text:
    James L. Jirik, Plaintiff-Appellee, v. General Mills, Inc., Defendant-Appellant.
    Gen. No. 52,274.
    First District, Second Division.
    June 17, 1969.

      King, Robin, Gale & Pillinger, of Chicago (Willard L. King, J. William Braithwaite, and Leroy J. Tornquist, of counsel), for appellant.
    Hanley & Land, of Lansing (James E. Land, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Plaintiff, James Jirik, brought suit against General Mills, Inc. and Screw Conveyor Corporation for property damages to his truck and trailer. Trial was without a jury. At the close of plaintiff’s case, the court granted defendant Screw Conveyor’s motion for a directed verdict. The propriety of that action is not questioned in this appeal. At the close of all the evidence, the court entered judgment against General Mills for $7,320.82. General Mills appeals from that judgment contending: (1) there was no evidence of specific negligence on the part of defendant ; (2) the doctrine of res ipsa loquitur is inapplicable in the instant case; (3) the trial court erred in allowing plaintiff to amend his complaint by adding a count based upon res ipsa loquitur at the conclusion of plaintiff’s case; and (4) defendant met his burden under res ipsa by showing that the damages were caused by plaintiff’s negligence. It is not claimed that the damages awarded are excessive.

On January 15, 1964, a semi-tractor truck and trailer unit owned by plaintiff, was damaged extensively at the General Mills Rialto grain elevator. Before the accident, the unit, which he had purchased new in 1960, was in excellent condition. It had travelled 275,000 miles. On January 7, 1964, plaintiff left the truck terminal in Hammond, Indiana to transport a load of steel to Wichita, Kansas. Prior to departure, the unit was inspected and found to be in satisfactory condition by an Interstate Commerce Commission inspector. On his return trip from Kansas, plaintiff was hauling defendant’s grain to its elevator. During the trip he checked the vehicle five times. He was a mechanic, had occasion to repair trucks, and did the maintenance work on his own unit. He was familiar with the pins or bolts which secure the rear springs of the truck. Plaintiff testified that these bolts were all present. He arrived at defendant’s elevator about 11:30 a. m. with a passenger, Donald Butler. About 1:00 p. m. he was instructed to back his truck onto defendant’s lift which had been manufactured and installed by the Screw Conveyor Corporation. He then got out of the truck as per regulations.

The lift, operated by a General Mills employee, is essentially a movable platform. After the truck is backed onto the platform, wheel stops are placed behind the rear wheels. The lift then raises the front of the truck to an angle of 30 to 35 degrees. By force of gravity the grain is then emptied from the rear of the trailer into a grain bin.

Plaintiff’s truck had been unloaded in such manner about 75 times. However plaintiff and his passenger testified that the procedure employed this time was different from what they had observed previously. Ordinarily, the truck was raised in stages so as to allow a gradual flow of the grain. But on this occasion the truck was elevated in one continuous movement, so that the grain did not flow properly, but rather rushed to the rear of the trailer and came out from the top and the sides. The truck dumper was also raised to its maximum elevation, rather than the usual procedure of only partially elevating the mechanism. They also testified that the accident occurred after the truck was empty, and the lift had started to descend. The operator activated the lever to lower the lift, but it seemed to jerk or bounce as if it did not catch properly. The lift was lowered quickly for a few feet, then came to an abrupt halt, and the truck fell off backwards. The whole back end of the trailer started rolling towards the plaintiff, and the unit was damaged extensively. Subsquent to the occurrence, plaintiff made grain deliveries to defendant’s elevator, and the lift was raised and lowered in gradual stages.

The plant superintendent of defendant’s elevator, called as an adverse witness under Section 60 of the Civil Practice Act, testified that the mechanism had been in use since 1962. No vehicle had ever been turned back because of improper mechanical condition, the assumption being that if a vehicle is capable of coming in with a load of grain it is capable of being unloaded. The lift was maintained by a crew employed by defendant. A manual furnished by the manufacturer warned that an accumulation of water, dirt and other material could be detrimental to the operation of the mechanism. Water in the hydraulic oil could cause excessive corrosion, in turn causing vibration and wear. At the time of the accident, 1,600 trucks had been unloaded; at the time of trial, 7,500 trucks had been unloaded at this elevator. No other accidents ever occurred in connection with the operation of this mechanism.

The court then granted plaintiff’s motion to amend his complaint by adding a count based upon res ipsa loquitur. The plaintiff rested, and the defense presented its witnesses.

Donald Schaetzel, an engineer employed by defendant, investigated the accident in question. On January 23, 1964, he examined the vehicle and had photographs taken under his direction. He testified that the accident was caused, as shown in the photographs, because parts were missing in the rear wheel assembly of the truck. Seven of the eight necessary bolts in the assembly were missing. Corrosion in this assembly indicated that the parts had been missing for a period of time. If the missing bolts were in place, a jerky or jumpy motion would have had no effect on the trailer unit. Another witness testified as an expert that the absence of the bolts retaining the springs in the rear housing assembly would be the direct cause of the accident. Two employees of Screw Conveyor and defendant’s plant superintendent testified that after the accident they inspected the trailer unit and found bolts missing from the assembly.

The operator of the lift testified that he had raised the elevator in gradual stages as he had been taught. The lift was not raised to its maximum elevation, and the mechanism was not being lowered at the time of the accident. After the truck was emptied of grain, he helped plaintiff fold a canvas. As he was walking back to the controls he heard a noise, saw the truck coming down and ran.

We will first consider General Mill’s contention that the doctrine of res ipsa loquitur is not applicable in this case.

To apply the doctrine of res ipsa loquitur, plaintiff must establish that the injury was caused by an agent or instrumentality within the control or management of the defendant, that plaintiff was free from contributory negligence, and that the result is one normally not occurring without negligence in the control or management of the agency or instrumentality. Cobb v. Marshall Field & Co., 22 Ill App2d 143, 159 NE2d 520 (1959).

In Metz v. Central Illinois Electric & Gas Co., 32 Ill2d 446, 207 NE2d 305 (1965), our Supreme Court stated at p 449:

“Whether the doctrine [of res ipsa] applies in a given case is a question of law which must be decided by the court, but once this has been answered in the affirmative, it is for the trier of fact to weigh the evidence and determine whether the circumstantial evidence of negligence has been overcome. . . ."

Therefore if res ipsa applies, the trial court’s determination of fact may be disturbed by a reviewing court only if that determination is contrary to the manifest weight of the evidence. Smith v. Illinois Power and Light Corp., 297 Ill App 358, 17 NE2d 632 (1938).

The mere happening of an accident will not support an inference of negligence. Finfer v. Turck, 347 Ill App 72, 105 NE2d 785 (1952). The doctrine of res ipsa should only be applied if the circumstantial evidence justifies an inference of negligence. Edmonds v. Heil, 333 Ill App 497, 77 NE2d 863 (1948).

Defendant contends that the doctrine should not be applied because plaintiff did not show that the lift caused the accident, arguing that at the conclusion of plaintiff’s case there were three equally possible explanations of the damage to the truck: (1) negligent installation or manufacture of the lift; (2) negligent maintenance or the defective condition of the truck itself; and (3) negligent maintenance or operation of the lift.

We agree with the proposition that plaintiff must establish causation before he may recover, regardless of what theory he is advancing; and that the doctrine of res ipsa loquitur “. . . does not dispense with the requirement that the act or omission ... be established

as the proximate cause . . .” of the accident. Bish v. Employer’s Liability Assur. Corp., 236 F2d 62, 67 (5th Cir 1956). As stated in Prosser, Law of Torts (3d Ed 1964),

“ [a] cause is a necessary antecedent: in a very real and practical sense, the term embraces all things which have so far contributed to the result that without them it would not have occurred.” P 241.

However, plaintiff need not disprove all possible explanations of the accident. In May v. Columbian Rope Co., 40 Ill App2d 264, 189 NE2d 394 (1963), plaintiff was injured when a rope holding a scaffold broke. He sued the manufacturer of the rope on the theory of res ipsa. The court stated at page 273:

“Defendant asserts that plaintiff has not disproved the possibility that the rope was weakened by a mistaken cut while being shortened into usable lengths. However, there is no evidence to suggest that this happened. Moreover, plaintiff is not required to disprove every alternative hypothesis suggesting a cause other than negligence in order to recover.”

We believe that the plaintiff presented sufficient evidence to establish that the cause of the accident was the negligent maintenance or operation of the lift. As to defendant’s contentions that there were three equally possible explanations of the accident, it must be noted that the lift had been engaged in more than 9,000 operations prior to trial, and for a period of a few years. This occurrence constituted the only accident. Thus any possibility of negligence in the manufacture or installation of the mechanism would seem remote.

As to the contention that negligent maintenance of the truck was equally possible, the plaintiff testified that he was a mechanic, that he took good care of the unit, and that prior to the accident, the unit was in excellent condition. He also testified that the unit had been inspected by a Commerce Commission inspector, that he inspected the truck frequently, and that no bolts were missing. At the conclusion of plaintiff’s case, the most plausible explanation of the accident causation was the negligent maintenance or operation of the lift.

All of the evidence indicated that at the time of the accident, the truck was on the lift, that the lift was in operation and at an angle, and that the operation was within the control of defendant. Under any definition of causation, the lift would have to be an actual cause of the accident. In view of the testimony of the plaintiff and his passenger, we believe that the trial court was justified in finding that the operation of the lift proximately caused the accident, and in invoking the res ipsa doctrine.

