text:
    Mary L. Macklin, Plaintiff-Appellee, v. Commonwealth Life and Accident Company, Defendant-Appellant.
    Gen. No. 53,623.
    First District, Third Division.
    February 19, 1970.

      Arthur S. Gomberg and Joel H. Greenburg, of Chicago (Joel H. Greenburg, of counsel), for appellant.
    Stradford, Lafontant, Gibson, Fisher & Cousins, of Chicago (Herbert H. Fisher, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The plaintiff, the beneficiary of an insurance policy on the life of her deceased husband, sued the Commonwealth Life and Accident Company to recover $2,000 under the accidental death provision of the policy. The defendant’s answer raised three affirmative defenses: (1) that the death of the insured, Neal Macklin, was not accidental but was the result of his attacking his wife with a deadly weapon; (2) that he died from a wound intentionally inflicted by her, and (3) that he met his death while attempting to commit a felony.

A reply was filed to the affirmative defenses, and the plaintiff and defendant moved for summary judgment. After considering opposing affidavits, the transcript of the testimony at the coroner’s inquest and the discovery deposition of the plaintiff, the court entered judgment for the plaintiff.

Both parties agree that there were no triable issues of material fact and that summary judgment was the appropriate remedy. Brannen v. LaSalle Nat. Bank, 18 I112d 116, 163 NE2d 476 (1959). The defendant’s only contention on appeal is that its motion for summary judgment should have been granted instead of the plaintiff’s because the actions of the insured culminating in his death preclude recovery.

Macklin died after being cut in the neck by a knife during a quarrel with his wife late in the evening of January 5, 1966. The evidence presented to the court showed that the Macklins had quarreled during their seven-year marriage and that he had struck her five or six times. One of these times was with a chair and the others were with his fists. On none of these occasions did she strike back at him.

On the night of his death she was lying fully clothed on their bed when he came into the bedroom. She accused him of having lipstick on his handkerchief. He told her it was blood and laughed at her. She picked up a vaseline bottle but he caught her wrist and took it from her. He seized her by the hair, pulled her out of bed, swung her against the bedroom door and struck her head three times upon the edge of a trunk. A handful of her hair was pulled out before he released her. He then threw a lotion bottle and a dresser lamp at her, picked up their son’s tricycle and advanced toward her. She ran into the adjoining kitchen and picked up a ten-inch long butcher knife, thinking that if he saw it he would leave her alone. She turned and went to the bedroom door. Her husband was standing at the dresser with the tricycle in his hands. He raised it over his head and raced toward her, but she was too frightened to move. She had the knife in her right hand, pointed downward at her side, next to her full skirt. She turned sideways, closed her eyes and threw up her hand to protect her face as her husband ran into her. The tricycle fell to the floor. Macklin cried out, “I’m cut” and walked out of the room.

He had been stabbed in the left side of the neck. When she took down her hand and opened her eyes she saw the wound and saw blood on the floor. She called the police. Her nephew told her he thought his uncle was dead; she exclaimed that this could not be, and ran to him and picked him up in her arms.

If a person who is insured against accidental injury or death voluntarily engages in a fight or initiates an assault, his resulting injury or death is not deemed accidental if it is the natural and probable result of his conduct. On the other hand, if his injury or death is not reasonably foreseeable or is not the likely consequence of his conduct, it is deemed accidental.

Illustrative of the first situation are the cases of Cory v. Woodmen Acc. Co., 333 Ill 175, 164 NE 159 (1928) and Hutton v. States Acc. Ins. Co., 267 Ill 267, 108 NE 296 (1915). In Cory the insured advanced upon a youth in spite of a warning to stand back or he would be shot. He continued his attack and was killed. The court found that the insured had reason to believe that the man he assailed was armed and that serious injury would be the probable result of his attack. In Hutton the insured was the aggressor in a fight with a man as large and powerful as himself. Hutton walked up behind the man as he was seated at a counter in a restaurant and, without saying a word, struck him a hard blow on the side of the face. In the ensuing fight Hutton’s leg was broken. In seeking to recover under the accidental injury provision of his policy, Hutton contended that his broken leg was neither the anticipated nor probable consequence of his assault. The court stated:

“Where one voluntarily and deliberately engages in a fight or brawl, and places another in a position where he, too, must fight to defend himself, it is a natural result, and one known to all sensible men as likely to follow, that one or both of the combatants will receive more or less serious injury. As to whether the assailant or the one assailed would be the more likely to be injured would depend upon the comparative strength and skill of the antagonists, as well as upon the fortunes of the combat.”

Typical of the cases which hold that a person’s injury or death may be accidental even though he is the initial aggressor, are White v. Penn Mut. Life Ins. Co., 272 Ill App 277 (1933) and Wylie v. Union Casualty & Life Ins. Co., 15 Ill App2d 448, 146 NE2d 377 (1957). In White there was evidence that the insured approached a man from the rear, grabbed him by the arm, jerked him around and, with his fist clenched, asked, “Where do you want it?” The man shoved him away and he fell backwards and struck his head on the sidewalk. He died as a result of his injury. The defendant relied, as does the defendant in the present case, on the Cory and Hutton cases and contended that the beneficiary could not recover because the insured’s death was brought on by his own conduct. The court, in affirming the judgment for the beneficiary, held that the trial judge was warranted in finding that the insured came to his death from accidental means. In Wylie the insured was shot to death by his wife. He had struck her on several occasions but she had resisted only once—on that occasion she struck him with her shoe when he was strangling her. On the night he met his death he twice knocked her to the floor, struck her several times and left the house. After his departure she went into the bedroom, loaded a rifle and sat down on the bed. When her husband reentered the house she heard him say, “I came back to finish the job I started.” As he began to push back the drapes which covered the bedroom door, she raised the rifle and fired at the side of the door. The bullet went through the drapes and struck him. She did not know that he had been shot and she reloaded the gun. She testified that she could not see her husband before he parted the drapes and that she did not intend to shoot him. The court, in affirming the jury’s verdict for the wife who was the beneficiary of her husband's insurance policy, noted that she had neither resisted his abuse nor threatened him with the gun in the past, that the gun had not been loaded for a year and a half and that the fatal shot went through the drapes before he entered the room. The court held that under these circumstances the insured could not reasonably have foreseen that his actions would probably result in his injury or death.

Whether the consequences of an insured’s conduct are accidental or are natural, probable and reasonably foreseeable, depend upon the facts and circumstances of each individual case. In the present case, it does not appear that Macklin could have anticipated that he might be stabbed when he advanced on his wife or that he could have expected some serious injury other than being stabbed. She had never resisted him before and he had no reason to suspect that she would this time. Her prior passive behavior would not lead him to expect resistance with a deadly weapon. There is no evidence that suggests that he saw the knife in her hand. Although she secured it with the hope that the sight of it would deter him, she did not say she had it, threaten him with it or brandish it. She held it by her side and it may have been concealed, or partially hidden, by her full skirt. When she raised her hand as he rushed upon her it was an instinctive movement to shield herself from his impending blow. There is nothing in the record to indicate that she thrust the knife toward him or deliberately held it in a position where it would cut his throat; she did not know that he had run into it until he exclaimed that he had been cut. Under the evidence it cannot be said that he could have foreseen his injury or death, or that either was the probable and natural result of his attack.

The defendant also asserts that Macklin was committing a felony when he was killed—attempt murder, attempt manslaughter or attempt aggravated battery—and that recovery was barred under the following provision of the policy:

“The Company shall not be liable for any loss to which a contributing cause was the Insured’s commission of or attempt to commit a felony. . . .”

It is not seriously argued, and the evidence does not support the conclusion, that Macklin intended to kill his wife. It is earnestly argued, however, that he was about to commit an aggravated battery upon her when he met his death. The defendant contends that this offense is a felony, the plaintiff that it is a misdemeanor. Their contentions are based on the construction each believes should be given the penalty provision of the statute:

“A person who . . . commits aggravated battery . . . shall be imprisoned in a penal institution other than the penitentiary not to exceed one year or in the penitentiary from one to 10 years.” Ill Rev Stats 1965, c 38, par 12-4.

Although the argument of the parties is limited to their respective interpretations of this provision, the issue of whether the offense of aggravated battery is a felony or a misdemeanor has dimensions beyond the scope of their argument. We do not reach the issue, however, because of our conclusion that the evidence does not establish the offense of attempt aggravated battery.

A person commits a battery if he intentionally or knowingly without legal justification and by any means causes bodily harm to an individual. Ill Rev Stats 1965, c 38, par 12-3. A person commits an aggravated battery if, while committing a battery, he intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement to the individual. Chapter 38, par 12-4(a). The offense of attempt is committed when a person, with intent to commit a specific crime, does any act which constitutes a substantial step toward the commission of that crime. Chapter 38, par 8-4.

To establish attempt aggravated battery it must be shown that it was the intention of the assailant to inflict great bodily harm upon his victim. This intention may be inferred from the character of the attempt and the circumstances. surrounding the assault. The words uttered by the assailant, the weapon used and the force of his blow ordinarily indicate the quality of his intention. Macklin’s intention was not disclosed by exclamation or threat; he struck no blow; the tricycle was not per se a deadly weapon though it could have become so depending on its use. His striking her with the tricycle would have caused bodily harm, but whether he would have struck her so forcibly or repeatedly as to cause disfigurement, permanent disability or great bodily harm is purely conjectural. Among the circumstances that must be considered in determining his intention are, on the one hand, the force of his first assault—banging his wife’s head on the edge of the trunk and pulling out a quantity of her hair, and the apparent force of the second assault—raising the tricycle overhead and rushing at her. On the other hand, he had released her after the first assault and there was an interlude between the first and second assaults; he apparently abandoned the attack as evidenced by his not pursuing her into the kitchen; he did not bring the tricycle down upon her or attempt to do so, even though his arms were extended and he came so close to her that.the knife pierced his throat; and the tricycle fell to the floor and not upon her when he dropped it.

