text:
    John Dziewatkowski, Plaintiff-Appellant, v. City of Chicago, a Municipal Corporation, et al., Defendants-Appellees.
    Gen. No. 52,003.
    First District, First Division.
    April 21, 1969.
    Rehearing denied May 29,1969.

      William Jakofsky, Paulson & Ketchum, of Chicago (H. Tim Hoffman and Thomas J. Mack, of counsel), for appellant.
    Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and RocLyne E. LaPorte, Assistant Corporation Counsel, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Plaintiff appeals from a jury verdict and judgment in favor of the defendant, City of Chicago, in plaintiff’s personal injury action for damages based on the alleged negligence of the defendant in the maintenance of its sidewalks. Other defendants were dismissed out of the case and are not involved here. On appeal, plaintiff asserts a prejudicial trial error and improper jury instructions.

In November or December, 1959, the defendant City dug up a parkway on Thomas Street to install a new lighting system and left a mound of clay and dirt on the parkway adjoining the sidewalk. On January 12, 1960, at about 7:15 p. m., after visiting a candy store on the northwest corner of Pulaski and Thomas, plaintiff started to walk west on Thomas. It was drizzling or raining lightly, and the sidewalk was wet. He fell in the middle of the sidewalk and injured his ankle. He was unable to get up, and his hands were wet and had clay on them. A passing stranger helped him into the store and from the store to plaintiff’s home. Plaintiff testified that the dirt on the parkway was close to and higher than the sidewalk, and the rain was washing it off. He saw no puddles on the parkway. The streetlights on the corner were dim, and there was “just a very little light.” He had lived in the area for several years prior to the occurrence and passed by this area two days before. He had never seen clay on the sidewalk at any time before the occurrence and did not know how it got there.

The owner of the candy store, Dorothy Wolff, testified that a mound of clay and dirt had been left on the parkway after the installation of a new lighting system. On January 12, 1960, plaintiff was helped into the store, and she wiped mud off his pants leg. The evening was foggy, and after plaintiff left she looked at the sidewalk and “the concrete was alright. It was covered with clay and mud.” She did not see the exact or actual place where plaintiff fell.

Arthur Gordon, defendant and owner of the building alongside of the sidewalk, testified that the parkway-had been dug up by the City to install electric lights on Thomas Street in November or December of 1959. The men were working in the parkway for approximately three days. They filled in the hole and, at his request, the men stamped down the earth, after which it was a little higher than the sidewalk. Each day after the men quit working, Gordon swept the sidewalks. He didn’t remember if he saw any clay on the sidewalk on January 12, 1960. He had never seen any water standing in puddles on the sidewalk after a rainfall.

Defendant’s witnesses included: (1) A City engineer and technician in charge of the sidewalk division of the Department of Streets and Sanitation, who testified at length as to the inspection and maintenance of the sidewalks and streets of Chicago. He said it would be virtually impossible for the sidewalk inspectors to cover their entire districts, but they did supervise the construction of new sidewalks and investigated public complaints. He had checked the records of the Street Department and found no complaint for the sidewalk in question on January 12, 1960. (2) John Ponzio, the person who helped plaintiff into the candy store, and who lived in the neighborhood, testified that on the night of the occurrence he was walking east on Thomas Street and passed a man who was walking west. He heard a sound and turned around and saw plaintiff down on the sidewalk. He helped plaintiff into the candy store, and he had no trouble in keeping his footing. It was a warm night, and he did not recall seeing any clods of dirt on the sidewalk in the immediate area where the plaintiff fell.

Upon stipulation, a U. S. weather report for January 11 and 12, 1960, was read into the record, and it showed record-breaking rains on the 11th and 12th.

Considered first is plaintiff’s contention that the jury was improperly instructed. At the outset defendant maintains that plaintiff failed to make specific objections to the questioned instructions at the conference on instructions, and that the instructions were improperly preserved in the record.

The record includes a transcript of two extended conferences between court and counsel in an effort to agree upon instructions to be given to the jury. Without further discussion we find that the instructions were finally made a proper part of the record for consideration on review. Also, we find that objections to the questioned instructions which plaintiff made during the conferences and in his motion for new trial were sufficiently specific to inform the trial court of their basis and to preserve them for review.

The first instruction of which plaintiff complains is instruction No. 16:

“You are instructed that the slipperiness of a sidewalk occasioned by rain or clay, not being accumulated so as to constitute an obstruction to travel, is not such a defect as will make a City liable for damage caused thereby.”

Plaintiff contends that the statement of law contained in this instruction was specifically rejected in Graham v. City of Chicago, 346 Ill 638, 178 NE 911 (1931). There the City was held liable for damages resulting from an overflow of water from the flooding of a skating rink and the court pointed out that liability must rest on the distinction as to whether or not the snow or ice causing the injury resulted from natural causes. On page 643, it is said:

“It is the generality of a situation resulting from natural causes that gives rise to the rule. Without that generality there would be no reason for the rule. There is no more cause for excusing a city from liability where damages have acerued from ice which has formed on a walk in an unnatural way, than there is to excuse it from damages when a walk has been permitted to become defective from any other cause. . . . The city’s liability did not arise from the mere flooding of the sidewalk, but from its neglect to remove the ice which had formed there in an artificial way and its omission to make the place reasonably safe after notice of the dangerous condition.”

And at page 644:

“Many cases have been cited which deal with ice formed on sidewalks by the freezing of water from down-spouts. In those cases it was not claimed that liability arose from diverting the flow of rainfall, but the charge of liability was made against the municipalities because ice had formed in an artificial and unnatural way and the city had neglected to make the condition reasonably safe.”