Defendant next contends that, assuming res ipsa applies, it fully met its burden under the doctrine, and that the trial court erred in not entering judgment in its favor. The necessary implication of this argument is that once defendant introduced evidence that the accident was caused by bolts missing in the rear assembly of the truck, the inference of negligence disappears. However, in Metz v. Central Illinois Electric & Gas Co., 32 Ill2d 446, 207 NE 305 (1965) the court stated at page 449:

“Like any other proof it may be explained or rebutted by the opposing party. And while there appears to be conflict in Illinois decisions as to whether the presumption or inference of negligence raised by the doctrine of res ipsa loquitur vanishes entirely when any evidence appears to the contrary, the more recent, the more studied, and the more just view is that the inference, or presumption, does not simply vanish or disappear when contrary evidence appears, but remains to be considered with all the other evidence in the case and must be weighed by the jury against the direct evidence offered by the party charged.”

Thus the trial court as trier of fact could properly consider the inference of negligence created by res ipsa along with all of the evidence in the case. The defense was predicated entirely on its evidence that certain bolts were missing. The evidence came from an expert witness and from defendant’s employee. The latter testified that his examination of the truck a few days after the accident indicated to him that the bolts were missing for a period of time. As the trial judge pointed out in entering judgment for the plaintiff, he found that defendant had offered no testimony, expert or otherwise, as to how long the bolts had been missing. Moreover the trial court found that it was unlikely that a truck with such bolts missing could have transported a load of steel to Kansas and return with a full load of grain without incident. Additionally it should be noted, defendant’s own plant superintendent testified that defendant assumed that if a truck were capable of driving on the lift, it could be unloaded without inspection. The plaintiff testified that the unit was in good condition, and that no bolts were missing at his last inspection. The trial court did not err in finding the issues for the plaintiff.

Defendant finally contends that the judgment should be reversed and the cause remanded for a new trial because trial court erred in granting plaintiff’s motion to add a count based upon res ipsa loquitur at the conclusion of his case.

The Civil Practice Act (Ill Rev Stats 1967, c 110, § 46) provides:

“At any time before final judgment amendments may be allowed on just and reasonable terms, . . . changing the cause of action or defense or adding new causes of action or defenses, . . . . §46(1).
“A pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may be just.” § 46 (3).

Defendant argues that fundamental fairness requires that it be advised by plaintiff before trial that he intended to rely on the doctrine of res ipsa. However in this bench trial, defendant offered no objection to the amended pleading, nor did it request any continuance. And in fact, the defense presented was an attempt to rebut the application of the doctrine. We do not see how defendant was prejudiced by the amendation, and find that the trial court did not err in allowing the plaintiff to add the res ipsa count at the conclusion of his case.

Defendant concedes that res ipsa may be pleaded along with a count of specific negligence. See Erckman v. Northern Illinois Gas Co., 61 Ill App2d 137, 210 NE2d 42 (1965). Since we have found that the doctrine of res ipsa applies in the instant case, it is not necessary to consider whether plaintiff proved specific acts of negligence.

Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

LYONS, P. J. and BURKE, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE McCORMICK

license: Public Domain

text:
    Harold Rowlett, Plaintiff-Appellee, v. William Hamann, Defendant-Appellant.
    Gen. No. 52,862.
    First District, Second Division.
    June 17, 1969.

      Greenberg, Ziv & McCarthy, of Skokie (Thomas H. Riley, of counsel), for appellant.
    Marco and Mannina, of Downers Grove, for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

This appeal is taken from the judgment of $4,100 entered against defendant, William Hamann, for personal injuries and property damages sustained by Harold Rowlett, plaintiff. The suit was based on an accident which occurred on June 23, 1965, at about 5:10 p. m.

The plaintiff alleged that on that date he was riding his motorcycle east on Grand Avenue in River Grove, Illinois; that he was in the exercise of ordinary care and caution for his own safety and that of others; that the defendant, who owned and operated his 1962 four-door Chevrolet, was driving said car east on Grand Avenue at the time in question. The plaintiff alleged negligence on the part of the defendant and fixed his damages at $5,000. At the close of all the evidence, over objection, plaintiff filed Count II of his complaint, wherein he alleged that defendant’s conduct was willful and wanton.

From the evidence it appears that plaintiff was in the outside lane of a four-lane highway with two lanes going in each direction. He passed a truck which was in the inside lane, and when he was a little more than a car length ahead of the truck, halfway between the truck and a green Chevrolet [defendant’s], which was also in the inside lane, the Chevrolet pulled into the plaintiff’s lane, struck the front tire of the plaintiff’s vehicle and caused plaintiff to be thrown onto the parkway after turning several somersaults. The plaintiff was dazed for a few minutes, then got up and began wheeling his motorcycle toward the Chevrolet, at which point the Chevrolet was driven off.

Charles Petrucciani, the driver of the truck, who had witnessed the accident, testified that he had sounded his horn when the Chevrolet swerved into the lane near the plaintiff, but that it had already made contact with the motorcycle, and he saw the plaintiff “flying over the handlebars.” He stated that when the Chevrolet slowed down in front of him he observed the license number [DP 7028] and made a note of it on a piece of paper, together with the make and color of the car [green Chevrolet] . This paper was given to the plaintiff after the accident, and was introduced in evidence at the trial over the objection of the defendant. The witness testified that observing the paper at the trial did not refresh his memory as to the information it contained, but he stated he had looked at the license number of the car twice; that from the time he saw it the second time until he recorded it on the paper, a minute and a half or two minutes had elapsed. Petrucciani further testified that the driver of the Chevrolet was a man, but he could not identify the defendant as the driver. As to the facts surrounding the accident, the testimony of the plaintiff was to the same effect.

The defendant, William Hamann, who lived in River Grove, Illinois, testified that on June 23, 1965, he owned and had possession of a green Chevrolet; that he thought he had bought gasoline after work on the date in question at a station on Grand Avenue and River Road; that he did not recall what time he finished work that day; and that he was not involved in the accident that evening. Plaintiff introduced into evidence an official registration book issued by the Secretary of State, listing Illinois 1965 automobile license plates DP 7028 as having been registered to William Hamann and issued for a Chevrolet.

As previously set out, plaintiff’s original complaint alleged negligence on the part of the defendant, and an amended complaint filed at the close of the case alleged willful and wanton conduct on the part of the defendant. Defendant objected to the amended complaint, but his objection was overruled. At the close of all the evidence the plaintiff tendered two forms of verdict at the conference on instructions. The defendant objected and demanded a form calling only for a general verdict, at which point plaintiff withdrew his forms and proceeded upon defendant’s general verdict form. The jury returned a general verdict for the plaintiff in the sum of $4,100, and answered in the negative a special interrogatory as to whether the plaintiff was contributorily negligent. Judgment was entered on the verdict, and this appeal is from that judgment.

The defendant argues:

1) It was reversible error for the trial court to have granted plaintiff leave to file an amended complaint at the close of the evidence, for willful and wanton conduct;
2) The verdict was against the manifest weight of the evidence;
3) The trial court erred in failing to give “issues instructions”;
4) The paper upon which plaintiff’s witness wrote defendant’s license number and the color and make of the car was inadmissible hearsay evidence, and the trial court erred in failing to exclude it.

With reference to the first argument, the defendant recognizes in his brief that the determination as to whether the misconduct was willful and wanton is generally a factual question; defendant states, “no hard and thin line definition can be made.” See Myers v. Krajefska, 8 Ill2d 322, 329, 134 NE2d 277. Nevertheless, the core of a willful and wanton charge is that the person accused evinced a reckless disregard for the rights and safety of the complainant. The state of mind of the defendant at the time of the occurrence is the material factor, and ordinarily such state of mind must be proved by circumstantial evidence. In most cases, more than one inference can be drawn from a given fact. In the instant case, there is evidence that the defendant drove off after striking the plaintiff. From that the inference can be drawn that defendant was unconcerned with the physical condition of the plaintiff whom he had just struck; or that, even though he did care, he feared liability. We cannot say that either of these inferences would be unreasonable; however, the jury would be entitled to believe either one from the facts before them.

Malice may be inferred from conduct, and whether or not such malice existed is a question of fact for the jury. Chicago Traction Co. v. Mahoney, 230 Ill 562, 82 NE 868; Ficht v. Niedert Motor Service, Inc., 34 Ill App2d 360, 181 NE2d 386. In the record before us it cannot be said that the question of willful and wanton misconduct was so clearly in favor of the defendant that it was error for the trial court to have allowed plaintiff to amend his complaint and present the issue to the jury. An “error of judgment” by a motorist may establish no more than negligence, or it may establish willful and wanton misconduct, depending on the facts and circumstances present. We feel there was enough evidence in the record to justify the court’s order allowing the filing of that count.

The defendant’s second contention is that the verdict was against the manifest weight of the evidence. It is well settled in this State that a court of review will not set aside a jury verdict on the ground that it is contrary to the manifest weight of the evidence unless it is indisputable that the jury reached the wrong conclusion. On this point the defendant rests his argument on the premise that the jury returned its verdict based on a finding of willful and wanton misconduct, and he argues that such a finding is against the manifest weight of the evidence; that the verdict must be considered to be based on the willful and wanton charge, since the jury returned a general verdict, although the case had been submitted to the jury on both negligence and willful and wanton misconduct. In support of this proposition, defendant cites Greene v. Noonan, 372 Ill 286, 23 NE2d 720, in which case the court said at 291:

. . where the declaration consists of several counts, one or more of which state a cause of action the gist of which is malice, with others based upon negligence only, and the verdict is general, without specifying the count on which it is based, the presumption is that the verdict is based upon a cause of action of which malice is the gist.”