Distinguishing between degrees of violence is difficult and the extent to which Mrs. Macklin might have been injured is left to speculation. Without more substantial proof that her injury would have been the serious and grievous kind contemplated by the term “great bodily harm,” it cannot be held that Macklin’s offense, if completed, would have been an aggravated battery.

The judgment is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE DEMPSEY.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Alexander and Ernest Johnson, Defendants-Appellants.
    Gen. No. 54,024.
    First District, Third Division.
    February 19, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellants; no brief for appellee.
   Opinion by

PRESIDING JUSTICE DEMPSEY.

Not to be published in full.


author: MR. PRESIDING JUSTICE CRAVEN

text:
    In the Matter of the Application of the County Collector for Judgment and Sale Against Lands and Lots Returned Delinquent for Nonpayment of General Taxes for the Year 1962 and Prior Years. Petition of Geraldine D. Hoffmann for a Tax Deed. Geraldine D. Hoffmann, Petitioner-Appellee, v. Helen E. Stuckslager and Walter N. Stuckslager, Objectors-Appellants.
    Gen. No. 51,974.
    First District.
    February 20, 1970.

      Jacob Shamberg and Ralph G. Scheu, of Chicago, for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Ronald Butler, Assistant State’s Attorney, and Edward J. Hladis, Chief of Civil Division, of counsel), for County Collector.
    Blair & Buyer of Chicago (Allan L. Blair and Bruce M. Buyer, of counsel), for appellee.
   MR. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court.

Helen E. Stuckslager and Walter N. Stuckslager, her husband, appeal from a judgment order decreeing that Edward J. Barrett, County Clerk of Cook County, issue to Geraldine D. Hoffmann a tax deed to certain real estate.

The order found that at a sale of the lot for nonpayment of general real estate taxes assessed and levied for the year 1962, Interstate Bond Company purchased the real estate; that it assigned the certificate of purchase to petitioner, Geraldine D. Hoffmann; that the time of redemption had expired; that all notices required by law had been given; and that petitioner Hoffmann had complied with all provisions of law entitling her to a tax deed.

The appellants contend that the sale and certificate of purchase issued thereon are invalid, null and void since the tax-sale purchaser did not, on the date of offer for sale, forthwith pay in cash to the County Collector for taxes, interest and costs as advertised in the sale, as required by Section 247 of the Revenue Act of 1939, as amended (Ill Rev Stats 1965, c 120, par 728) ; that the notice served on the husband, Walter N. Stuckslager, did not comply with the statutory requirements since he was not specifically named therein although he had only an inchoate dower interest in the lot and the notice actually was served on him; and that the zoning use of the lot, due to its size and other zoning requirements, would prohibit use of the lot for a single-family dwelling.

We cannot condone the nonpayment of taxes where lawfully due, nor the failure of the owners of the real estate to pay the same over the intervening period of some four years prior to this proceeding, yet we are bound by the strict statutory language applicable.

Titles based upon a tax deed are authorized by statute in order to provide revenue to the taxing bodies. A tax-sale purchaser must strictly follow all requirements of the applicable statutes in order that he may thus be vested with title contrary to the rights of the theretofore rightful owner.

Paragraph 716a of chapter 120, Ill Rev Stats 1965, provides that:

“The County Collector shall include in the advertisement and in the application for judgment for sale under this section the total amount of all general taxes upon said tracts of land or lots which are delinquent as of the date of the advertisement; . . .”

Paragraph 726 of chapter 120, Ill Rev Stats 1965, provides that a person offering to pay the amount due on each tract or lot for the least percentage interest penalty upon redemption thereon shall be the purchaser (except no bid shall be accepted for a penalty greater than twelve per cent of the amount of the tax). Thus, the purchaser’s bid is a percentage and not an amount in dollars.

Paragraph 728 of chapter 120, Ill Rev Stats 1965, provides:

“The person purchasing any tract or lot, . . . shall forthwith pay to the collector the amount charged on such tract or lot, and on failure so to do, the tract or lot shall be again offered for sale in the same manner as if no such sale had been made; and in no case shall the sale be closed until payment is made, or the tract or lot again offered for sale. Provided, in counties having a population of 500,000 or more, . . . only the taxes, special assessments, interest and costs as advertised in the sale shall be required to be paid forthwith in cash. The general taxes charged on the land remaining due and unpaid, not included in the advertisement, shall be paid by the purchaser within 10 days after the sale, . . . .”

Thereafter the section provides for an extension of the 10 days in certain situations, and provides that if the purchaser fails to complete his purchase it shall become void but the collector “shall not refund the amount paid in cash at the time of the sale, except in cases of sale in error. . . .”

It seems clear that the Legislature, in enacting these provisions, deemed it desirable that in a county of large population, doubtless due to the large number of probable tax sales, the purchaser at a tax sale pay in cash on the day of sale the amount for which sale of the lot was advertised and that a period thereafter (such as the minimum of 10 days after sale) be given for the collector to make his up-to-date of sale calculations of any additional taxes, interest and costs due since the date of application for sale and advertisement. No doubt, also, the immediate cash payment on date of sale is required because presumably that would constitute the major amount to be paid. Also, the purchaser would have paid and could not change his mind in the making of the purchase. In any event, the statutory provisions clearly constitute a statutory framework and schedule that contemplate first an advertisement of the sale which includes the total amount “charged,” the payment of that amount by the purchaser at the time of sale, and in default thereof further sale, and thereafter a computation of the general taxes and charges on the land remaining due and unpaid and not included in the advertisement, and the payment of that amount by the purchaser within 10 days of the sale.

In Coombs v. Steere, 8 Ill App 147, 151 (1st Dist 1881), the court did state:

“So long as the purchaser is ready to pay it rests wholly with the collector when he will accept payment, and with the exercise of his discretion in this regard the owner of the land has nothing whatever to do, as he cannot be injuriously affected by it. This is one of those directory provisions of the statute which in no wise concern the owner of the land, as to whom the sale is complete upon the land’s being struck off, if followed by payment when required by the collector. . . .”

However, since that decision, and indeed perhaps because of it, the statutory provision has been substantially changed and the present timetable and procedure have been provided by statutory amendment. In Orchel v. Wittbold, 9 Ill App2d 307, 132 NE2d 825 (1st Dist 1956), the court made reference to the statute as it now exists, and as to the procedure and timetable observed (132 NE2d at 827):

“Under Section 728 a purchaser at a regular public tax sale pays forthwith the amount charged on such tract or lot and has ten days within which to pay all taxes charged on the land remaining due and unpaid. If he fails to complete his purchase by paying all back taxes the purchase becomes void but the Collector does not refund the amount paid in cash at the time of the sale. Instead, that amount is treated as a payment , and is distributed to the taxing bodies as other collections are distributed. However, a lien remains on the land in favor of the purchaser until paid with interest at 5%. . . .” (Emphasis in original.)

The language of Mr. Justice Schwartz in Orchel enumerates the procedure presently required to be followed, although the specific issue submitted for determination in that case relates to the right to enforcement of a lien for taxes in a court of equity.

It is true, as the appellee-purchaser asserts, that in Leavitt v. S. D. Mercer Co., 64 Neb 31, 89 NW 426 (1902), the Supreme Court of Nebraska, in construing its tax statute, determined that the word “forthwith” as used in its statute must be given a reasonable construction consistent with the exigencies of business and that when so construed, “forthwith” necessarily would permit of a time after the sale to permit the county treasurer to become prepared to receipt for the monies due as a result of the sale. The inapplicability of that case here seems to us to be apparent when it is noted that the Legislature provided a period of 10 days to make computations as they relate to nonadvertised delinquent amounts.

We are aware of the cases holding that “absolute perfection” is not required in tax-foreclosure proceedings. People v. Orth, 21 Ill2d 205, 171 NE2d 626 (1961); People v. O’Keefe, 18 Ill2d 386, 164 NE2d 5 (1960). Absolute perfection is not required and we should not permit purely technical objections to thwart statutory provisions to ensure the collectibility of taxes. We cannot, however, under the guise of construction, restructure the statutory framework and thereby forgive noncompliance with the clear legislative mandate.

In the instant case the tax-deed petitioner’s predecessor-in-interest did not pay the advertised delinquent tax amount of $1,013.71 on this lot on the day of sale. Some eleven days later it delivered its check to the County Collector for $60,519.59, representing payment for the taxes due on this and numerous other parcels of land. It appears that check was delivered within twenty-four hours after the County Collector’s office advised the bidder of the total amount of all of its bids.

The tax-sale purchaser’s assignee and the County Collector contend that, as a practical matter, a number of days is required for the Collector to compute the interest due to the date of sale and bills are checked with the buyer’s list to avoid errors. The Collector points out a series of steps which is carried out to recap the entire purchases of a bidder. The contention that the procedure employed in this case is administratively more feasible than the statutory procedure is a matter cognizable in a legislative, not a judicial, forum.

The tax-sale purchaser contends that the delay in payment was solely for the convenience of the County Collector and that a delinquent taxpayer cannot now challenge the same.

The statute clearly requires payment “forthwith” and payment “forthwith in cash” of the amount advertised, and provides an additional period “within 10 days after the sale” to pay any additional sums due or further additional time under certain circumstances. Moreover, the additional language of the statute referring to the date of sale confirms that payment on the date of sale of the amount advertised is required.

