On one hand is the right of employees to organize and picket or strike with a view toward obtaining higher wages and better working conditions. On the other hand, not-for-profit hospitals provide a vital service to the community by ministering to the needs of the sick and injured, which needs are immediate and should not be interrupted or delayed. The employees involved range from X-ray technicians and physical therapists to janitors and kitchen help, that is, practically all hospital employees except registered nurses and doctors. We have found no Illinois decision which has considered the issue as it relates to hospitals. However, the Supreme Court of our State has held that the proper and efficient education of children is an overriding public interest of such importance as to transcend the right of custodial workers to strike or picket a public school. Board of Education of Community Unit School Dist. No. 2 v. Redding, 32 Ill2d 567, 207 NE2d 427. Sound health and life are also important to a community.

The rights of those who labor must be respected, but the operation of a hospital involves a public interest of such urgency that labor’s right to strike must yield to the greater importance of the uninterrupted and efficient operation of hospitals, and a number of courts have so held. Mount Sinai Hospital, Inc. v. Davis, 17 Misc2d 727, 188 NYS2d 338; Society of New York Hospital v. Hanson, 185 Misc 937, 59 NYS2d 91, affd 73 NYS2d 835; Western Pennsylvania Hospital v. Lichliter, 340 Pa 382, 17 A2d 206; St. Luke’s Hospital v. Labor Relations Commission, 320 Mass 467, 70 NE2d 10; St. Luke’s Hospital v. Industrial Commission of State of Colorado, 142 Colo 28, 349 P2d 995.

In Mount Sinai Hospital v. Davis, supra, the court said (p 342):

Labor’s right to strike in order to attain its legitimate objectives is of course well recognized in our law. Nevertheless, it is not an unlimited and unrestrained right but must give way to the ever paramount consideration of public interest and public welfare. The basic reason for the establishment of this public policy, from which there has never been any deviation, is that the voluntary, non-profit hospitals care for the sick and the injured, involving the very preservation of life itself.”

In Society of New York Hospital v. Hanson, supra, the court said (p 96):

“The right to strike has proven to be of such proper potency to labor in our industrial history that this court would not curtail it in any respect except for the most impelling of reasons. But there are some contravening considerations which can be of even greater importance to the public interests as a whole. It is difficult to conceive of a public service of greater value than the maintenance of hospitals for the care of the sick and the injured.”

Similarly, in St. Luke’s Hospital v. Industrial Commission of State of Colorado, supra, the court said (p 999):

“Employees of a hospital, whether professional or non-professional, enjoy an employment status quite unlike most other employment relationships. Hospitals are dealing with persons who are third parties to the employees, and these third parties have by reason of circumstances a particular call on the solicitude of everyone connected with the operation of the hospital. Much of the labors of the hospital involve emergency and crisis; minutes of action may mean the difference between survival and death. To vest any organization with the power to imperil efficient operation of such an institution is to give a power which no organization should want, or having, should exercise.”

The rationale and considerations of public policy herein-before stated are applicable to the issues now before us.

A strike by employees such as those here involved would unquestionably have a calamitous effect on the operation of a hospital. In addition to routine care of those requiring medical attention, emergency operations must be arranged. The effective strength of medicines and serums must be continuously preserved under scientific conditions. Meals and special diets must be prepared and served on regular schedules and a host of other functions must be performed. It is our conclusion that the trial court erred in vacating that portion of the order which restrained the union from striking defendant hospitals.

We proceed to consider that part of the order which relates to picketing. There can be no doubt that picketing, even when peaceful, can produce an effect which would impede the normal operation of a hospital and in such case must be enjoined. In the case previously cited, Board of Education of Community Unit School Dist. No. 2 v. Redding, 32 Ill2d 567, 207 NE2d 427, the court held (p 574):

“While picketing has an ingredient of communication, the cases make it clear that it cannot be dogmatically equated with constitutionally protected freedom of speech, and that picketing is more than free speech because picket lines are designed to exert, and do exert, influences which produce actions and consequences different from other modes of communication. (Hughes v. Superior Court of California, 339 US 460, 94 L ed 985; International Brotherhood of Teamsters, Local 309 v. Hanke, 339 US 470, 94 L ed 995.) Indeed, these by-products of picketing which go beyond free speech are self-evident in this case. It is now well established that the latter aspects of picketing may be subject to restrictive regulations. . . .”