In Noonan, the defendant had moved at the close of all the evidence to withdraw the malice count from the jury’s consideration; his motion was overruled, and the trial court submitted the case to the jury on both counts. It was held that the trial court committed error in failing to withdraw the willful and wanton count from the jury.

In Smithers v. Henriquez, 368 Ill 588, 15 NE2d 499, the defendant had only filed a general motion for directed verdict and failed to demand a separate verdict on the two counts of negligence and willful and wanton misconduct. Defendant had failed to move for withdrawal of the willful count, and the court held defendant was not in a position to complain of the judgment.

In the case before us the defendant did request a withdrawal of the willful count, but failed to offer separate verdict forms to the jury and affirmatively objected to the plaintiff’s offer of separate verdict forms. At that point the plaintiff’s attorney stated:

“Judge, there have been four or five cases overruled because punitive damages were not separated from a general verdict. . . . I’ll tell you what I’ll do, I’ll withdraw my separate verdict form and use a general verdict form if he has no objection, but his objection — but I’m telling you what the law is to ask you whether or not you are waiving your right to separate verdicts.”

Defense counsel replied:

“Judge, I am not accepting or rejecting his offer. I am just tendering my form and objecting to his verdict forms setting forth separate — ”

At this point plaintiff’s counsel withdrew his special verdict form and agreed to use the general verdict form tendered by defendant’s counsel. As we have said, we believe there was sufficient evidence in the record to support the willful and wanton count. If there was not, under the circumstances previously set out, the defendant cannot now come to this court and ask for relief on the ground that the law presumed the verdict was on the willful and wanton count. Defendant has waived whatever objection he might have to the form of verdict.

The defendant contends that the court committed reversible error because an “issues instruction” was not given. No instructions, given or refused, were abstracted ; the defendant made no “good faith effort” to comply with Supreme Court Rule 342(g). In spite of that fact, we have examined the instructions in the record and find that the court committed no reversible error as far as the instructions are concerned.

Finally, defendant argues that the piece of paper on which plaintiff’s witness wrote the license number and make and color of defendant’s car was inadmissible hearsay, and that to permit its introduction into evidence was error. Where a witness testifies that he now has no memory of the facts contained in a written memorandum made by him, but vouches for its correctness, the writing should be admitted as evidence of the facts recited in the writing. It is past recollection recorded. McCormick, Evidence § 276 (1954 ed); Cleary, Handbook of Illinois Evidence § 17.32 (1963 ed). In Wolf v. City of Chicago, 78 Ill App2d 337, 223 NE2d 248, the court held that evidence of the character here in question is admissible. In Stanton v. Pennsylvania R.

Co., 32 Ill App2d 406, 178 NE2d 121, the court cited and quoted from Diamond Glue Co. v. Wietzychowski, 227 Ill 338, 347, 81 NE 392, as follows:

“Another condition under which a writing may be used is where the witness, after inspecting a writing, still has no independent recollection of the facts stated therein, but is able to state that he correctly reduced them to writing at the time of the occurrence or within such a time afterward that he had a perfect recollection of them.”

The judgment of the Circuit Court is affirmed.

Affirmed.

LYONS, P. J. and BURKE, J., concur.


author: MR. PRESIDING JUSTICE LYONS

text:
    Eva Elaine Smith, et al., Plaintiffs-Appellees, v. Alexander A. Pappas, Defendant-Appellant.
    Gen. No. 52,866.
    First District, Second Division.
    June 17, 1969.

      James M. Patek, William M. Flaherty, and John J. O’Connor, of Chicago, for appellant.
    Rosengard, Hecht & Moltz, of Chicago (Eugene Lieberman and Bernard W. Moltz, of counsel), for appellees.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from an order entered on November 20, 1967, vacating an order of dismissal entered December 16, 1965 for plaintiffs’ failure to answer defendant’s interrogatories.

On September 1, 1965 plaintiffs filed their actions for personal injuries alleged to have been sustained in an automobile accident, the action of each plaintiff being set out in a separate count of a single complaint. The defendant filed his answer, jury demand, and three sets of written interrogatories, one set for each plaintiff. The plaintiffs, in turn, filed interrogatories and objections to defendant’s interrogatories, but failed to call for a hearing on the objections filed. On December 16, 1965, the trial court sustained defendant’s motion that plaintiffs’ complaint be stricken and the suit dismissed for failure to answer defendant’s interrogatories within the time prescribed by rule.

Plaintiffs, on August 10, 1967, filed a Section 72 Petition (Ill Rev Stats, c 110, § 72) praying vacation of the order of dismissal. The petition alleged as grounds for the relief that counsel had agreed to answer each other’s interrogatories and not to appear at the scheduled hearing on defendant’s motion for dismissal for failure to answer interrogatories. The petition further alleged that counsel for defendant appeared and obtained an order of dismissal notwithstanding the agreement. On November 20, 1967, the prayer of the petition was granted, the order of dismissal vacated, and the cause placed on the jury calendar. It is from the order of November 20, 1967, that defendant prosecuted this appeal.

The defendant-appellant contends that plaintiffs failed to demonstrate sufficient grounds for relief under Section 72 of the Civil Practice Act. A reviewing court, in situations such as the present where the record does not contain a report of the proceedings and where the order appealed from recites that the court is fully advised in the premises, must presume that the court acted in conformity to law and had before it sufficient facts to support its order. Boyle v. Veterans Hauling Line, 29 Ill App2d 235, 172 NE2d 512 (1961). We do not, therefore, consider the merits of the action, and there remains to be considered only the sufficiency of the petition.

A petition under Section 72 of the Civil Practice Act, although filed in the original proceeding, is not a continuation thereof, but is treated as a new action. It is subject to the same rules of pleading as any other action, and therefore the petition must state adequate grounds for relief and petitioners’ entitlement thereto. Mutual Nat. Bank of Chicago v. Kedzierski, 92 Ill App2d 456, 236 NE2d 336 (1968); Wilson v. Wilson, 56 Ill App2d 187, 205 NE2d 636 (1965). The only question with respect to the petition which this court may consider is whether it totally fails to state a cause of action and is thus insufficient to support the order of the court below, less serious defects, if any, having been waived by defendant-appellant’s having failed to challenge the sufficiency of the petition in the trial court. De Jarnett v. Roseborough, 94 Ill App2d 164, 236 NE2d 276 (1968) ; Grizzard v. Matthew Chevrolet, 39 Ill App2d 9, 188 NE2d 59 (1963).

The defendant-appellant contends that the petition is totally defective by reason of plaintiffs having failed to allege facts in support of the contention contained therein that they have a meritorious cause of action, citing Grizzard v. Matthew Chevrolet, 39 Ill App2d 9, 188 NE2d 59 (1963). In that case the defendant was denied Section 72 relief after a default judgment had been entered against him, the court finding (1) that the reason for the default having been entered was the negligence of the defendant from which Section 72 is not intended to provide relief, and (2) that the mere assertion by the defendant that he had a meritorious defense was a conclusion only, which could not be considered on its merits for the purpose of granting Section 72 relief.

Appellant reasons that since a defendant who seeks to have a default judgment set aside must allege facts in support of his allegation that he has a meritorious defense, a plaintiff who seeks relief from an order of dismissal must likewise allege in his petition facts which support the existence of a meritorious cause of action. We cannot agree. The facts which must be alleged in a petition for relief under Section 72 are not those which formed the basis for the original action, but those which allegedly entitle the petitioner to the relief sought. Thus, where a defendant seeks to vacate a default judgment on the ground that he has a meritorious defense, he must allege facts in support of the existence of that defense. Where, however, in a case such as the present one the alleged ground for relief is the existence of some ultimate fact unknown to the court at the time of entry of the order which, if known, would have prevented rendition of the judgment, the allegations of the petition must be framed to support the existence of the ultimate fact asserted. Here the fact asserted to exist which, if known to the court, would have prevented rendition of the judgment, was an alleged agreement between counsel that neither would appear at the hearing on defendant’s motion to dismiss and that each would answer the other’s interrogatories. Allegations of fact in support of that ultimate fact, as well as diligence and lack of negligence on the part of plaintiffs-appellants are contained in the petition.

We conclude that the petition does not totally fail to state a cause of action and therefore does support the order of the trial court. The order of the Circuit Court, vacating the order of dismissal, is affirmed.

Order affirmed.

BURKE and McCORMICK, JJ., concur.


author: MR. JUSTICE BURKE

text:
    Midwest Contractors Equipment Co., Inc., Plaintiff-Appellant, v. Bituminous Casualty Corporation, Defendant-Appellee.
    Gen. No. 53,392.
    First District, Second Division.
    June 17, 1969.