The long course of conduct of the office of county collector and the details required to ultimately complete a sale may well cause delay in determining the total sum to be paid. The statute, however, seeks to bind the purchase by immediate payment for the purpose of providing immediate revenue. The purchaser must strictly follow the clear statutory provisions.

As to the appellants’ contention that Walter N. Stuckslager as spouse of the titleholder was entitled to but did not receive proper notice of the application for deed since his name was not specifically stated in the heading of the notice, we cannot agree. He was duly served with the notice which was directed to “the . . . owners of or parties interested in such real estate. . . .” Such a notice was in full compliance with the statutory requirements (Ill Rev Stats 1965, c 120, pars 744 and 747).

Appellants’ final contention in the trial court was that the subject lot was too small alone for a single-family dwelling under the applicable zoning ordinance of the village of Northfield and that if a tax deed were granted to petitioner the use of the lot would become illegal. Appellants have not urged the same on appeal. Hence, they have abandoned and waived this point, so that we need consider it no further.

The objections interposed by the appellants to the petition for a tax deed should have been sustained. The judgment of the Circuit Court of Cook County is reversed and this cause is remanded to that court for further proceedings consistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

SMITH and TRAPP, JJ., concur.


author: MR. JUSTICE SMITH

text:
    Harlem Savings Association, Plaintiff and Counterdefendant-Appellee, v. Bruno Lesniak, Irene Lesniak, His Wife, Unknown Owners, Registrar of Torrens Title and Golden Manor Homes, Inc., Defendants, and Bruno Lesniak and Irene Lesniak, Defendants, Counter-plaintiffs and Third-Party Plaintiffs-Appellants, v. Harlem Savings Association, Counterdefendant-Appellee, and Golden Manor Homes, Inc., Third-Party Defendant-Appellee.
    Gen. No. 52,863.
    First District.
    February 20, 1970.
    Rehearing denied March 25,1970.

      Arthur George, of Chicago, for appellants.
    Haft, Shapiro and Haft, of Chicago (Morris A. Haft, of counsel), for appellee.
   MR. JUSTICE SMITH

delivered the opinion of this court.

The defendants, the Lesniaks (husband and wife), appeal from a decree of the circuit court ordering foreclosure of the property in which they reside. The decree is in error, they say, for three reasons: (1) The agreement wherein they assumed and agreed to pay an existing mortgage was fraudulently obtained; (2) the decree does not provide for a homestead exemption to these defendants as against the mortgage; and (3) that they should have been allowed attorney fees in a separate suit on the mortgage note to be summarily taxed by the trial court in accordance with Ill Rev Stats 1967, c 110, § 41. The errors assigned are without substance.

Golden Manor Homes, Inc. contracted with the defendants to construct, build and convey by warranty deed a residence in an addition to the City of Des Plaines for a total consideration of $22,900. The buyers were to pay $3,000 at the time of the contract and $2,000 at the closing of the transaction and tender of possession. Under the contract the balance of the purchase price was to be paid by the assumption of a construction mortgage loan placed or to be placed on the property by either the LaSalle National Bank as trustee or by the seller and such mortgage was to be not less than $17,900. The contract also stated that the seller had arranged for a twenty-nine year mortgage loan with interest at 5½% with Bell Savings & Loan Association if the buyers qualified with the lender’s requirements. However, Bell was not willing to go the full $17,900 but indicated that it would withhold $800 and that it would not be paid over until the mortgage indebtedness on the property was reduced to $16,000. Golden Manor Homes then made arrangements with Harlem Savings Association, obtained the loan for $17,900, executed and recorded the mortgage and had the Lesniaks sign an assumption agreement in which they assumed and agreed to pay the Harlem Savings Association. There is testimony in the record that this was all explained to the Lesniaks. Both signed the assumption of mortgage agreement. There is in the file an application signed by Bruno Lesniak to the Harlem Savings Association for a mortgage.

The record establishes that the Lesniaks contracted to purchase this property from Golden Manor Homes, Inc., and occupied the property as a homestead. Much time is devoted in the briefs to whether or not they ever waived their homestead exemption rights. We do not reach that question because under the clear provisions of the statute, Ill Rev Stats 1967, c 52, § 3, it is provided:

“But no property shall ... be exempt from sale for nonpayment of taxes or assessments, or for a debt or liability incurred for the purchase or improvement thereof.”

It seems to be the defendants’ position that this is not a purchase money mortgage, but was merely a debt created to Harlem Savings Association by Golden Manor Homes, Inc., and the assumption agreement of these defendants amounts only to the creation of a debt and accordingly homestead has never been waived or released specifically by these parties through any instrument in writing. In our judgment, it defies the facts and reality to assert that this was not a debt created for the purchase or improvement of this property. The contract with Golden Manor Homes specifically provided that Golden would obtain a loan for the Lesniaks and that either the seller or the LaSalle National Bank as trustee under a certain trust agreement would execute and deliver a deed to the Lesniaks “subject only . . . (c) to said construction mortgage loan.” In their contract with Golden Manor Homes, Inc., the contract further recited that arrangements had been made for a loan from Bell and that the seller “has arranged with said lender that buyers may, if they qualify under said lender’s requirement, assume said loan.” The contract further provided that the “buyers will execute in form required by lender and deliver to seller or to lender, a transfer application to assume said mortgage indebtedness and . . . execute a transfer and assumption agreement with lender in form required by such lender, assuming and agreeing to pay such mortgage loan.” There isn’t the remotest doubt but that this entire arrangement was a purchase money mortgage, that the money was paid to the builder for the use and the benefit of the defendants, that the original contract, the assumption agreement, as well as the loan application, were all a part of the same transaction and this was in law and in fact a purchase money mortgage. See Magee v. Magee, 51 Ill 500 (1869). Under the clear provisions of the statute, the Homestead Exemption Law has no application. Stafford v. Woods, 144 Ill 203, 33 NE 539.

The charge of fraud by the defendants either in the inducement or in the execution of these documents with Harlem factually supports no actual misrepresentation, substitution of papers, failure to disclose material facts or any other type of fraud, legal, equitable or otherwise. It is significant also that in a conference in November 1963, and again in May 1964, no assertion was made by either the Lesniaks or their attorney (who attended such meetings), that any fraud existed. It is only after leave was granted to file a second amended answer that the element of fraud was injected into this lawsuit. In addition, it is clear that such fraud as is claimed is directed to representatives of Manor and not of the plaintiff. It is equally clear that defendants were unhappy with Manor for asserted construction deficiencies with which plaintiff had no connection. From this record the difficulties with Manor are separate and distinct from the liability on or the obligation to conform to the assumption agreement with plaintiff.

The defendants moved to transfer this cause to the Chancery Division. The motion was allowed. The suit on the note was dismissed. The plaintiff had the perfect right to do just this. In McDonald v. Culhane, 303 Ill App 101, 105, 24 NE2d 737, 738, the court stated:

“In this State appellant had a right to sue on the principal note which he held and likewise he had a right to foreclose his mortgage. Karnes v. Lloyd, 52 Ill 113. He could take these steps at different times or pursue both remedies at the same time.”

There is nothing here to indicate that the suit on the note was instituted to harass or was either frivolous or unwarranted. Ill Rev Stats 1967, c 110, § 41, upon which the defendants rely, requires that the action against which sanctions are imposed must be without reasonable cause, not in good faith, and that such expenses to be recovered should be “summarily taxed by the court at the trial.” While the statute does not establish the specific time limit within which application for relief must be made, Hlinois courts require that the motion to recover expenses be filed within 30 days after the judgment. Eugene Matanky & Associates, Inc. v. Onixt, 74 Ill App2d 53, 219 NE2d 865; Brooks v. Goins, 81 Ill App2d 12, 225 NE2d 707. We note from the record that no motion was made by the defendant to tax costs and expenses within 30 days of the dismissal. It was not only not filed in time, but was first raised on objections to the Master’s report in this lawsuit. This is a separate and distinct lawsuit and the plain language of the statute is that the motion and a consideration thereof must take place summarily at its trial. Its disallowance in this proceeding simply cannot be error.

Accordingly, the decree of the trial court should be and the same is hereby affirmed.

Affirmed.

CRAVEN, P. J. and TRAPP, J., concur.


author: TRAPP, J.

text:
    Ford Hopkins Company, a Delaware Corporation, Plaintiff, v. Milton D. Faber, Maurice Norman, Norman Drug Co., Inc., an Illinois Corporation, Chicago and Northwestern Railway Company, a Wisconsin Corporation, and I. Robert Ballin, Defendants. Milton D. Faber, Maurice Norman, Norman Drug Co., Inc., an Illinois Corporation, and North Western Retail Shops, Inc., an Illinois Corporation, Petitioners-Appellants, v. Ford Hopkins Company, a Delaware Corporation, and Walter F. Osborn, Respondents-Appellees.
    Gen. No. 53,139.
    First District.
    February 20, 1970.

      Russell J. Topper, of Chicago, for appellants.
    Jay Erens and Edward A. Gorenstein, of Chicago, for appellees.
   TRAPP, J.

Plaintiff’s complaint for breach of a covenant in a contract was dismissed at the close of plaintiff’s case by a decree of March 7, 1967. Defendants’ petition pursuant to section 41 of the Civil Practice Act for assessment of costs and attorneys’ fees, thereafter filed on May 5th, 1967, was dismissed on February 20, 1968. Defendants appeal the order dismissing such petition.

Defendants’ motion for judgment at the close of plaintiff’s proof included a motion that the Master in Chancery find that costs and fees should be taxed under section 41, but the report made no such recommendation.