In that case school operations were impeded when truck drivers refused to cross picket lines to deliver essential supplies.

The obstructive by-products of picketing, as described in the Bedding case, supra, are not present in every case however and in their absence, picketing should not be enjoined. City of Rockford v. Local No. 413 Int. Ass’n of Firefighters, 98 Ill App2d 36, 240 NE2d 705. In that case the court upheld an injunction restraining a strike by city firemen, but held that “picketing does not of itself contain an inherent threat to public safety and absent proof of actual interference with governmental functions should not be subject to a temporary injunction.” In the instant case there is no evidence that picketing would impede the routine operations of the hospitals and the court properly vacated its injunction restraining such picketing. If the union does in fact picket and it is shown that such picketing impedes the operation of the hospitals, an injunction should issue to restrain the picketing entirely or to confine it to such precise limits as will not interfere with the operation of the hospitals.

The order is reversed and the cause is remanded with directions to enter an order prohibiting the plaintiffs from engaging in or authorizing a strike and for such other and further proceedings as are not inconsistent with the views herein expressed.

Order reversed and cause remanded with directions.

SULLIVAN, P. J. and DEMPSEY, J., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    The First National Bank of Chicago, as Trustee Under the Will and Codicil of Fred W. Powers, Deceased, Plaintiff-Appellee, v. David Powers, David A. Powers, Philip J. Powers, Fred C. Powers, David A. Powers, Jr., a Minor, Jeffery J. Powers, a Minor, Steven R. Powers, a Minor, Candy Jean Powers, a Minor, Lora Jane Powers, a Minor, Jessie P. Schultz, Carl E. Schultz, Jr., Richard E. Schultz, James R. Schultz, Elizabeth Ann Schultz, a Minor, Martha Jean Schultz, a Minor, Carl Eniel Schultz III, a Minor, Margaret Ann Schultz, a Minor, Karen Louise Schultz, a Minor, Richard Eugene Schultz, Jr., a Minor, Susan Jean Schultz, a Minor, James Robert Schultz, Jr., a Minor, Joseph W. Powers and H. C. Mueller, Defendants-Appellees. On Interlocutory Appeal of Hirsch E. Soble, Former Guardian Ad Litem for the Minor Defendants, Petitioner-Appellant.
    Gen. No. 53,271.
    First District, Third Division.
    March 27, 1969.

      Hirsch E. Soble, pro se, of Chicago, appellant.
    Charles T. Martin, J. William Hayton, and Isidore Brown, of Chicago (Bell, Boyd, Lloyd, Haddad & Burns, of counsel), for appellees.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

The First National Bank of Chicago, as trustee under the will and codicil of Fred W. Powers, Deceased, brought an action in the Circuit Court of Cook County to construe the will and codicil. The Appellant was appointed Guardian Ad Litem for the testator’s minor grandchildren who were children of the life tenants under the testamentary trust. On November 16,1967, prior to trial, the Guardian Ad Litem filed a petition for fees in full for services which he had performed from June 8, 1965, to November 13, 1967. On June 17, 1968, the trial judge, after hearing the evidence and arguments, ordered that all proceedings upon said petition be stayed until the final disposition of the case and the apportionment of fees and expenses. The Appellant was also allowed to withdraw his appearance as Guardian Ad Litem for the minor defendants. It is from this order that the Guardian Ad Litem prosecutes the instant interlocutory appeal and contends that the trial judge erred in staying his petition for fees. The plaintiff, First National Bank of Chicago, has submitted a motion to dismiss the appeal which was taken with the case.

It would be improper for this court to reach the merits of the question raised by this appeal because we are of the opinion that the plaintiff’s motion to dismiss the appeal must be granted. The Appellant submits that he had the right to appeal from this interlocutory order since the stay order is, in substance, the granting of an injunction within the intendment of Supreme Court Rule 307 (a) (HI Rev Stats 1967, c 110A, § 307 (a)) which reads in pertinent part:

“An appeal may be taken to the Appellate Court from an interlocutory order (1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction; . .