      Kralovec, Sweeney, Marquard & Scoby, of Chicago (Edward V. Scoby, of counsel), for appellant.
    Doyle, Berdelle & Tarpey, of Chicago (Leo M. Tarpey, Jr., of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This was an action for declaratory judgment brought by Midwest Contractors Equipment Company, Inc., (hereinafter referred to as “Midwest”) against Bituminous Casualty Corporation (hereinafter referred to as “Bituminous”) seeking a declaration that Midwest was an “insured” within the terms of an automobile insurance policy issued by Bituminous to Al Cohn, d/b/a Alco Steel Service (hereinafter referred to as “Alco”). The case was tried without a jury; the trial court found that Midwest was not entitled to coverage under the policy and entered judgment in favor of Bituminous. Midwest appeals.

This action arose out of a judgment which had been entered against Midwest in an action brought by John Hedge for injuries sustained when Hedge was struck in the head by the handle of a boom hoist hand winch. Alco owned a flatbed truck on which was mounted the boom hoist. The hoist consisted of two steel pipes joined at the top forming an “A” frame. Loads were raised and lowered by means of a cable running from the transmission of the truck, under the cab, and up and over the top point of the “A” frame. A hand winch on the side of the truck could be employed in increasing or decreasing the angle of the “A” frame as it extended over the rear of the truck.

In November 1960 Cohn loaned the truck to Richard Nardi, president of State Wrecking Company (hereinafter referred to as “State Wrecking”), which was then engaged in a wrecking job in Chicago. The Alco truck was to be used for tight places where a larger crane could not be operated. After State Wrecking completed the wrecking job, the Alco truck was taken to the State Wrecking yard in Chicago, with the knowledge and consent of Cohn.

In March 1961 the drum shaft of a crane owned by State Wrecking was in need of repairs. The drum was removed from the crane and taken to Midwest in a State Wrecking dump truck where the repairs were to be made. The repairs were completed by Midwest in April 1961 and the drum shaft was picked up by a State Wrecking dump truck and returned to the State Wrecking yard.

On April 6, 1961, Arlie Abbott, a Midwest mechanic, was sent to State Wrecking to make the necessary connections of the drum shaft to the State Wrecking crane. A stipulation was entered between the parties that Abbott had testified at the Hedge trial that the drum shaft, which weighed approximately 2,000 pounds, was removed from the State Wrecking dump truck by means of the Alco truck hoist by two State Wrecking employees, one of whom was John Hedge. The drum shaft then remained suspended on the Alco truck hoist until the State Wrecking crane was made ready to receive the drum. John Hedge then backed the Alco truck up against the crane and, by means of the hoist, lowered the drum near the position it was to occupy in the crane. However, it developed that the drum should have been positioned another foot further back into the crane, but the Alco truck was already backed against the crane. Hedge stated that he could reposition the drum by lowering the “A” frame to a different position by means of the hand winch. Hedge then knocked loose the bolt securing the gears of the winch, thereby freeing the gears; the weight of the drum shaft suspended on the hoist caused the handle of the winch to spin and strike Hedge in the head. The stipulation further recited that Abbott’s only purpose on the site was to make the necessary connections from the drum shaft to the crane after it had been positioned in the crane, and that he neither gave orders to any of the men at the scene nor supervised any of the work. The stipulation was admitted into evidence over objection of Midwest that it was not relevant to the issues before the court. At the Hedge trial, Hedge claimed that Abbott told him to use the hand winch to lower the “A” frame so that the drum shaft could be properly positioned in the State Wrecking crane. Abbott, on the other hand, stated that he did not tell Hedge to use the hand winch, but in fact told Hedge not to do so.

At the time of the accident, the Alco truck was insured by Bituminous through the policy of insurance under which Midwest now seeks recovery. Hedge thereafter filed suit against Midwest and Alco. Bituminous defended Alco in the suit, but refused to defend Midwest when requested by Midwest to do so. The jury returned a verdict in favor of Hedge and against Midwest and a verdict against Hedge and in favor of Alco, and judgments were entered accordingly. Midwest subsequently satisfied the judgment entered against it and thereafter filed this action for a declaration that Midwest was within the coverage of Alco’s policy issued by Bituminous, on the ground that State Wrecking had implied authority from Alco to allow Midwest to use the Alco truck. Bituminous answered that Midwest was neither using the Alco truck at the time of the accident nor did it have permission from Alco to use it; and that the Midwest action was further barred by several exclusionary provisions of the Alco policy, to which Midwest replied that Bituminous’ refusal to defend the Hedge action on the demand of Midwest constituted a waiver of Bituminous’ right to rely on the exclusionary provisions contained in the policy.

The trial court, ruling in favor of Bituminous, held that Midwest was not using the Alco truck at the time of the accident, that Midwest did not have permission from Alco to use the truck, and that the truck was not being used as a truck when Hedge was injured.

Midwest maintains that the jury’s verdict and the judgment entered in the Hedge action are dispositive of all facts and circumstances of the Hedge accident which in turn become the operative facts in this action. Midwest argues that, by its verdict, the jury found that Midwest, through its employee Abbott, was using the Alco truck at the time of the accident. While we agree that the verdict in the Hedge case is dispositive of the issue of negligence on the part of Midwest, we do not agree that it is dispositive of the issue presented here, namely, whether Midwest was a “user” of the Alco truck at the time of the accident so as to fall within the coverage provisions of the Alco policy. The case was submitted to the Hedge jury on two theories, first, that Midwest negligently and carelessly failed to warn Hedge of defects in the boom hoist of which Midwest had knowledge or in the exercise of reasonable care should have had knowledge, and second, that Midwest carelessly and negligently directed Hedge to use the Alco hoist in order to lift the drum shaft when Midwest knew or should have known that the hoist was in a defective condition. The Hedge jury was not presented with the issue of whether Midwest was the user of the Aleo truck at the time of the accident. Because the jury found that Midwest was guilty of negligence by either failing to warn Hedge of defects or of directing him to use the hoist, or both, it does not follow that the jury found that Midwest was the user of the Alco truck. The issue of whether Midwest was the user of the Alco truck at the time of the accident was before the court below and the stipulation of Arlie Abbott’s testimony was relevant thereto. Midwest’s witness, Abbott, testified at the Hedge trial that he was not using the Alco truck at the time of the accident; Midwest should not now be heard to deny the alleged nonuser of the truck. Higgins v. Atchison, T. & S. F. Ry. Co., 57 Ill App2d 254, 260-261, 205 NE2d 648. Furthermore, even under Hedge’s theory of the case Midwest was not shown to have been a user of the Aleo truck because it was alleged that Abbott merely directed Hedge to use the hoist. Midwest was not the user of the Alco truck at the time of the Hedge accident so as to fall within the coverage of the Alco policy issued by Bituminous.

Assuming, arguendo, that Midwest was in fact using the Alco truck at the time of the Hedge accident, the Alco policy would not afford coverage to Midwest. The policy protects the named insured (here, Alco) as well as those using the vehicle with permission of the insured (here, State Wrecking). There is no evidence that Cohn, d/b/a Alco, knew or in any way permitted Midwest to use the truck and, consequently, Midwest cannot claim coverage under the Alco policy. The argument raised by Midwest that it had implied permission from Alco to use the truck is unavailing. Permission by the named insured to a permittee to use a vehicle does not authorize the permittee to allow a third party to use the vehicle. See Hays v. Country Mut. Ins. Co., 28 Ill2d 601, 606, 192 NE2d 855.

A third reason Midwest is not entitled to coverage under the Alco policy is that the policy excludes employees of the insured from coverage. Hedge was employed by State Wrecking which, in turn, fell within the coverage of the policy by virtue of the express permission from Alco to use the truck. The “insured” in a policy is not limited to the insured named in the policy, but applies to “anyone who is insured under the policy.” General Acc. Fire & Life Assur. Corp. v. Brown, 35 Ill App2d 43, 52, 181 NE2d 191. Since State Wrecking was a permittee and consequently one of those “insured under the policy,” its employee Hedge was excluded from coverage since he was injured in the course of his employment.

Finally, Midwest’s contention that Bituminous waived its right to rely on the exclusionary provisions of the policy by its refusal to defend upon Midwest’s demand is unavailing. An insurer is under a duty to defend a suit against its insured where the complaint in that action states facts which fall within the coverage of the policy; where the complaint fails to bring the case within the policy coverage, the insurer may rightfully decline to defend. See Sims v. Illinois Nat. Cas. Co. of Springfield, 43 Ill App2d 184, 189-190, 193 NE2d 123. An examination of the Hedge complaint reveals no relationship between Alco and Midwest in that it lacks an allegation that Midwest was using the Alco truck with the permission of Alco. See Heape v. Bituminous Cas. Co., 36 Ill App2d 131, 136, 182 NE2d 918. Bituminous here was justified in refusing Midwest’s demand that it defend Midwest in the Hedge action and consequently has not waived its right to rely upon the provisions of the Alco policy.

For these reasons the judgment is affirmed.

Judgment affirmed.

LYONS, P. J. and McCORMICK, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Emily Kaye, Defendant-Appellant.
    Gen. No. 53,582. (Abstract of Decision.)
    First District, Second Division.
    June 17, 1969.
    Rehearing denied July 11, 1969.

      J. Edward Jones, of Blue Island, for appellant;
    no brief filed for appel-lee.
   Opinion by JUSTICE BURKE. Not to be published in full.


author: MR. PRESIDING JUSTICE DRUCKER

text:
    Westlake Finance Company, a Corporation, Plaintiff Appellee, v. Alfield Brown, Defendant-Appellant.
    Gen. No. 53,388.
    First District, Fourth Division.
    June 18, 1969.
    Albert Koretzky, of Chicago, for appellant.