Defendants objected to the Master’s report, inter alla, that the Master should have but failed to find that the utter incredibility and total impeachment of plaintiff’s witnesses obliged a finding that no credible evidence connected certain defendants with any pertinent conversation with the owner of the premises with regard to the alleged breach. No specific objection was made to the failure to recommend taxation of costs and attorneys’ fees. The Circuit Court overruled the objections to the Master’s report and entered a final decree dismissing the suit.

On May 10, 1967, the Circuit Court allowed defendants to file nunc pro tune as of May 5, 1967, a petition for assessment of costs and attorneys’ fees and for issuance of a rule to show cause against plaintiff, Ford Hopkins, and Walter P. Osborn, why they should not be held in contempt. Osborn was not a party to the suit. On June 6, 1967, the Court denied plaintiff’s motion to strike and dismiss defendants’ petition to tax costs and ordered plaintiff to respond. On June 22, 1967, the Court denied a petition by plaintiff to expunge the order of June 6th.

On plaintiff’s previous appeal to this Court, defendants contended that the order to answer the petition was not an appealable order. This Court allowed the motion to dismiss the appeal. Plaintiff’s petition for leave to appeal to the Supreme Court of Illinois was denied, and a petition by plaintiff to the Supreme Court of Illinois for leave to file an original writ of mandamus to vacate the trial court order was denied.

Defendants contend that the mandate of this Court on the previous appeal and the mandate of the Supreme Court on the two efforts to obtain a review by that Court constitute the law of the case and require the trial court to proceed to a hearing on the merits of the section 41 petition.

The issue presented to this Court on plaintiff’s previous appeal was formed by defendants’ motion to dismiss for lack of an appealable order, and the allowance of said motion did not touch the merits of the case. It follows that denial of leave to appeal to the Supreme Court of Illinois and the denial of leave to file a petition for an original writ of mandamus did not determine the issue here raised.

On February 20, 1968, subsequently to the trial court’s orders and the dismissal of plaintiff’s appeal, the plaintiff filed a new motion to dismiss defendants’ petition, and for the first time raised the issue of the trial court’s jurisdiction to consider such petition under the rule announced in Eugene Matanky and Associates, Inc. v. Onixt, 74 Ill App2d 53, 219 NE2d 865. In such opinion there was reversal of the order by the trial court allowing the filing of a petition under section 41, fifteen days after the expiration of thirty days from the entry of the decree. The principle announced is that a petition for costs and fees under section 41 should be filed at trial or no later than thirty days after the judgment. Such principle is supported by People ex rel. Madison Chemical Corp. v. Gurrie, 52 Ill App2d 360, 202 NE2d 123; Boss v. Coe Inv. Co., 45 Ill App2d 417, 195 NE2d 735, and Brooks v. Goins, 81 Ill App2d 12, 225 NE2d 707 at 712. In Brooks v. Goins the demand for costs and fees was first made in the Appellate Court An exception was recognized because the petitioners’ thirty days was cut short by the opposing party’s notice of appeal given five days after the judgment. In that case also the court said that once jurisdiction was obtained, the court could consider costs subsequently occurring.

While it is true that section 41 fixes no time other than “at trial,” it is clear that all other matters in reference to a judgment must be challenged in thirty days after its entry. It would seem appropriate to follow the thirty day rule in the matter of costs and fees to be assessed as a result of the trial.

Contrary to their position on the motion to dismiss plaintiff’s previous appeal, defendants now argue that In re Estate of Oelerich, 31 Ill App2d 457, 176 NE2d 549, made the first order on plaintiff to answer the petition an appealable order, and that therefore the dismissal of that appeal here was an affirmance of the order to answer. While it is true that the order denying the jurisdictional motion to dismiss in Oelerich was not a final disposition of the cause, at least in that case, undisputed allegations of nonresidence in the motion to dismiss made lack of jurisdiction to try the issue of incompeteney abundantly apparent to the extent that proceeding with the cause would have been a futile exercise of jurisdiction.

In the present case that one issue presented to this court on the first appeal was whether the order to answer a petition was an interlocutory order and we dismissed the appeal on that basis without reaching the merits. Therefore, we cannot accept the contention that the dismissal of the appeal constituted the law of the case.

It is further argued by defendants that since they did move the Master to tax costs including attorneys’ fees in its original motion to dismiss at the close of plaintiff’s case, the issue simply remained undisposed of. We do not agree. It was previously noted that defendants’ objections to the Master’s report contended that he should have found that there was no credible evidence to support certain of plaintiff’s claims, but no specific objection was made to his failure to recommend taxation of costs including attorneys’ fees. It does not appear that such taxation in issue was actually before the trial court at the time exceptions to the Master’s report were heard. Neither was it raised thereafter while the trial court retained jurisdiction of its decree.

We adhere to the rule of this Court in Eugene Matanky and Associates v. Onixt, 74 Ill App2d 53, 219 NE2d 865, that a section 41 petition must be filed at trial, or within thirty days of the entry of the judgment, unless the trial court’s jurisdiction is lost before the thirty days as in Brooks v. Goins, 81 Ill2d 12, 225 NE2d 707.

The judgment of the trial court dismissing the petition is affirmed.

Affirmed.

CRAVEN, P. J. and SMITH, J., concur.


author: JUSTICE STOUDER.

text:
    Mary Krembs, Plaintiff, v. County of Cook, a Body Politic and Corporate, Defendant, Village of Northbrook, a Municipal Corporation, Intervenor-Defendant-Appellant, City of Highland Park, a Municipal Corporation, Intervenor-Defendant-Appellant.
    Gen. Nos. 53,706, 53,707. (Consolidated Appeal.)
    First District.
    February 20, 1970.
    Thomas H. Compere, Corporation Counsel of City of Highland Park (Berle L. Schwartz, of counsel), and Frederic O. Floberg, of Chicago (William M. Freivogel, Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons, of counsel), for intervenor-defendant-appellants; John M. Daley, of Chicago, for appellee.
   Opinion by

JUSTICE STOUDER.

Not to be published in full.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Mary Alice Ellison, Defendant-Appellant.
    Gen. No. 50,975.
    First District, Second Division.
    February 24, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Andre Mandeville and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

Mary Alice Ellison, defendant, was charged with voluntary manslaughter in one indictment and with two counts of murder in a second indictment, all of which charges alleged that she struck with her hands and killed Darlene Ellison, her two and one-half-year-old daughter. The trial court directed a verdict of not guilty on one of the two murder counts. The case went to the jury on the remaining murder count and on the voluntary manslaughter indictment. The defendant was found not guilty of murder, but was found guilty of voluntary manslaughter, and was sentenced to a term of not less than seven nor more than fifteen years in the penitentiary.

The defendant appeals from that judgment and argues that she was not proved guilty beyond a reasonable doubt inasmuch as the State’s evidence was all circumstantial and “failed to exclude—the State’s medical testimony, that is—that her child, who was found floating in the bathtub, drowned.” Defendant also complains about the introduction at the trial of certain photographs of the deceased, the refusal of a defense instruction, and the argument of the State’s Attorney.

On December 24,1966, when the defendant and a companion, John Heard, returned from shopping they found that the defendant’s three children had smeared hair grease all over themselves and her apartment walls. The defendant then gave Darlene a whipping which, under the State’s theory, was the cause of the child’s death inasmuch as it resulted in a cerebral edema.

On Christmas morning, when the children got up at 4:30, Darlene would not play with her toys and refused to eat until about 5:30 that afternoon. After eating she defecated on the floor, and John Heard cleaned up the floor while the defendant put the child into a tub of water. Here there is some discrepancy as to whether the defendant then left the apartment or whether she was in the apartment dancing with Heard. At any rate, the child was left alone in the bathtub for about fifteen minutes, and when Heard finally went into the bathroom he found her floating in the water. He attempted to revive her and when his efforts were unsuccessful the Fire Department was called, but the firemen also were not able to revive the child. While waiting for the Fire Department, a neighbor had also tried to administer artificial respiration, without success. In the ambulance on the way to hospital, Darlene was given oxygen, but when she arrived she was pronounced dead.

The defendant was not charged with involuntary manslaughter, nor was there a charge that she was criminally negligent in leaving a two and one-half-year-old child alone in water up to her chest when the child had shown symptoms of illness. Rather, she was charged with two counts of murder and one count of voluntary manslaughter, based on her striking, the child. Consequently, the State had to prove beyond a reasonable doubt that the child died as a result of the whipping she received from her mother, the defendant, on December 24.

The two firemen who took Darlene to the hospital testified that they noticed bruises on her body when she was on the emergency table, and while it appears that some of the wounds were not new, there was testimony of fresh bruise marks, particularly on the forehead and a “raw area on the buttocks.”

James W. Henry, chief pathologist of the Coroner of Cook County, who had conducted an autopsy on the deceased on December 26, was called to the stand and admitted that some abrasions were old, but that “other abrasions were recent as were the bruises over the forehead.” He estimated that the recent abrasions were a day or two old, and he explained that the child’s skull showed “areas of dark red, apparently recent, hemorrhage” ; that while the skull showed no evidence of fracture the brain revealed abnormally increased weight due to increased fluid, resulting in flattening of the folds of the brain, a condition known as edema. The doctor made the following comments: “In my opinion, the increased weight of the brain is due to a collection of fluid or edema in the brain with swelling. . . . The cause of death in my opinion was cerebral edema, swelling of the brain which caused apparently or did cause in my opinion respiratory difficulty and also probable cardiac involvement. The correlation I made with this were the contusions about the head. In other words, I feel that the cerebral edema is related to the head injuries . . . .” The doctor felt that the relatively fresh contusions and abrasions were traumatic “probably from a blunt force. By traumatic, I mean that they were inflicted in the sense of what we call trauma by direct physical injury.”