The order appealed from in the case at bar cannot be characterized as an injunction within the meaning of Rule 307 (a). It is true that the courts will look to the substance rather than to the form of a stay order to determine if it is an injunctional order and therefore appealable. Valente v. Maida, 24 Ill App2d 144, 164 NE2d 538. However, the cases relied upon by the Appellant are distinguishable from the instant case. The cases cited by him which have held that the granting or refusing of a stay order was the granting or refusing of an injunctional order all dealt with orders which directly affected the status or the merits of the pending litigation and directly affected the rights of the parties to that litigation. In Valente v. Maida, supra, the trial court ordered that all proceedings upon a default judgment rendered in favor of the plaintiff be stayed until the issue of insurance coverage could be resolved in a separate action for a declaratory judgment. In Applicolor, Inc. v. Surface Combustion Corp., 77 Ill App2d 260, 222 NE2d 168, and in School District No. 46 v. Del Bianco, 68 Ill App2d 145, 215 NE2d 25, the defendants were held to have the right to an interlocutory appeal from denials of their motions to stay proceedings in the trial court pending an arbitration of the claim.

In the case before us, the order being appealed from does not affect the merits of the pending litigation since the sole person directly affected by the order is the Guardian Ad Litem himself. In Almon v. American Carloading Corp., 380 Ill 524, 44 NE2d 592, an appeal was taken to the Appellate Court from a trial court order which stated that an attorney shall not appear in the future for either party to the controversy. The Appellate Court overruled a motion to dismiss the appeal, and the Supreme Court reversed and remanded the case to the Appellate Court with directions to dismiss the appeal. The appellants contended that the order expelling the attorney from the proceedings possessed the elements of restraint and the enjoining of action so as to bring it within paragraph 202 of the Civil Practice Act permitting interlocutory appeals from orders for injunction (a forerunner of the present Supreme Court Rule 307). In rejecting such an argument, the Supreme Court said at page 529:

“The purpose of an interlocutory injunction is to preserve the rights of some one or more of the parties and continue the property and the rights therein in status quo until the cause can be disposed of on the merits. The order prohibiting Carmell’s appearance in the case as one of the attorneys for the defendants has no bearing on the merits of the litigation. The order appealed from was not of the character intended by the legislature to be covered by paragraph 202 of the statute.”

Likewise, in the case at bar, the issue whether the Guardian Ad Litem was entitled to his fees prior to a final adjudication of the controversy has no bearing on the merits of that controversy involving the construction of certain alleged ambiguities in the will and codicil of the deceased. Therefore, the interlocutory appeal is dismissed.

Appeal dismissed.

SCHWARTZ and DEMPSEY, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Wendell Carter (Impleaded), Defendant-Appellant.
    Gen. No. 68-129.
    Second District.
    March 28, 1969.

      John R. Snively, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney of Winnebago County, of Rockford, and John C. Tower, Assistant State’s Attorney, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendant appeals from judgment of conviction of Aggravated Kidnapping, entered upon his plea of guilty, and sentence of 10 to 25 years in the penitentiary.

Together with three other persons, defendant had been indicted for the offenses of rape and aggravated kidnapping in two counts. On arraignment, pleas of not guilty were entered to both counts. Thereafter, the plea of not guilty was withdrawn as to the second count of the indictment charging aggravated kidnapping, and a plea of guilty was entered in this count. (The first count charging rape was subsequently nolle prossed.)

Defendant contends that the trial court accepted the plea of guilty without adequately explaining to the defendant the nature of the charge and the consequences thereof; that the court improperly considered arrests rather than convictions in the hearing on probation and in aggravation and mitigation; that in giving identical sentences to all defendants the court did not exercise its discretion; finally, that the punishment was excessive.

Defendant contends that the admonishment by the court failed to comply with the requirements set forth in HI Rev Stats 1967, c 38, § 113-4 (c) and Supreme Court Rule 401(b) (HI Rev Stats 1967, c 110A, §401). The pertinent part of the statute requires the court, before accepting the plea of guilty, to “have fully explained to the defendant the consequences of such plea and the maximum penalty provided by law . . . .” The implementing Rule provides, in pertinent part, that the court shall not permit a plea of guilty to a felony “unless the court finds from the proceedings had in open court at the time . . . plea of guilty entered . . . that the accused understands . . . the nature of the charge against him, and the consequences thereof . . . .”

Prior to the admonishment, the record discloses that defendants’ attorney had advised the court that the defendants wished to plead to the second count of the indictment. To which the court said, “aggravated kidnapping?”, and counsel answered, “Yes.”