      Olson & Hanelin, of Chicago (J. W. Olson, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

On August 24, 1967, plaintiff obtained a judgment by confession against defendant on a retail installment contract and wage assignment. A proceeding to confirm the judgment by confession was commenced and on June 24, 1968, the trial court denied defendant’s motion for judgment on the pleadings and confirmed the judgment by confession for $861.90.

In his appeal from that judgment, defendant raises the sole point that his motion for judgment on the pleadings should have been granted because the Retail Installment Contract that he executed with plaintiff’s assignor shows on its face that the transaction violated the usury provisions of the Consumer Finance Act.

Evidence

The facts of the instant case are not in dispute. On June 28, 1963, Pappy Motors, Inc., sold defendant a used 1958 Buick for $950. Defendant made a down payment of $150 ($70 in cash and an $80 note) and executed a Retail Installment Contract. On its face the Retail Installment Contract shows the following items in abbreviated form:

(a) Price of car........................$ 950 -

(b) Down payment: Cash $70.00.. .80.00

note ............................$ 150.00

(c) Unpaid balance.....................$ 800.00

(d) Finance charge plus amount, if any,

charged for following insurance coverages ..........................$ 654.40

No insurance coverages included except as checked below:

For term of 24 months from date hereof:

(e) Official fees........................$ None

(f) Time balance owed..................$1454.46

Defendant also executed a wage assignment in favor of Pappy Motors, Inc. The contract and wage assignment were subsequently assigned to the plaintiff, Westlake Finance Company.

According to the record filed herein defendant obtained leave to file an amended answer (his original answer does not appear). It alleged that plaintiff’s assignor extended credit to defendant in the sum of $800 and was to receive the total sum of $1454.40 over a period of 24 months for a yield of 25% per year on the unpaid balance of $800; that as consideration for the payment of $800 in credit defendant executed the Retail Installment Contract and a wage assignment for $1454.40; that said payment constituted a loan within the meaning of the Consumer Finance Act; that plaintiff’s assignor was not licensed to engage in the business of making loans or extending credit of the value of $800 or less in payment of any wage assignments where interest in excess of 7% per annum may be allowed; and that the contract and wage assignment were void and unenforceable. Defendant then moved for judgment on the pleadings. The motion was denied and defendant appealed.

Opinion

This appeal presents only the question of the applicability of the Consumer Finance Act, Ill Rev Stats 1961, c 74, § 19 et seq., to the instant transaction. Section 34 of that Act provides:

The payment of $800.00 or less in money, credit, goods, or things in action, as consideration for any sale or assignment of, or order for, the payment of wages, salary, commissions, or other compensation for services, whether earned or to be earned, shall, for the purposes of regulation under this Act, be deemed a loan secured by such assignment, and the amount by which such assigned compensation exceeds the amount of such consideration actually paid shall, for the purposes of regulation under this Act be deemed interest or charges upon such loan from the date of such payment to the date such compensation is payable. Such transaction shall be governed by and subject to the provisions of this Act.

Defendant argues that since plaintiff made an assignment of wages in the sum of $1,454.40 on a credit of only $800, the transaction is considered a loan and the balance of $654.40 is deemed to be interest. Since this interest exceeds the 7% maximum allowed by law to a nonlicensee under the Consumer Finance Act, defendant claims the transaction is invalid.

Defendant argues that his motion for judgment on the pleadings should have been granted because the Retail Installment Contract shows on its face that only $800 and no more was given as credit in consideration of the wage assignment. A motion for judgment on the pleadings requires that the court accept as true all well-pleaded facts of the opposite party, and decide only questions of law. If an issue of fact exists, then the motion must be denied. Crane Paper Stock Co. v. Chicago & N. W. R. Co., 86 Ill App2d 90, 94-95, 230 NE2d 273.

It is clear from Item (c), “(u)npaid balance,” on the Retail Installment Contract, that $800 credit was extended to defendant in consideration of his wage assignment; if there is no other extension of credit, then the transaction is within the aegis of the statute. However, the contract provides that in addition to the $800 an amount is being charged for insurance coverage (it is included in the $654 item). Even though the exact amount of credit for insurance coverage is not ascertainable from the pleadings, defendant cannot successfully maintain that as a matter of law only $800 in credit was extended. The denial of defendant’s motion for judgment on the pleadings and the confirmation of the judgment by confession are affirmed.

Affirmed.

McNAMARA and STAMOS, JJ., concur.

       Ill Rev Stats, c 74, §§ 36 and 37.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lindberg P. Evans (Impleaded), Defendant-Appellant.
    Gen. No. 52,209. (Abstract of Decision.)
    First District, Third Division.
    June 19, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Saul H. Brauner, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant;
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Gerald T. Rohrer, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE SCHWARTZ. Not to be published in full.


text:
    Roland A. Olson, Plaintiff-Appellee, v. City of Chicago, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 52,975. (Abstract of Decision.)
    First District, Third Division.
    June 19, 1969.
    Rehearing denied August 11, 1969.
    Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Marsile J. Hughes, Assistant Corporation Counsel, of counsel), for appellant;
    James F. Hynan and James A. Condon, of Chicago, for appellee.
   Opinion by PRESIDING JUSTICE SULLIVAN. Not to be published in full.


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. LeRoy Johnson, Defendant-Appellant.
    Gen. No. 53,055.
    First District, Third Division.
    June 19, 1969.

      John J. Crown and Joan M. Hall, of Chicago (Raymond, Mayer, Jenner & Block, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Thomas J. Immel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

LeRoy Johnson was convicted by a jury of murder and sentenced to a term of fourteen to twenty years in the penitentiary. He contends that he was not proven guilty beyond a reasonable doubt, that his case should have been submitted to the jury on the issue of involuntary manslaughter and that his motion to suppress an oral confession was erroneously denied.

Stonewall Edwards was shot and killed by Johnson in the afternoon of August 26, 1966. Earlier in the day Johnson argued with his estranged girl friend, Mrs. Christine Cousins, and left his glasses in her apartment. Later she went to his home to return the glasses, accompanied by her four-year-old son, her mother and Edwards, a family friend. Johnson was standing in the outside doorway of a hall which led to his first-floor apartment. She told him she had brought the glasses back so that he would not have to come to her home.

Mrs. Cousins testified that Johnson, who had been drinking, invited herself, then her mother, and then Edwards into his apartment. They all declined. Edwards said he did not have the time, that he did not like Johnson anyway and for Johnson to stay away from the Cousins home. Johnson said something about killing Edwards. Edwards responded, “Why kill me? Why don’t you just fight it out?,” dropped his briefcase and took off his coat. Mrs. Cousins hurried away with her child. When she was about 50 feet away she glanced back and saw the two scuffling together with their hands on a gun. She screamed a warning to her mother, ran to a nearby building for help and heard gunshots while she was calling the police.

This was substantiated by her mother, who testified that Johnson said, “I ought to kill you” and Edwards replied, “Why don’t you fight me fair?” She also stated that Johnson raised an object, that she reached for the object but ran when her daughter cried out that it was a gun.

The police were there when the women returned to the scene. The policemen testified that when they arrived Johnson was standing in the outside doorway with a gun in his hand. He dropped the gun upon police command. The gun had five cartridges and all of them had been discharged. Four policemen and the two women testified that Edwards’ feet or legs were inside the doorway and that the rest of his body was lying on the sidewalk. He had been shot three times.

At the police station Johnson told the officer who questioned him that he quarreled with Edwards and that he removed a revolver from his shirt and shot him.

At his trial Johnson said that the only thing he told the police was that he shot a man. He testified that he was leaning against the doorway when he and Edwards started to argue, that Edwards took off his hat and coat, threw them on the ground, pointed his finger in his face, lunged at him, pushed him into the hallway and started banging his head against the wall. As he felt himself blanking out he reached in his pocket for his gun and shot Edwards. He said that Edwards fell with his body inside the hall — that just part of his head was on the sidewalk.

Johnson argues that the State did not present any evidence to rebut his testimony that he acted in self-defense, and that it failed to prove beyond all reasonable doubt that the killing of Edwards was not justified. In the alternative he argues, for the first time on appeal, that the killing was voluntary manslaughter. Also for the first time it is contended, in oral argument before this court, that it was the trial court’s obligation to give an instruction on voluntary manslaughter although none had been requested at the trial. In support of his first two arguments Johnson points out that he was at his own home, that Edwards had no legitimate reason for being there, that his testimony that Edwards pushed him into the hallway was corroborated by the State’s witnesses who said that Edwards’ body was partially inside the hallway, and that he did not flee after the shooting.

The use of force intended or likely to cause death or great bodily harm is justified only when a person believes such force is necessary to prevent imminent death or great bodily harm to himself and the belief is reasonable. Ill Rev Stats, c 38, § 7-1 (1965). If the belief is unreasonable and death results, the use of such force constitutes voluntary manslaughter. Ill Rev Stats, c 38, § 9-2 (1965).

Self-defense is an affirmative defense and, once it is raised by the defendant, the State must prove his guilt beyond a reasonable doubt on this issue as well as on the other elements of murder. Ill Rev Stats, c 38, §§ 3-2(a), (b), 7-14 (1965). Whether a killing is justified under the law of self-defense is a question of fact to be determined by the jury under proper instructions. People v. Brooks, 52 Ill App2d 473, 202 NE2d 265 (1964).