The defense argues that the child’s death might have resulted from drowning, and in support introduced witnesses who said they had seen a white frothy substance exuding from the child’s mouth and nose, a symptom of drowning. Also introduced was the testimony of Victor Levine, a physician who had specialized in pathology and had formerly been associated with the Cook County Coroner’s office. He did not perform an autopsy on the deceased, but based on a four-page set of hypothetical factors, gave the opinion that the hypothetical person referred to had died of drowning. He further said that the injuries supposed to have been found on the hypothetical person would not have been sufficient to have caused death.

In contradiction to this testimony the State’s expert witness had testified that expulsion of a frothy fluid is often a terminal event not necessarily related to drowning; that the larynx and upper air passages of the child were clear of any appreciable fluid; both lungs floated in water and were of a normal weight; they revealed a minimal amount of frothy fluid, but no water, although there was air in the lungs; and there was no evidence of water in the esophagus and stomach. In the doctor’s opinion “the deceased, Veronica Darlene Ellison, did not die of drowning.”

The witness explained that there are two ways of drowning; the more common being that of submersion, with water being inhaled into the lungs and major air passages. He had already testified that this condition did not exist and that all indications were the death was not due to submersion drowning. The second manner, emersion drowning, occurs when a victim falls into water, particularly during cold weather, and sustains a sudden spasm of the voice box, preventing air or water from getting into the system. Death by such drowning is comparable to that of suffocation or strangulation. When asked if the presence of frothy substance was not characteristic of drowning, the doctor indicated it was not restricted to drowning cases, but could in fact be caused by placing an oxygen mask over the victim’s face in an attempt to resuscitate (as was done here). He stated that if the condition were related to a case it would be drowning by submersion, and that such was not indicated in the death in question.

A conflict of opinion is involved. The jury heard and saw the expert witnesses testify; their evidence, as well as all other evidence presented was submitted to the jury for its assessment. It was the function of the jury to weigh the evidence and reach a verdict, and we do not feel that the jury’s finding in this case was unreasonable. The State’s evidence, if believed, proved the defendant guilty beyond a reasonable doubt, and apparently the jury believed the State’s evidence.

The defendant admitted having struck the child on December 24, and Dr. Henry was of the opinion that the physical injuries sustained by the child led to her death the following day. This is not a situation which exists in some cases where even if the court had accepted the State’s evidence as true, the evidence failed to prove the defendant guilty beyond a reasonable doubt. See People v. Bathurst, 116 Ill App2d 419, 253 NE2d 912. In the case before us the jury was entitled to find the defendant guilty if it found the State’s evidence credible, and in spite of defendant’s attempt to discredit the testimony of the State’s pathologist, that testimony was sufficient to prove defendant’s guilt.

The defendant cites Sturm v. Employers’ Liability Assur. Corp., Ltd., 212 Ill App 354, in support of the proposition that it should be assumed in this case that the child drowned. At page 360 the court said: “Where a man, a few minutes after being seen apparently in good health is found under water, dead, and nothing more is known of the cause of death, the immediate conclusion arrived at is that he was drowned.” This statement is sound as a general principle, but it is not applicable to the facts of the present case. Here we are not concerned with an “immediate conclusion” but rather, with the ultimate conclusion arrived at after an autopsy by a qualified physician. Furthermore, the victim in the present case cannot be said to have been in good health immediately before being found in the water. The defendant admitted striking the child, and there was testimony that the following day the child was listless, refusing to play and not eating. This being the case, we could not presume the child was well and suffering from no physical problems when she was placed in the tub of water. The Sturm case is not applicable here.

In the case before us the jury heard evidence supporting the view that the child had died as a result of a criminal agency. The jury was entitled to believe that evidence and to conclude therefrom that the child died as a result of the blows administered by her mother. The fact that the defendant offers a defense does not mean that the jury is obligated to accept that defense and reject the State’s evidence. Bather, it is the jury’s function to weigh the evidence adduced by both sides, and in the present case the jury heard evidence that the child had recent wounds. There was the mother’s admission that she had struck the child the night before she died; and although at trial she said she had struck her three or four times, in earlier statements to the police she said she had no idea how many times she had struck her because she was “mad” at the time. In one of the statements to the police she said, “I just whipped her.” The jury also heard the pathologist give as his opinion, after he performed the autopsy, that the infant died as a result of cerebral edema caused by a traumatic blunt force. Under such evidence the jury was entitled to find as it did.

The defense also argues that the court erred in refusing the following instruction which defense offered:

The court instructs the jury that if the testimony in this case be such that two conclusions can be reasonably drawn from it, the one favoring the innocence of the defendant, MARY ALICE ELLISON, and the other tending to establish her guilt, then it is your duty under the law to adopt the conclusion favoring the innocence of the defendant, MARY ALICE ELLISON, and find her not guilty.

The defendant reasons that if the baby had really drowned, the jury should have acquitted the defendant, and the refused instruction was proper; that when the court refused the instruction it committed reversible error. The State in reply says the defense has waived this point since the post-trial motion for a new trial failed to point out the complained-of instruction, but simply states, “The court erred in the matter of refusing instructions.” Without affording the trial court anything further with regard to the objection it is difficult or impossible for the trial court to know the true ground of the defendant’s complaint.

In any case, the defendant cannot be helped since the trial court gave other instructions which adequately covered the points raised in defendant’s refused instruction. In defendant’s instruction No. 7 the court explained that the presumption of innocence remains with the defendant throughout the trial and until such presumption is overcome by evidence proving defendant’s guilt beyond a reasonable doubt.

The court also instructed the jurors: “The State is required to prove beyond all reasonable doubt that the defendant is guilty as charged before you can find her guilty.” He further explained the instruction as follows: “If, . . . the State has established a probability, though a strong one, that the charge is more likely to be true than untrue as to the defendant, and no more, or if the evidence establishes a mere suspicion of guilt, however great, and no more, as to the defendant, or if you have a reasonable doubt from the whole of the evidence as to the guilt of the defendant, it is your duty to find the defendant not guilty.”

Defendant’s instruction No. 1, also given to the jury, was to the effect that it was the State’s burden to prove the defendant guilty on “every material allegation of the indictment, and unless that has been done, the jury should find the defendant not guilty.” Thus, the court clearly informed the jury that it was the State’s burden to prove beyond a reasonable doubt every element of its case, and if it failed to do so, the jury should return a verdict of not guilty.

In People v. Lockett, 85 Ill App2d 410, 229 NE2d 386, where the defendant had complained that the trial judge had refused one of its instructions, the reviewing court found the subject adequately covered by another instruction, and said at page 415:

“This instruction is broader in scope than the refused one but it sufficiently covers the principles of law contained in that instruction. A court is under no obligation to give more than one instruction on the same subject matter (People v. Young, 398 Ill 117, 75 NE2d 349 (1947)) and if an instruction is given which adequately covers the same subject as the one refused, it is not error for the court to refuse the latter. People v. Moretti, 6 Ill2d 494, 129 NE2d 709 (1955).”

The defendant also cites People v. Lefler, 38 Ill2d 216, 230 NE2d 827, in support of the proposition that she was entitled to the refused instruction. In that case the defendant had been found guilty of involuntary manslaughter of his child. In a statement the defendant had admitted squeezing his baby to keep her from crying, but said that he had not done so intentionally. There was no dispute as to the cause of death but the case revolved around the issues of defendant’s intent at the time of the incident. The opposing theories of innocence or guilt were developed from the same set of facts, and the court said that under those circumstances the defendant was entitled to an instruction on his theory of the case. In the case before us, however, there is a dispute over the cause of death, and no agreed-to set of facts. The State sets out to prove that the child’s death was a result of the mother’s beating, while the defendant attempts to prove the child died as a result of drowning. In Lefler the court was addressing itself to the instructions on opposing theories when such theories “arise out of the same facts,” and is not controlling here.

The defendant complains that she was unfairly prejudiced when during the testimony of Dr. Henry the State introduced, over defendant’s objection, four photographs of the child. Defendant argues that the photographs would necessarily prejudice the jury since they show the child naked and pitiful. The rule regarding admissibility of photographs of deceased persons is stated in People v. Jackson, 9 Ill2d 484, 490, 138 NE2d 528:

“Whether the photograph of a deceased is properly admissible depends upon whether it has probative value, such as aiding a jury in the better understanding of medical testimony or aiding them in determining the manner in which the wound was inflicted. [Citing cases.] Mindful of the prejudicial emotion that might be aroused by the introduction of a victim’s photograph, the courts have, on the whole, been strict in their requirement that a proper purpose be shown for the introduction of such an exhibit.”

In Jackson the photographs showed the deceased after an autopsy had been performed, while in the present case the photographs were taken of the victim prior to the autopsy. In Jackson the photograph was introduced when the State reopened its case for the sole purpose of introducing the pictures, after the defendant had rested and after it was already clear that the defendant was not going to challenge the fact that he had stabbed the victim. The State then argued that the picture was admissible as an admission by defendant since the defendant had made a notation on it. The court concluded that the photograph had been offered solely to arouse the emotions of the jury “so that they would administer a more severe penalty.” (Page 491.)

By contrast, in the instant case, the pictures were admitted during the State’s case-in-chief and during the examination of the principal medical expert. They were proper aids in helping the jury comprehend the doctor’s testimony, and they were probative as to the issue of the beating of the child. The rawness of the child’s buttocks and the wound on the forehead were testified to and the jury was entitled to see for itself the nature and severity of the wounds. The fact that the mother admitted striking the child does not render the showing of the photographs irrelevant for the jury still must determine whether the child had been beaten seriously enough to cause her death. The photographs were probative as to the amount of force which had been used.