The court then advised the defendant of the right to trial by jury, the right to confront witnesses, and the right to trial before the judge alone. The court continued:

“And on your plea of guilty the Court might sentence you to the penitentiary for a period of years not less than one or a maximum number of years to be fixed by the Court, or any combination of years not less than the minimum set by the Court and the maximum set by the Court, within the one to the indeterminate number of years fixed by the Court.”

Before accepting the plea from the defendant, the court inquired, “Is there anything about it you don’t understand?” To which the defendant answered, “No, sir.”

When the petition for probation was filed a colloquy occurred in which the court raised the question of whether aggravated kidnapping was an offense upon which probation could be granted, and counsel advised that it was but that rape was not.

We find no reversible error in the court’s admonishment of the defendant.

We note that the defendant does not claim he did not understand the nature of the charge to which he pleaded guilty, but takes the position that it is error for the court not to have more fully explained the offense charged.

However, the defendant was advised of the “nature of the charge” by the court’s statement that the plea was to “aggravated kidnapping.” The Eule does not require that the court state all of the acts which constitute the offense, but that it give its “essence, general character, kind or sort.” People v. Harden, 78 Ill App2d 431, 444, 222 NE2d 693 (1966) (adopted by reference in People v. Harden, 38 Ill2d 559, 563, 232 NE2d 725 (1967)). See also, People v. Doyle, 20 Ill2d 163, 166-7, 169 NE2d 250 (1960).

On this record we distinguish People v. Washington, 5 Ill2d 58, 61, 124 NE2d 890 (1955), and People v. Culbert, 69 Ill App2d 162, 166, 215 NE2d 470 (1966), both of which have been cited by the defendant. In Washington, the nature of the crime was not mentioned and the trial court made reference only to certain counts of the indictment. In Culbert, there was no statement of the offense on acceptance of the plea of guilty.

The defendant was also adequately advised of the consequences of his plea. It is conceded that the trial court was in error in stating that the minimum term was one year rather than two years. However, the trial court correctly advised the defendant as to the maximum penalty provided by law in accordance with section 113-4 of chapter 38 (supra) and having been given a minimum sentence of ten years, the defendant was not prejudiced by the misstatement of the minimum term. People v. Kontopoulos, 26 Ill2d 388, 390, 391, 186 NE2d 312 (1962).

Defendant claims reversible error in the procedure followed by the trial court in the hearing on the motion for probation and in aggravation and mitigation. It is argued that the court made its decision to deny probation partially on the basis of prior arrests rather than upon convictions and, likewise, was thereby improperly influenced in determining the sentence.

A probation report had been introduced which referred to the fact that defendant had been “arrested” on seven previous occasions for misdemeanor offenses. The State’s Attorney referred to arrests of the defendant without objection by hired defense counsel. Defense counsel also referred to arrests in his questioning of defendants as to their prior criminal records. The reports and references as to a codefendant, who was on probation for armed robbery, were likewise to arrests without mention of conviction.

It seems clear in the context of the entire record that all of the parties were intending to refer to convictions rather than arrests. The trial judge, at the time he denied probation and also at the time of the passing sentence, made no reference to the previous record of the defendants, so that we cannot speculate as to what part this played in the court’s decision, but we can conceive of no prejudice to the defendant in view of the vicious nature of the crime and the substantial basis for a severe sentence. While we do not approve of the procedure, we find no prejudice to the defendant sufficient to constitute reversible error. See People v. Riley, 376 Ill 364, 372, 373, 33 NE2d 872 (1941); People v. Adkins, 41 Ill2d 297, 299-301, 242 NE2d 258 (1968).

We also find that the remaining contentions of sentencing error are not substantial. The whole record supports the proper exercise of discretion in the trial court in sentencing each of the defendants to a similar term. There was a marked similarity in the background of each of the defendants and in the circumstances of their participation in the offense.

Finally, the sentence was not manifestly excessive, in view of the violent nature of the crime. The complaining witness was forcibly taken out into the country where she was criminally assaulted by the four defendants. There were repeated natural and unnatural sexual acts committed over a period of approximately three hours. There was evidence of strong resistance by the complaining witness and evidence of bruises and scratches on a large part of her body, evidence that the hymen appeared lacerated and that there was blood present in the vagina.

There was no abuse of discretion in imposing sentence which would justify a reduction of sentence here under the guidelines set forth in People v. Taylor, 33 Ill2d 417, 424, 211 NE2d 673 (1965).

We, therefore, affirm.

Affirmed.

MORAN, P. J. and ABRAHAMSON, J., concur.