The State’s evidence was sufficient to sustain the murder verdict. It showed that Johnson spoke of killing Edwards before they started to fight, that he pulled his gun before they scuffled, that the scuffle took place outside the building and that the upper portion of Edwards’ body was lying outside the building. The evidence further showed that Edwards was unarmed and that Johnson fired his gun five times and made no claim of self-defense upon being arrested.

Johnson cites the case of People v. Jordan, 4 Ill 2d 155, 122 NE2d 209 (1954), and argues that the jury could not reject his testimony of the actual shooting since the State offered no evidence of what took place when he and Edwards were alone. The defendant’s reliance on this case is misplaced. In Jordan there were no eyewitnesses to the encounter between the defendant and the deceased. The court found that there was only one version of what occurred when the two men met— the defendant’s, and that all of the evidence pointed to but one conclusion — that of self-defense. In this situation, the court stated that the defendant’s version of the encounter could not be disregarded by a jury. However, the court listed limitations to this rule, one of them being that the defendant’s story could be rejected if it was contradicted by other facts and circumstances. This exception is applicable to the present case. The State’s evidence contradicted much of Johnson’s testimony on material points and thus posed an issue for resolution by the jury.

It is the province of a jury to determine the credibility of witnesses and the weight to be given their testimony. A jury’s verdict will not be disturbed unless contrary to the evidence or so unreasonable, improbable or unsatisfactory that it justifies a reasonable doubt of the defendant’s guilt. People v. Brooks, supra. The State’s evidence overcame the defense of justification and fully supported the jury’s conclusion that Johnson was guilty of murder.

The trial court did not err in not giving the jury instructions and verdicts on voluntary manslaughter. The defendant’s arguments that the jury should have been instructed only on manslaughter hinge on his contention that the evidence was insufficient to prove that the crime was murder. First, the State was entitled to instructions on murder because the State’s evidence supported this charge. People v. Matter, 371 Ill 333, 20 NE 2d 600 (1939). Second, while Johnson’s testimony raised the issue of voluntary manslaughter as well as self-defense and he would have been entitled to instructions on this issue, he deliberately waived this right. His attorney informed the court that the defendant directed him not to present a manslaughter instruction. Johnson substantiated this and in answer to the court’s questions said that he wanted to be tried on the issue of murder only. Third, when the evidence supports a charge of murder, the trial court has no obligation, as the defendant contends he has, to instruct the jury on voluntary manslaughter — in the absence of a request for such instructions. People v. Taylor, 36 Ill2d 483, 224 NE2d 266 (1967); People v. Adams, 36 Ill2d 492, 224 NE2d 252 (1967). Fourth, the defendant failed to preserve these points for review. They were not raised at his trial, were not made in his written motion for a new trial and were not listed among the points and authorities in his principal brief.

The defendant further contends that the trial court committed error in not suppressing his oral statement to the police. He argues that the State did not prove that he was advised of his constitutional rights or that he intelligently and knowingly waived them.

At the hearing to suppress the oral confession the interrogating officer testified that he informed Johnson of his right to remain silent, warned him that anything he might say would be used against him, and advised him that he had the right to an attorney and that an attorney would be furnished if he could not afford one. He said that Johnson responded affirmatively to each explanation and warning. The officer then asked him if he wanted to tell what happened and he gave an oral statement of what had occurred. He was asked but refused to make a written statement. Two other officers corroborated this testimony.

The interrogating officer also testified that later the same day Johnson again refused to make a written statement after an assistant State’s attorney advised him of his constitutional rights. The two other officers stated they did not see the assistant State’s attorney at the station and the State conceded no such questioning occurred.

Johnson testified that he was not warned of his rights. He said that he asked several times to make a telephone call and was refused. This was denied by the interrogating officer.

In Miranda v. Arizona, 384 US 436 (1966), the court held that a person must be made aware prior to custodial interrogation that he has the right to remain silent, that any statement he makes may be used against him and that he has the right to the presence of an attorney, either retained or appointed.

At a hearing to suppress a confession it is the trial judge’s responsibility to determine the credibility of witnesses and the competency of the confession and his decision will not be overturned unless it is manifestly against the weight of the evidence. People v. Carter, 39 Ill2d 31, 233 NE2d 393 (1968). Three police officers testified that proper warnings were given the defendant prior to his being questioned. The defendant contends that the interrogating officer’s testimony concerning his being questioned by an assistant State’s attorney, conceded by the State not to have occurred, casts doubt upon the whole of the officer’s testimony. However, two other officers corroborated his testimony that appropriate warnings were given. Their testimony was not impeached in any way and the total evidence is sufficient to support the finding that adequate warnings were given.

A more critical question is raised on the issue of waiver since the defendant made no express statement of waiver. In Miranda the court admonished that where a statement is taken without the presence of an attorney, “a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” The court said an express statement that an individual is willing to make a statement and does not want an attorney, followed closely by a statement could constitute a waiver, whereas mere silence of the accused after warnings are given, or simply the fact that a confession was in fact eventually obtained will not raise a presumption of waiver. The court added: “The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant.”

The defendant showed that he was fully aware of his rights by answering “yes” after each warning. He was then asked if he wanted to state what had happened. He gave a brief oral statement of what occurred but refused to put it in writing. His refusal to make a written statement demonstrated an awareness of his rights and the ability to exercise them. It also indicates that he had this knowledge and ability when he gave his oral statement and that he made a knowing, intelligent waiver of rights at that time. Under all these circumstances, a “fully effective equivalent” to an express statement of waiver was made, and the trial court’s determination that the waiver was understandingly made was not improper. Cf.: U. S. v. Hayes, 385 F 2d 375 (4th Cir 1967), cert denied, 390 US 1006 (1968).

The judgment is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Whitely Estates Corporation, an Illinois Corporation, Plaintiff-Appellant, v. Joseph Cappelletti and Mary Cappelletti, His Wife, Defendants-Appellees.
    Gen. No. 53,390.
    First District, Third Division.
    June 19, 1969.
    Bernard Allen Fried, of Chicago, for appellant.
    Charles G. Levy, of Chicago, for appellees.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Judgment by confession was entered against the defendants and sixty days following the entry of the judgment, the defendants moved to “vacate” the judgment, alleging that they possessed a good defense on the merits and attached supporting affidavits. The trial court granted the defendants leave to appear and to make their defense. The court further ordered the judgment to stand as security and that the execution of judgment be stayed. It is from this order that the plaintiff prosecutes this appeal. The plaintiff contends that the motion should have been denied since the motion and attached affidavits were legally insufficient.

The initial question is whether this court has jurisdiction to entertain this appeal. The defendants contend that the order appealed from is in fact an order opening the judgment by confession which is not a final order and which is therefore not appealable.

Laxity of expression has caused some confusion between the terms “opening” a judgment and “vacating” a judgment. Such laxity is present in the instant case. Even though the motion filed by the defendants was entitled “Motion To Vacate Judgment by Confession” an examination of the court’s order reveals that it must be construed as an order which opened the judgment by confession pursuant to Supreme Court Rule 276 (Ill Rev Stats 1967, c 110A, § 276) because it permits the defendants to obtain a hearing on the merits while the judgment remains in full force and stands as security. See: National Boulevard Bank of Chicago v. Corydon Travel Bureau, 95 Ill App2d 281, 238 NE2d 81; Farmers Bank of North Henderson v. Stenfeldt, 258 Ill App 428.

It is well established that an order opening a judgment by confession and granting leave to plead is not a final order and has therefore been held to be not appealable. (Skolnick v. Susco Production, 344 Ill App 559, 101 NE2d 632; Farmers Bank of North Henderson v. Stenfeldt, supra.) However, the plaintiff argues that since the defendants’ motion was made more than thirty days after the entry of the judgment, the motion to vacate must be treated as a petition for post-judgment relief pursuant to section 72 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 72). The plaintiff then reasons that an appeal must lie from the order since section 72(6) provides: “Any order entered denying or granting any of the relief prayed in the petition is appealable.” (Emphasis supplied.)

We do not agree with the plaintiff’s contention that the defendants’ motion to vacate should be treated as a section 72 petition for two reasons.

Firstly, Supreme Court Rule 276 specifically sets forth the requirements to open a judgment by confession. The rule significantly does not limit the time for filing such a motion to thirty days from the entry of the judgment but only requires a showing by the moving party that he has been diligent in presenting his motion. Even after a lapse of thirty days, it has been held that a trial court continues to exercise its equitable jurisdiction to hear motions to open or vacate judgments by confession. (Deibler v. Bernard Bros., Inc., 319 Ill App 504, 48 NE2d 422.) The very presence of Rule 276 reflects judicial awareness of the unusual nature of judgments by confession since they are entered without contest. For this reason, the courts, in entertaining motions seeking relief from such judgments, exercise equitable jurisdiction and apply different considerations from those involved when a party seeks relief from other types of judgments. (See: Klingbiel, Relief From Judgments, 1951 U Ill LF 121, 143.) We would have to ignore this distinction if we were to hold that the order appealed from was based on section 72 rather than upon Supreme Court Rule 276.