Finally, the defendant asserts that the prosecutor conducted an unfair cross-examination of John Heard, the defendant’s companion, which was intended to harass, embarrass and annoy the witness and prejudice the defendant. The defendant argues that the prosecutor abused his privilege in his closing argument by appealing to the jury to consider the defendant’s general misconduct and in effect find her guilty because she was a bad woman rather than because she was guilty of the particular crime charged. She argues that the prosecutor misstated the evidence in his final argument when he asked Heard if he had had sexual intercourse with the defendant. Heard said that he had, and further stated that he was the father of a child born to the defendant after Darlene’s death. The defense argues that this type of cross-examination has resulted in reversals and cites People v. Ahrling, 279 Ill 70, 116 NE 764, in support of the contention that it is erroneous to question a witness regarding acts of moral turpitude which have no bearing on the question of guilt or innocence. In the Ahrling case, however, the witness who testified regarding the defendant’s moral turpitude was not himself being impeached by the State, and his testimony was used solely to display the moral degredation of the defendant.

In the instant case, however, the testimony was given by the very person with whom the defendant had participated in the acts of moral turpitude, and the State urges that such testimony tended to impeach Heard’s testimony since the jury was able to see the witness had good reason for lying on behalf of the defendant. Heard said he was not married but had had sexual intercourse with the defendant and was the father of one of her children. By bringing out these facts the State was able to show the extent and nature of the witness’ interest and bias in favor of the defendant.

In People v. Smith, 74 Ill App2d 458, 221 NE2d 68, the court found that part of the cross-examination of a defense witness was prejudicial. The witness had been questioned about the defendant’s probable relationship with a certain woman. Again, in that case the disclosed relationship was not between the particular witness and the defendant, but rather was between the defendant and some third party. In the case before us it was the witness himself who had the relationship with the defendant, and thus the testimony had an independent value other than that of merely blackening the character of the defendant. The testimony was relevant in that it showed that the witness could have reason to try to protect the defendant, even to the point of lying. We do not say that such an action was commendable, even under the circumstances; however, considering the facts, we do not feel that the State’s cross-examination was so prejudicial to the defendant as to require a new trial. While this type of cross-examination should be carefully controlled, in this case there was a legitimate purpose to be served, and therefore the objection to the cross-examination was properly overruled. People v. McGovern, 307 Ill 373, 377,138 NE 632.

In his closing argument the prosecutor said that the doctor had testified that the edema was the direct result of the blow to the forehead. In the record, however, it appears that the doctor testified that he correlated the edema to the contusions which he believed to have been traumatic and the result of a blunt force. We fail to see any merit in the argument of the defendant that it was “gross misstatement” in summarizing the doctor’s testimony.

The defendant argues that in several instances the prosecutor made unfair comments, but there is no purpose in discussing each of these. Regardless of any deviations found in the argument they do not constitute reversible error, and we must remember that the same jury had heard the evidence. After the hearing in aggravation and mitigation the trial judge expressed the view that he had believed the State’s evidence when he said, “The evidence shows that this woman severely beat this little two and a half year old, defenseless youngster, thereby causing its death. . . . Her treatment of this youngster would indicate to the Court that it would be to the best interest of the children if they were raised by someone who is more responsible, more concerned for their welfare, and who doesn’t allow savage temper to injure them as severely as was done in this case. The injuries were so severe that it led to death.”

We agree that the evidence sustains the jury’s verdict and the judgment of the court that the defendant was guilty beyond a reasonable doubt.

The judgment of the Circuit Court is affirmed.

Affirmed.

LYONS and BURKE, JJ., concur.


author: JUSTICE BURKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert E. Davidson and James Bryant (Impleaded), Defendants-Appellants.
    Gen. Nos. 52,737, 52,738.
    First District, Second Division.
    February 24, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellants; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joseph Romano, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Nevin William Thompson, Defendant-Appellant.
    Gen. No. 52,048.
    First District, Fourth Division.
    February 25, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Fred Shandling and Theodore A. Gottfried, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, and Kenneth Gillis, Special Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant was convicted after a bench trial of the offense of rape. Judgment was entered and he was sentenced to a term of three to five years. Defendant raises two points on appeal: (1) he was not proven guilty beyond a reasonable doubt and (2) his pretrial confrontation was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.

Testimony of Ruby Grant, complaining witness:

She is married and lives at 7947 South Vernon. On January 27, 1965, she was employed as a supervisor at the Chicago Tile Company and worked from 3:00 p. m. to 11:00 p. ml After work she took a bus to 80th and South Park and walked east to Vernon. There are arc lights on each side of the street at 80th and Vernon.

As she began walking north on Vernon someone ran up behind her and grabbed her. She looked around to see who it was. The man told her to walk in front of him. She was led into a corner of the hallway in her own building. She was told to bend over, and the man pulled up her coat and dress, pulled down her undergarments and proceeded to rape her.

After the man left she immediately ran upstairs and told her husband she had been raped and he called the police. She was taken to St. George’s Hospital and examined.

Her eyes were covered during the attack. When she was in the hall she kept trying to look around and the man told her, “Lady, if you keep trying to look at me, I’m going to have to kill you.” During the act the man asked her if he was hurting her. When he finished he said, “Come on, let’s go around here.” She started to cry and told him, “You better try to get away from here. If I’m not upstairs by 12:00 o’clock, my husband will come down looking for me.” He stood there about a minute and then ran out the door. She never screamed.

On February 12, 1965, she saw the defendant at the Burnside Police Station. He was in a little room with two police officers.

On cross-examination she testified that she lives in a residential area. On 80th Street there is a laundromat, a grocery store and a restaurant open until 2:00 a. m. As she approached her home someone grabbed her from behind with both hands around her waist. She was very scared but did not scream. They walked into her hallway and over to the south corner. When she turned around on the street she looked up at the man and saw him for about ten seconds. She was not sure if she saw his eyes. He was holding her by the waist as they walked. She was blindfolded by her assailant in the hallway and prior to that he always walked behind her. Once in the corner of the hall she bent forward and was raped from the rear. Her assailant was standing in back of her during the entire attack. When she took off the blindfold the man had gone. There were no marks or scars on his face. She did not know if he was clean shaven.

The man was dressed in a brown or beige, knee-length overcoat. He was five foot nine or ten and weighed about 165 pounds. He had on a gray, “stingy brim hat.” He had a long nose and regular chin.

On February 12, 1965, a police officer called her at home and asked her to come to the police station. She went to the police station and into a room where the defendant was seated handcuffed to a chair. There were other police officers in the room. She also saw the defendant at the 11th Street Station when he was called out as being the defendant in this case and during the trial.

The police took her panties and the blindfold. The blindfold was a brown and white head scarf. She did not see the scarf again.

It was stipulated between the parties that the vaginal smears taken by the doctor at St. George’s Hospital indicated the presence of male spermatozoa. The panties taken from the complaining witness' also contained male spermatozoa. The vaginal area indicated no presence of bruises, abrasions or contusions.

Testimony of Ernest Grissett, called by the defense:

He is a detective with the Chicago Police Department. He has known the defendant for approximately eight years. He saw the defendant practically every day or evening during the winter of 1965. The defendant had domestic problems and he became very interested in the defendant. The defendant’s reputation for truth and honesty was good. The defendant helped him identify people in the neighborhood.

Testimony of Yvonne Henry, called by the defense:

She is married and currently lives at 7920 South Wabash. She is the defendant’s sister. The defendant has been living with her and her family since late 1964. On January 27, 1965, she lived at 1040 East 80th Street. The defendant only owned two coats, a waist-length leather jacket and a brown, three-quarter length suede coat with white fur around the collar and a white fur lining. He never owned an overcoat. He only wore a black tam hat and a beanie cap. On weekdays he was usually home by 8:30 p. m. to do the cooking.

Testimony of Nevin William Thompson, defendant, in his own behalf:

He is eighteen years old. On January 27, 1965, he was living with his sister, Yvonne Henry. He never saw the complaining witness, nor did he ever attack her. He is about six foot one in height.

Opinion

Defendant contends that he was not proven guilty beyond a reasonable doubt. In People v. Betts, 101 Ill App2d 322, 326, 243 NE2d 282, the court stated:

We recognize that positive identification by one witness who has sufficient opportunity for observation may be enough to support a conviction. People v. Burts, 13 Ill2d 36, 147 NE2d 281 (1958). However, “a conviction cannot be deemed to be sustained by evidence beyond a reasonable doubt if the identification of the accused was vague, doubtful, and uncertain. (Citations omitted.) And, where, as here, the identifying witnesses have never before observed the accused, the attendant circumstances, including the opportunity for definite identification, must be carefully weighed and considered.” People v. Cullotta, 32 Ill2d 502, 504-505, 207 NE2d 444 (1965).

In the instant case during direct examination the complaining witness testified that as she was walking home someone ran up behind her, grabbed her by the waist and then she looked around to see who it was. She then pointed out the defendant as this man. She further testified that in the hallway her eyes were covered but she kept trying to look around and the man told her that if she kept trying to look around he would kill her. She did not describe her assailant’s height, weight or dress during direct examination.

On cross-examination she testified that her assailant grabbed her from behind and remained behind her throughout the attack. She was blindfolded by her assailant in the hall and the blindfold remained on during the entire encounter. She did not remove the blindfold until after the assailant had fled. When asked how long she looked at her assailant while in the street she stated that she was frightened and scared; that she turned around and looked at him “for about ten seconds”; that she is not sure if she saw his eyes and that she doesn’t know what color his eyes were.

From the testimony of the complaining witness we believe that the circumstances surrounding the attack did not afford her a favorable opportunity for a clear and positive identification of the defendant as her assailant. Since the complaining witness lacked a sufficient opportunity to observe her assailant, and the State failed to introduce any other evidence connecting the defendant with the crime, we find that he was not proven guilty beyond a reasonable doubt.

As we have concluded that the evidence produced by the State did not support defendant’s conviction of rape, it is unnecessary to discuss defendant’s other contention.

The judgment is reversed.

Reversed.

ENGLISH and LEIGHTON, JJ., concur.


author: MR. JUSTICE LEIGHTON

text:
    Lois A. Morris, Plaintiff-Appellant, v. Margaret Anderson, Defendant-Appellee.
    Gen. No. 52,740.
    First District, Fourth Division.
    February 25, 1970.
    Rappaport, Clorfene & Rappaport, of Chicago (Hamilton Clorfene, of counsel), for appellant.
    Thomas C. Velasco, of Glenview, for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

This is an appeal from a summary judgment. The issue is whether grant of the summary judgment to defendant was proper.

Plaintiff is a licensed real estate broker. Her amended complaint alleged that on August 18, 1962, she told defendant that she could find a purchaser for defendant’s property at 6011 North Winthrop, Chicago, and one adjoining it, to permit construction of an apartment building on the two properties; that defendant agreed to sell for $39,500 and pay plaintiff a broker’s commission of 6% on the selling price; that on July 30, 1965, plaintiff sent a real estate contract to defendant with an offer for the sum of $37,000, but defendant was indecisive about accepting or rejecting the offer; that on February 21, 1966, plaintiff obtained an offer of $50,000 for defendant’s property, and an offer of $50,000 for the adjoining property which the owner accepted, the offers being contingent on the ability of the purchaser to buy both properties; that defendant breached her agreement to sell, after plaintiff procured a purchaser who was ready, willing and able to pay the sum of $50,000; that as a result of defendant’s breach, plaintiff lost brokerage commissions on both pieces of property, to her damage in the sum of $6,000.

Defendant answered. She admitted that plaintiff was a licensed real estate broker. She denied every other material allegation. In the alternative, defendant pied that even if she had agreed to sell her property as alleged, there was not performance sufficient to entitle plaintiff to a commission. With regard to the offer dated July 30, 1965, for the sum of $37,000, defendant pied that if the offer was made, it was not sufficient to entitle plaintiff to a commission under the terms of the alleged oral agreement. Concerning the offer of February 21, 1966, for $50,000, defendant pied that this offer was not made in accordance with the terms of the alleged agreement; therefore, plaintiff was not entitled to recover a commission from defendant. To the answer, defendant attached as an exhibit a document which she said, on information and belief, was the offer of February 21,1966.

Defendant filed a motion for summary judgment containing three paragraphs. The first, by way of introduction said “[T]hat no triable issue of fact is presented from the pleadings . . . .” The second repeated the substance of the answer and stated that the $37,000 offer described in plaintiff’s amended complaint was not within the terms of the alleged oral agreement. The third paragraph stated that the offer of $50,000 was not a bona fide offer within the terms of the oral agreement alleged by plaintiff. Defendant stated that the offer contained terms and conditions which were completely outside the alleged oral agreement. She referred to the document appended to her answer. Defendant’s affidavit recited that on or about February 18, 1966, plaintiff submitted to her the real estate contract which was attached to the answer; but at no time “[h]as affiant had any communication with Alba Co., (the proposed buyer) or any agent or officer thereof, with regard to this document or any matter whatever.”

Plaintiff filed a counteraffidavit in which she said the offer of $50,000 was bona fide; that the defense interposed in the motion for summary judgment was an afterthought of defendant after she changed her mind and unconditionally refused to sell her property. Plaintiff alleged that after submission of the offers described in the amended complaint, defendant refused to sell her property “[a]nd would give as her reason that it was private business . . . .” Plaintiff alleged that defendant made no objection to any provision of the offers; that the contentions concerning the terms and conditions of the offers are barred because under Illinois law defendant’s conduct estopped her from raising these contentions as defenses.

The court, on the motion for summary judgment, entered an order which found:

1. That the purported performance alleged in the Amended Complaint of LOIS A. MORRIS, even if the agreement and such purported performance be proved, is insufficient as a matter of law, to entitle plaintiff to recover of defendant the relief sought;

2. That the motion for summary judgment should be sustained; . . . .

One of the issues formed by the complaint and answer was whether the parties had entered into any contract. This was an issue of fact. Rowland v. Records, 43 Ill App 198; International Glass Co. v. Krouse, 282 F 206 (3rd Cir 1922). If, on resolution of this factual issue it is proved the parties did enter into a contract, whether there was performance would depend on the terms of the contract proved. When a contract is in dispute, and its terms are at issue, questions concerning performance are questions of fact. Ordinarily, the determination of what constitutes substantial performance of a contract is an issue of fact. Sampson v. Marra, 343 Ill App 245, 98 NE2d 523.

Defendant’s motion for summary judgment did not change what were issues of fact to issues of law. The allegations in defendant’s motion that the $37,000 offer was not within the terms of the agreement only emphasized the factual dispute between the parties. Defendant’s allegation that the $50,000 offer was not bona fide further intensified the factual dispute. Bona fide means good faith. Whether a person acted in good faith in a certain transaction is ordinarily a question of fact. See, Nofree v. Leonard, 327 Ill App 143, at 152, 63 NE2d 653; and cf. Hoyt v. Duluth & Iron Range R. Co., 103 Minn 396,115 NW 263, at 264 (1908).

The allegation in defendant’s affidavit that she had no communication from the proposed purchaser was refuted by the exhibit attached to defendant’s answer. The fact that defendant had a contract purportedly signed by a proposed buyer was proof that she had received a communication concerning that potential buyer’s interest in the transaction. Whether there was a proposed buyer, whether the contract was signed by the authorized person, and many others, were questions of fact. Thus, defendant’s affidavit which purported to support her motion for summary judgment raised additional factual questions.

The purpose of a summary judgment proceeding is to determine whether issues of fact exist between the parties. Simaitis v. Thrash, 25 Ill App2d 340, 166 NE2d 306. If the proceeding discloses issues of fact, the motion for summary judgment must be denied. Gribben v. Interstate Motor Freight System Co., 18 Ill App2d 96,151 NE2d 443.

The record before us discloses issues of fact. Therefore, the trial court erred when it granted defendant’s motion for summary judgment. Ferro v. Daros, 333 Ill App 386, 77 NE2d 566. The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

STAMOS, P. J. and DRUCKER, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Emile Washington, Defendant-Appellant.
    Gen. No. 52,986.
    First District, Fourth Division.
    February 25, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.

      Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James R Kavanaugh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

Defendant was charged with rape. A jury convicted him; the court imposed a sentence of two to five years. He appeals and presents several grounds for reversal. The one dispositive of this appeal is defendant’s contention that he was not proven guilty beyond a reasonable doubt.

On Sunday, January 22, 1967, at about 9:20 p. m., the complaining witness, a woman of mature years, was returning home from a visit with friends at 1900 West Washington Boulevard, Chicago. She was walking south on Oakley Boulevard toward West Madison Street when a group of six boys seized her and pulled her into a gangway at 11 North Oakley. The boys hit the woman about the face and four of them had intercourse with her. The assault attracted the attention of persons nearby who called the police. Two squad cars responded. When police officers flashed lights into the alley adjoining 11 North Oakley, they heard noises of youths running and someone yell, “The police!” Five or six youths ran south toward Madison Street. Officer Coconato flashed a light into a gangway and found complainant. She told him she had been raped. A short time later Coconato joined another officer in- the chase. A youth was seen caught on a cyclone fence. It was the defendant. He freed himself; and after a chase, defendant was arrested.

At defendant’s trial the woman and four police officers testified. She described the assault and rape; the four police officers described their response to the call, the flight of the youths and the apprehension of defendant, the only one of the boys caught. Defendant, the only defense witness, testified that on the evening in question he visited the home of his cousin, Henry Summers. They went to a hot dog stand at Oakley and Madison. The cousin left defendant there. Defendant said he was to meet his cousin at the corner of Madison and Oakley. Defendant went to the corner but did not see his cousin. He walked north and when he reached 11 North Oakley he heard a voice calling his name from a gangway. He walked toward the voice and met his cousin who told him that a “Jimmie Bell had some lady down.” Although the cousin did not tell defendant what was going on, he could imagine. Defendant said he stayed there about five or ten minutes trying to persuade his cousin to go home with him. The police came and everybody ran. He became scared and ran, too. He saw the other youths hiking over the fence; he panicked, tried to climb but got caught. He then got free, ran and was apprehended by the police. Defendant denied ever seeing complainant, denied having relations with her or ever having touched her. He said he did not see anyone have sexual relations with her.

Defendant’s contention that he was not proven guilty beyond a reasonable doubt is based mainly on the complainant’s testimony. She was asked about the lighting conditions in the area where she was attacked. She said that there “[w]as only one dim light.” She was asked if she could see the faces of the youths who assaulted her. She said she could not. When asked if she could describe the facial features of the boys, she said, “ [Y] es. There was—all was about, I say all young boys, the tone of their voices was no more about maybe 15 or 16 years old.” As the boys struck her about the face, complainant said she threw her hands up to keep them from blacking her eyes. At the police station to which she was taken later, the defendant was the only youth shown to her. When she was asked whether she saw at the police station “[a]ny of those boys,” she said: “ [I] told the officer here this one here sitting here looked like one of them that had pulled me in the gangway.” She was then asked whether she was referring to the defendant who was then in court. Her answer was, “[Y]es, he looked like one of them.”