Secondly, the application of section 72(6) to the instant case would give the plaintiff a right to appeal from a nonfinal, interlocutory order absent a Supreme Court Rule conferring such a right. The jurisdiction of the Appellate Court is limited to reviewing appeals from final judgments and from certain interlocutory orders specified by the rules of the Supreme Court. (LaSalle Nat. Bank v. Little Bill “33” Flavors, 80 Ill App2d 298, 225 NE2d 465.) Section 7 of article VI of the Illinois Constitution, effective January 1, 1964, provides for an appeal as of right to the Appellate Court from final judgments of a Circuit Court except from those judgments appealable directly to the Supreme Court and from judgments of acquittal after a criminal trial. Section 7 further provides:

“The Supreme Court shall provide by rule for expeditious and inexpensive appeals. . . . The Supreme Court may provide by rule for appeals to the Appellate Court from other than final judgments of the Circuit Court.”

The Supreme Court has enumerated several types of interlocutory orders which are appealable as of right to the Appellate Court in Supreme Court Rule 307, but an order opening a judgment by confession is not therein enumerated.

In People ex rel. Stamos v. Jones, 40 Ill2d 62, 237 NE2d 495, the Supreme Court held that the language in article VI, section 7 of the Illinois Constitution that “The Supreme Court shall provide by rule for expeditious and inexpensive appeals” means that the Illinois Constitution has placed responsibility for rules governing appeal in the Supreme Court and not in the General Assembly. The Supreme Court in Jones pointed out the Article VI contains five references to the rule-making power of the Supreme Court, and in only one instance is there a manifestation of clear intent to authorize legislative interference with this rule-making power. This one instance appears in section 5 of article VI which provides: “Subject to law hereafter enacted, the Supreme Court has authority to provide by rule for appeal in other cases from the circuit courts directly to the Supreme Court.” (Emphasis supplied.) Such a qualification does not appear in the relevant language of section 7 of the Judicial Article wherein “The Supreme Court may provide by rule for appeals to the Appellate Court from other than final judgments of the Circuit Court.” This court must conclude that the Supreme Court has the sole responsibility for promulgating rules governing a right to appeal to the Appellate Court from other than final judgments. The absence of such a rule governing a right to appeal from this interlocutory order prompts us to dismiss this appeal.

Appeal dismissed.

SCHWARTZ and DEMPSEY, JJ„ concur.


author: MR. PRESIDING JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Louis Bell, Defendant-Appellant.
    Gen. No. 52,066.
    First District, First Division.
    June 23, 1969.

      Angelos & Angelos, of Chicago (Basil C. Anagnos, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Edward Stasukaitis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

Defendant, Louis Bell, was indicted for the crime of attempted rape. After a bench trial the defendant was convicted of the crime as charged and sentenced to serve a period of not less than one year nor more than seven years in the Illinois State Penitentiary. The defendant argues on appeal that he was not proven guilty beyond a reasonable doubt.

Mrs. Darlene Eaves, the complaining witness, testified that on March 27, 1966, at about 10:00 p. m., she left home and walked East towards the bus stop at Fifth Avenue and Kenneth Street in the City of Chicago. Defendant, who was walking West on Fifth Avenue, approached her and asked her the direction of Harrison Street. After telling him, she continued on her way when the defendant grabbed her about the body, spun her around, placed a butcher knife against her stomach, and ordered her to walk with him. Defendant directed her into an alley North of Kenneth Street to a dark place between two buildings where he began taking off the complaining witness’s clothing. Both parties were standing up and the defendant held the knife on the complaining witness throughout the incident, although she begged defendant to put it away. Defendant did not succeed in having intercourse with the complaining witness but did ejaculate on her body. A resident of the building hollered at the commotion being raised below and the defendant ran away. The entire episode lasted about ten to fifteen minutes.

On cross-examination, the complaining witness testified that after the defendant ran away she went home, took a bath, ate a sandwich, and went to bed at approximately 10:30 p. m. The next morning she telephoned the police to report the incident and she gave the officers who came to her home a description of the man who attacked her. On April 3, 1966, while returning from a police lineup with Officer Stephens, the complaining witness recognized the defendant standing at the curb at Pulaski Road and Arthington Street and called out that there was the man who attempted to rape her. Officer Stephens stopped the car and the defendant began to run East on Arthington.

Officer William C. Stephens testified that on April 3, 1966, he was driving North on Pulaski Road in an unmarked police vehicle with Mrs. Eaves in the front seat. At Arthington Street Mrs. Eaves called out that a man standing at the curb was the one who attacked her. He stopped the vehicle immediately and at a distance of twenty to thirty feet saw a person dressed in a black topcoat and gray cap running toward Arthington. Stephens made a “U” turn, parked the car at the North curb of Arthington and Pulaski and got out of the car, but had lost sight of the fleeing man. A small boy in the vicinity of 3952 Arthington pointed toward the gangway of a building and Stephens returned to the car to radio for help. Upon returning to the building Stephens saw the defendant coming from the gangway and placed him under arrest. Defendant was not wearing the cap he had on when first observed by Stephens and when asked its whereabouts, defendant told Stephens it was behind a garbage can in the rear stairwell of the building. The cap was found in this exact place.

The defendant testified that on March 27, 1966, he left Walgreen’s Company, his employer, at 8:00 p. m. and arrived home at 9:00 p. m. At 9:30 p. m. he went to the store with his brother Donald and returned home at 10:10 p. m., where he remained for the balance of the evening. Defendant further testified that on April 3, 1966, he was walking to the comer of Arthington and Pulaski to catch a bus to go to work when a car passed him and then stopped suddenly. A man jumped out and told him to stand there, but defendant ran down Arthing-ton and turned into a gangway. Defendant stated he was wearing a cap at the time but lost it while running through the yard behind the building. A few moments later, defendant proceeded from the yard, through the gangway, to the front of the building when he was confronted with Officer Stephens. Stephens told defendant to get up against the police car and searched him. Defendant was ordered to get into the car with Mrs. Eaves, who acknowledged to Officer Stephens that this was the man who attacked her. At the trial, defendant stated he did not attack any woman on March 27, 1966.

After character witnesses testified in defendant’s behalf and closing arguments, the court made a finding of guilty and sentenced the defendant to serve a period of not less than one year nor more than seven years in the Illinois State Penitentiary. On appeal, the defendant contends he was not proven guilty beyond a reasonable doubt.

The defendant argues the State did not establish a prima facie case in that it failed to introduce evidence of nonmarriage between the defendant and the complaining witness. Upon a close inspection of the record we find that at no time did the defendant ever refer to Mrs. Eaves, the complaining witness, as being his wife, and the record reveals that defendant’s attorney addressed the complaining witness as “Mrs. Eaves,” as did Officer Stephens. The defendant himself referred to Mrs. Eaves as “this lady,” and never gave any indication Mrs. Eaves and he were husband and wife. At the close of the State’s evidence, no objection was made that Mrs. Eaves was defendant’s wife, nor in defendant’s motion for a new trial was it ever alleged that the State failed to prove the non-marriage of the defendant and the victim. We believe the contention made on appeal is frivolous, as Mrs. Eaves was not the wife of the defendant and a matter not objected to in the trial court cannot now be raised for the first time on appeal. People v. Brown, 3 Ill2d 623, 122 NE2d 153 (1955); People v. Fort, 14 Ill2d 491, 153 NE2d 26 (1959).

Defendant next argues that the conditions under which he was identified were doubtful and that there was insufficient evidence to uphold a conviction of attempted rape. The record reveals that Mrs. Eaves had two opportunities to view her attacker. First, when she was confronted by him on the street and he was asking for directions to Harrison Street, and then when he grabbed her and ordered her to go with him between the two buildings. Mrs. Eaves was inches away from her attacker when both were standing behind the buildings and the attempted rape took place. The episode lasted ten to fifteen minutes and during this time she had ample opportunity to view her assailant’s facial characteristics as well as his clothing. Mrs. Eaves testified that she gave the police a description of her attacker and that she recognized the defendant when she and Officer Stephens were returning from a police lineup. Mrs. Eaves was unshaken in her identification when the defendant was apprehended and at the trial. It is well settled that the testimony of one witness as to identification, if positive and the witness credible, is sufficient to sustain a conviction even though such testimony is contradicted by the accused. People v. Crenshaw, 15 Ill2d 458, 155 NE 599 (1959); People v. Robbins, 88 111 App2d 447, 232 NE2d 302 (1968). The sufficiency of the identification was for the trier of fact to determine, and this court will not reverse the conviction unless the testimony is so unsatisfactory as to leave reasonable doubt of the guilt of the accused. People v. Brengettsy, 25 Ill2d 228, 184 NE2d 849 (1962). There is no such doubt here, since the face-to-face encounters afforded Mrs. Eaves ample opportunity for a positive identification of the defendant. We believe that the testimony of Mrs. Eaves establishes that defendant possessed the intent to have intercourse with her by force and against her will.

Therefore, the judgment of the Circuit Court of Cook County, Criminal Division, is affirmed.

Judgment affirmed.

MURPHY and BURMAN, JJ., concur.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Lee Howard, Defendant-Appellant.
    Gen. No. 52,306.
    First District, First Division.
    June 23, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald P. Katz 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 Patrick T. Dris-coll, Jr., Assistant State’s Attorneys, of counsel), for ap-pellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a jury trial, defendant was found guilty of robbery. He was sentenced to the penitentiary for 2½ to 5 years. On appeal defendant contends (1) that he was not proved guilty beyond a reasonable doubt, and (2) that the prosecutor’s final argument to the jury was prejudicial and deprived defendant of a fair trial.