When cross-examined, complainant was asked again about the defendant. She said: “[W]ell, he looked like one of them that pulled me in the thing. That is all that I can say, that he looked like him.” When she was asked concerning the clothing the defendant wore, she said she did not know. She was asked about the height of the other boys, and she said, “ [I] don’t know. Wasn’t too tall.” When she was asked about the four boys who had sex relations with her that night, her answer was “[I] couldn’t tell you who had me. I don’t know who had me.” She said, however, she was positive that defendant was not one of the four boys. She was then asked, “ [D] o you know whether or not this defendant did anything to you? Did he strike you or —” Her answer: “[I] don’t know, but I had panic. I got excited, I panicked. All I know I was getting licks upside my face. Now, who hit who and who did what, I don’t know.”

The identification testimony has to be weighed against all of the facts and circumstances of the case, together with defendant’s denial, his persistence since his arrest in that denial, and the explanation he gave concerning his presence at the place where the rape occurred. The testimony of a single witness, if it is positive and the witness is credible, is sufficient for a conviction even though there be contradictory testimony by the accused. People v. Tribbett, 41 Ill2d 267, 242 NE2d 249; People v. Howard, 112 Ill App2d 167, 251 NE2d 369.

Identification of a defendant need not be positive. The weight to be given identification testimony is a question for the judge or jury to determine in connection with other circumstances of the case. People v. Oswald, 26 Ill2d 567, 187 NE2d 685. However, when identification of a defendant is not positive, there must be some fact or circumstance which aids the judge or jury in determining the weight to be given the identification testimony.

In the case before us complainant was uncertain in her identification of the defendant. It is almost an axiom that identification of a person by one who has never seen him before is an opinion or conclusion of the identifying person. The attendant circumstances, together with the probability or improbability of affording an opportunity for a definite identification, are important in weighing the evidence of identification of one stranger by another. People v. Peck, 358 Ill 642, 193 NE 609.

In People v. Fiorita, 339 Ill 78, 170 NE 690, witnesses said of the defendant: “[a]t least it was somebody who looked like him. . . .” “[F] iorita looked like one of the men; . . .” “[s]he believed one of the four men looked like one of the defendants. . . .” The Supreme Court said, 339 Ill 78 at 85:

It is the well established law of this State that the burden rests upon the People not only to prove the commission of the crime beyond a reasonable doubt but also to prove by the same measure of evidence that it was committed by the person or persons accused, and a conviction cannot be said to be sustained by the evidence beyond a reasonable doubt where the testimony of the witness shows that their identification of the defendant was doubtful, vague and uncertain.

The State concedes as much when it admits in its brief that complainant “[d]id not know whether the defendant, Emile Washington, had done anything to her in the gangway because she had panicked and had gotten excited and was getting hit in the face in the darkness. . . .” It argues, however, that defendant’s admitted presence at the scene of the crime and his flight from the police were sufficient to prove his complicity in the crime of rape.

This argument overlooks the State’s theory of prosecution. There was no claim that defendant committed the rape. The State’s case was predicated on the notion that defendant was accountable for the conduct of the other youths who raped the complaining witness.

Ill Rev Stats 1965, c 38, §§ 5-1, 5-2 (c).

A person is responsible for conduct which is an element of an offense if the conduct is either that of the person himself, or that of another and he is legally accountable for such conduct as provided in sections 5-2 or both.
A person is legally accountable for the conduct of another when either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. . . .

To impose accountability on defendant the State had to prove beyond a reasonable doubt that he facilitated the commission of rape by the other boys. People v. Brumbeloe, 97 Ill App2d 370, 240 NE2d 150. The evidence had to prove beyond a reasonable doubt that defendant committed an act with intent that an offense be committed on the complainant. The State’s theory required proof that defendant furthered a common plan; that between him and the other boys was a concert of action. People v. Valentine, 60 Ill App2d 339, 208 NE2d 595. Mere presence of the defendant at the scene of the crime was not culpable. People v. Barnes, 311 Ill 559, 143 NE 445. Even his consent, or knowledge that a crime was being committed, though involving moral turpitude, did not constitute aiding or abetting. People v. Dalton, 355 Ill 312, 189 NE 265; People v. Ramirez, 93 Ill App2d 404, 236 NE2d 284.

Defendant admitted that when the police drove into the alley near 11 North Oakley he fled. The State argues that defendant’s flight demonstrated his complicity in the crime of rape. This argument overemphasizes the element of flight. It is settled that defendant’s flight may be considered with other evidence as tending to prove guilt. People v. Rossini, 25 Ill2d 617, 621, 185 NE2d 831; People v. Stewart, 74 Ill App2d 407, 416, 221 NE2d 80. However, all of the evidence, including the circumstances of flight, must prove defendant guilty of the crime charged.

We conclude that defendant’s conviction rests on a doubtful, vague and uncertain identification. The State’s theory of defendant’s accountability for the conduct of the youths who attacked complainant was not supported by evidence as required by law. The evidence in this record does not prove defendant guilty beyond a reasonable doubt. Therefore, the judgment is reversed.

Judgment reversed.

ENGLISH and DRUCKER, JJ., concur.


author: MR. PRESIDING JUSTICE STAMOS

text:
    Eugene V. Swanson, Plaintiff-Appellant, v. Arthur A. Swanson, Defendant-Appellee.
    Gen. No. 53,115.
    First District, Fourth Division.
    February 25, 1970.
    Asher, Greenfield, Gubbins and Segall, of Chicago (Irving D. Levin, of counsel), for appellant.
    Robert J. O’Rourke and Donald A. Carr, of Chicago, for appellee.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff, Eugene Swanson, brought an action for damages against defendant, Arthur Swanson, for the intentional infliction of mental distress. Defendant’s motion to strike the complaint for failure to state a cause of action was denied. At the close of plaintiff’s evidence, defendant moved for a directed verdict which was granted. Plaintiff appeals.

Plaintiff and defendant are brothers. Their mother, Emma Swanson, had resided with defendant for approximately six months during the early part of 1950, but had then moved to plaintiff’s home pursuant to an agreement whereby each of the two brothers would care for their mother for six month intervals. She, however, continued to reside with plaintiff until February 11, 1961, when she was taken by plaintiff to defendant’s residence. Plaintiff testified that he told defendant to care for the mother over the weekend while he and his wife left town to visit his mother-in-law. However, defendant as an adverse witness under Ill Rev Stats, c 110, § 60 (1967) testified that plaintiff stated, “That’s your mother. We don’t want to see her or you anymore.”

On February 13, 1961, defendant placed his mother in the Sutton Nursing Home, Belvidere, Illinois, on the advice of Dr. Nelson who had allegedly examined her six months prior to this occurrence. Defendant gave the Home his telephone number to be used in case of emergency, but failed to give plaintiff’s number.

Plaintiff testified that after returning from the weekend trip, he attempted to take his mother back home, but defendant refused to tell him of her location. Plaintiff then traced his mother to the Home by making numerous phone calls. When he visited her at the Home, he failed to leave his telephone number.

On August 17, 1961, the mother died and the Home promptly notified defendant who made arrangements for the funeral on August 19, 1961. Defendant testified that he deliberately failed to inform plaintiff of the mother’s death, and further, deliberately failed to cause an obituary to be published. Plaintiff learned of his mother’s death five days after the funeral and allegedly, as a result of being unable to attend, suffered severe emotional distress. Plaintiff testified:

“I was shocked to hear that she had passed away. I was very nervous about it and had many sleepless nights. Kept thinking about it all the time. Yet to this day I think I am going to have nightmares of this situation.”

OPINION

The issue presented for review is whether the trial court properly granted defendant a directed verdict. The applicable standard is enunciated in Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504:

“. . . verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

Since plaintiff seeks recovery for the intentional infliction of mental distress, the Pedrick test, supra, must be applied to the evidence in conformity with the precepts of Knierim v. Izzo, 22 Ill2d 73, 174 NE 157 (1961).

In Knierim, supra, the plaintiff sought recovery for the intentional infliction of severe mental distress allegedly caused by defendant’s threats to kill her husband and the subsequent fulfillment of those threats. The court held that the complaint stated a cause of action and in so doing adopted this tort in Illinois for the first time. The cause of action, as enunciated therein, allows compensatory damages for the disturbance of mental equanimity where one, intending to cause “severe emotional distress” in another, acts in a manner “calculated to cause [it] in a person of ordinary sensibilities” and, in so doing, actually precipitates it. In discussing what constitutes “severe emotional distress” the court stated at page 85:

“It has not been suggested that every emotional upset should constitute the base of an action. Indiscriminate allowance of actions for mental anguish would encourage neurotic overreactions to trivial hurts, and the law should aim to toughen the psyche of the citizen rather than pamper it. But a line can be drawn between the slight hurts which are the price of a complex society and the severe mental disturbances inflicted by intentional action wholly lacking in social utility.
“The stronger emotions when sufficiently aroused do produce symptoms that are visible to the professional eye. . . .”

The only subsequent Illinois case construing conduct in light of the above tests was March v. Cacioppo, 37 Ill App2d 235, 185 NE2d 397 (1962). The plaintiff therein alleged that the defendants on the basis of a void or exorbitant judgment intentionally garnished plaintiff’s bank account for a period of time including the Christmas season thereby causing severe emotional distress. In affirming a dismissal of the action, the court stated at page 243:

“We do not believe that the distress which would be suffered by a person of ordinary sensitiveness from the facts related would be the severe mental disturbance contemplated by the Knierim decision.”

In the instant case plaintiff testified that he was nervous and had many sleepless nights and he thought he was going to have nightmares about it. He did not receive nor seek medical aid for his condition. These circumstances do not show, as required by Knierim, a “severe emotional disturbance.”

Upon this record, we find that the trial court properly directed a verdict and we therefore affirm the judgment.

Judgment affirmed.

DRUCKER and LEIGHTON, JJ., concur.