On October 15, 1966, at about 8:30 p. m., Charles Ross, the complaining witness, was on his way to a friend’s tavern at 63rd and Dorchester, Chicago, Illinois. He saw three men in a dimly lit vestibule and crossed over to the other side of the street. He heard footsteps behind him and turned around in the middle of the block and a man, identified by Ross in court as defendant Robert Lee Howard, came up to Ross and grabbed his sweater. The man, with his hand in his pocket, demanded money. Ross gave the man approximately $20. As this was happening the other two men whom Ross had noticed in the vestibule came over. One of the men made a gesture as though he was going to strike Ross and said, “Give him your wallet.” Ross gave the first man (the defendant) the wallet. It contained identification data, and it was returned to him. The three men then ran back in the direction from which they came.

Ross proceeded to the tavern, where he ordered a beer and stood by a window. He saw a police car and went out and stopped it. Ross testified he told the police about the robbery, and “I gave them the description that the-man was wearing a western leather jacket with fringes, front fringes, rear fringes, at the bottom, an Italian button down sweater, green tinted lens shades, and the man wore a process, had light colored trousers and black shoes, approximately five feet nine.” He gave no facial description.

Ross returned to the tavern and about an hour later the police returned with a young man in the squad car. Ross examined the man and his clothing and stated it was not the man who had robbed him.

Ross stayed in the tavern, looking out of the window, until about one o’clock in the morning, when he noticed defendant crossing the street. He recognized the jacket and followed defendant three or four yards, and when Ross “was sure that he was the man,” he pointed defendant out to two policemen in the area, who then arrested Howard. The arresting police officers were not the officers Ross had seen previously.

Ross was cross-examined at length about his identification of defendant, and his testimony included, “I know this man is Howard because the case has been continued for about six months, I should know him by now. Within six months I should have seen him enough times to know him when I see him again. The first time I seen him that was my first time seeing the man. When I pointed him out in court today, that wasn’t the first time I saw him. I saw him in court the number of times that it has been continued. I have had a good chance to look at him each time. I remember him from the night he robbed me. That’s the night I remember his face from. I hadn’t paid that much attention to the man in court. I didn’t look at him that carefully in court. I saw enough of him that particular night.” He further stated, “After I was sure it was the man that robbed me, I saw the policemen, they were walking their beat, I stopped them. . . . When I saw this man from the front I was certain, but I wanted to make sure, when I just saw the man’s face. He had the same dress. The tinted lens, the process, the jacket, but I wanted to make sure, more or less, .... After the three yards I stopped and reported to the cops. I explained to them what was happening and I went up and pointed the man out. These policemen were walking in the area that this boy was.” The policemen were in uniform, and when the policemen stopped defendant Ross said, “That’s the man that robbed me.” He further stated, “When they stopped Hr. Howard on the street he made a statement that he wasn’t the one, but he knew who had the money. He never said that he did it. He just said that he knew who did it.”

Marshall Harris, a police officer, testified that on October 16, 1966, he was on duty at approximately 12:30, checking taverns between 63rd and Dorchester and 63rd and Kenwood. He was on foot with his partner, Charles Harrison. He saw Ross and had a conversation with him, and following the conversation he placed defendant under arrest. His testimony included, “I recall what he was wearing at the time. He had a leather jacket, a sort of like a cowboy type with a fringe up the sleeve and around the bottom and across the back. There were also fringes on the back. He had fringes on the front of the jacket, across the chest. He did not have a hat. He had glasses on. They were tinted sunglasses. His hair was what is commonly known as a process. It had been slicked down and straightened.”

On cross-examination he stated he was told by Ross that he had reported the robbery earlier, but he did not know whether it had been reported or not, and he did not see any report of the occurrence by any other policeman. He further said there were two men with Howard on 63rd Street, and Ross did not identify either of the two men but he did identify Howard.

On redirect the officer said, “We had a conversation with Mr. Howard on 63rd Street. Present were Mr. Howard, Mr. Ross and my partner. I explained to him why I was placing him under arrest. I told him he was under arrest because Mr. Ross had identified him as the man who had just held him up. Mr. Howard said he didn’t know anything about it, and that he had just come out at the time.”

No evidence was offered on behalf of defendant.

Initially considered is defendant’s contention that he was not proved guilty of the crime of robbery beyond a reasonable doubt. Defendant asserts that Ross did not adequately view the face of the robber, and his identification testimony was based solely on the clothes worn by the man who had taken his money. Defendant argues that throughout the trial it was evident that Ross “was preoccupied with clothes to such an extent that rendered his identification of the defendant, as a perpetrator of the crime, questionable.”

Defendant also points out that Ross was able to describe the dress of the other two men, but his description was “totally devoid of any specific physical characteristic of these men. This is clearly brought out where the complainant is unable to state whether or not these men had a mustache.”

Defendant’s authorities include People v. Kincy, 72 Ill App2d 419, 219 NE2d 662 (1966), where the court reversed a single witness identification because the complaining witness identified the defendant only because of his jacket. There the court said (p 427):

“Where the conviction of a defendant rests upon identification which is doubtful, vague and uncertain, and which does not produce an abiding conviction of guilt, it will be reversed.”

Defendant also cites People v. Jones, 24 Ill2d 71, 179 NE2d 620 (1962), where it is said (p 74):

“The defendant argues that the identification of the defendant was based only upon the fact that he was wearing a light colored jacket and argues that this type of evidence is insufficient to establish defendant’s guilt beyond a reasonable doubt. The identification by Young is subject to this criticism and if his testimony were the only identification testimony in the record, we would not hesitate to reverse the judgment of conviction. However, even if his testimony is disregarded, there remains the positive testimony of the complaining witness that she clearly saw the defendant’s face at close range and that she recognized him by the freckles on his face, as well as by his clothing.”

Defendant also contends that complainant’s conduct subsequent to the alleged robbery was not consistent with one who had just been robbed, and “it seems highly unusual for one in the complainant’s position that moments after he had been robbed to enter a friend’s tavern, order a beer and then ten or fifteen minutes later inform the police of the crime. One who was robbed as the complainant described would have immediately telephoned the authorities.”

The State notes that Ross was face to face with the defendant for nearly three minutes at the scene of the robbery and later outside of the tavern. The State argues that the failure of Ross to describe defendant’s facial characteristics in detail did not render the identification less credible because in People v. Miller, 30 Ill2d 110, 113,195 NE2d 694 (1964), it is said:

“Precise accuracy in describing facial characteristics is unnecessary where an identification is positive.”

The authorities of the State include People v. Williamson, 78 Ill App2d 90, 95, 223 NE2d 453 (1966):

“The witness saw the robber and identified the defendant. The observation is the basis of his identification, and the specific characteristics contained in the testimony do not embrace the totality of the visual observation. Witnesses cannot be expected to testify to all the details which form the basis of their identification, but this does not make their testimony a conclusion or opinion in any legal sense. It is still testimony based on observation.”

In sum, we find the identification evidence was sufficient to support defendant’s conviction beyond a reasonable doubt. A determination of guilt by a jury will not be set aside by a reviewing court unless it is palpably contrary to the weight of the evidence or so unsatisfactory as to cause a reasonable doubt of guilt. (People v. Tribbett, 41 Ill2d 267, 272, 242 NE2d 249 (1968).) The in-court identification by Ross of the defendant as his assailant on October 15, 1966, was positive and unshaken on cross-examination. The competence and credibility of Ross, his conduct after the robbery and his description of the defendant were matters for the determination of the jury, and they believed Ross. The testimony of one witness alone, if it is positive and the witness is credible, is sufficient to convict. 30 Ill2d 110, 113.

Next considered is defendant’s contention that the final argument of the prosecutor to the jury deprived the defendant of a fair trial. The record shows that the prosecutor in his closing argument to the jury stated, “now I don’t know in rebuttal or in response to this what Mr. Bloom will say, I am not clairvoyant, but I strongly suspect that he will try to lead you down the garden path, as it were, and confuse you and take your mind and your eye off the main channel. Don’t be fooled.” Defendant contends the foregoing argument destroyed any chance of defendant’s final argument being favorably received by the jury. Defendant’s authorities include People v. Savage, 84 Ill App2d 73, 228 NE2d 215 (1967), where this court reversed and remanded defendant’s narcotic conviction because of the statements of the prosecutor in his opening and closing argument to the effect that the defense counsel was employing tactics to confuse the jury. Defendant cites People v. Romero, 36 Ill2d 315, 223 NE2d 121 (1967), where the court said (p 320):

“[W]e have often held, both in civil and criminal cases, that if ‘prejudicial arguments are made without objection of counsel or interference of the trial court to the extent that the parties litigant cannot receive a fair trial and the judicial process stand without deterioration, then upon review this court may consider such assignments of error, even though no objection was made and no ruling made or preserved in the trial court.’ ”

Remarks by a prosecutor reflecting on the role of the defense counsel are improper and tend to deprive the accused of a fair trial and should not be permitted. (People v. Freedman, 4 Ill2d 414, 422, 123 NE2d 317 (1954).) However, in our opinion the improper remarks here were of such a character that prejudice to the defendant was not the probable result, and the verdict should not be disturbed. People v. Berry, 18 Ill2d 453, 458, 165 NE2d 257 (1960).

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

Affirmed.

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