From Graham, plaintiff argues that “liability does not depend on whether or not an obstruction exists. The basis of liability is found in the distinction between slipperiness resulting from natural causes and slipperiness artificially created by a city’s negligence. This distinction between artificial and natural causes without regard to amount of accumulation was reaffirmed by the Illinois Supreme Court in Riccitelli v. Sternfeld, 1 Ill2d 133, 115 NE2d 288 (1953).”

Defendant argues that it must be determined if there was any evidence that the rain or clay was present on the sidewalk through artificial means, and that the evidence proved that on January 12, 1960, there was a record-breaking rainfall of 2.76 inches. Therefore, “any water that was on the sidewalk where the plaintiff fell was obviously the result of this record breaking rainfall and the city is not responsible for failure to anticipate a cloudburst and the havoc it wrought.” Defendant further argues that in the instant case it would seem to stretch the duty of the City beyond reasonable bounds to hold it liable in the instance where a record-breaking rainfall saturates dirt on a parkway, thereby converting it into mud which was carried upon the sidewalk by the rain just fallen, and “contrary to plaintiff’s allegation, there is no evidence in the record from which it could be concluded that the rain or the dirt was present on the sidewalk by artificial means.”

Plaintiff’s next complaint concerns instruction No. 19:

“The jury are instructed that if you find from the evidence that the accident was caused by the plaintiff slipping on account of the slippery condition of the sidewalk in question, and that said slipping was the proximate cause of the plaintiff’s injuries, if any, then you are instructed to find the defendant, City of Chicago, not guilty.”

Plaintiff argues that instruction No. 19 exempts the City from the duty of maintaining the sidewalks in a reasonably safe condition by excusing it from liability for injuries proximately caused by a slippery condition which “was artificially and negligently or wilfully caused by the city.” On instruction No. 19, plaintiff’s authorities include Hubbard v. City of Wood River, 244 Ill App 414 (1927), where the court affirmed a judgment for plaintiff for injuries received when he slipped on sidewalk ice resulting from water ejected from a city pipe. There the court said, at page 417:

“Some of the cases cited hold that a city may be held liable if the ice is in hillocks or ridges but not if it is smooth. It is difficult to perceive the justice of applying this distinction in case of ice formed from water cast upon the walk by artificial conditions. A conductor pipe casting water onto a walk where it will freeze must, of necessity, render the walk defective, and it would seem that it should make no difference in the liability of the municipality whether, at the particular time, the ice was smooth or rough, assuming that the condition was a dangerous one.” [Emphasis supplied.]

At page 418:

“This is not a case where all of the sidewalks of the city were icy because of freezing rain or snow. We cannot agree with those cases which hold that where water is cast upon a sidewalk, as in this case, and freezes, there may be a liability if it forms into hills or ridges but no liability if the ice so formed is smooth. In a case of the same general nature we held the city liable.”

Defendant argues that plaintiff cites a series of cases in which a plaintiff was awarded damages, but in each of those cases the defendant had artificially caused the dangerous icy condition. Defendant asserts that plaintiff presented no evidence that the slippery condition was artificially created by the defendant City, and “it is clear that instruction No. 19 was a correct statement of the law where the facts of the instant case disclosed that the presence of the rain and dirt was the result of natural causes, and where there was no evidence of notice to the City of the condition.”

The final instruction complained of by plaintiff is instruction No. 20:

“The law imposes upon cities the duty to exercise reasonable care to keep its streets and sidewalks in reasonably safe condition for use by persons travel-ling thereon, themselves exercising ordinary care for their own safety; the city is not an insurer against injuries received by reason of defects in its streets or sidewalks. If it maintains them in a reasonably safe condition, it is not liable, and, in this case, if you believe from all the facts and circumstances, shown by the evidence that the place where the plaintiff claims to have been injured, was in such condition for travel thereon, or thereover, that a person while in the exercise of ordinary care for his own safety, would have passed safely over, then the defendant is not liable in this case.”

Plaintiff argues that the jury was told that they must find for the defendant City if there was no defect in the sidewalk, as “the city is not an insurer against injuries received by reason of defects in its streets or sidewalks.” Plaintiff asserts there were no allegations in the complaint or answer or evidence which suggested “a defect in the sidewalk.” [Emphasis supplied.] Thus the jury was allowed to focus on an item not in issue. In support, plaintiff cites Welch v. New York, C. & St. L. R. Co., 5 Ill App2d 568,126 NE2d 165 (1955), at page 576:

“The peremptory instruction was properly refused, because there was no evidence upon which to base any conclusion that plaintiff failed to operate properly the hand brake. . . . Instructions must be based upon evidence.”

Plaintiff also cites Garvey v. Chicago Rys. Co., 339 Ill 276, 171 NE 271 (1930), where it is said (p 287):

‘Where an instruction selects one item of evidence, or one fact disclosed by the evidence, and states that a certain conclusion does not follow as a matter of law from that fact, it is calculated to mislead and confuse the jury. . . . The principles thus clearly laid down in these authorities constrain us to say that in the light of the facts of the present record the giving of instruction 35 was reversible error.”

As to instruction No. 20, defendant argues that it does not seem possible that the jury could understand the questioned portion—“the city is not an insurer against injuries received by reason of defects in its streets or sidewalks” [Emphasis supplied]—as a directive for defendant if no defect exists in the sidewalk. Defendant asserts that the jury was told that the City was not an insurer of or absolutely liable for injuries, but rather had a duty to maintain reasonably safe conditions.

In considering plaintiff’s contention that the three questioned instructions were prejudicially erroneous, we note that fundamentally they were peremptory instructions in character and to be considered within the guidelines set forth in Duffy v. Cortesi, 2 Ill2d 511, 119 NE2d 241 (1954), where it is said (p 515):

“The trend of judicial opinion reveals a reluctance to reverse cases on the ground of technical errors in instructions; hence, courts have reiterated that the instructions will be considered as a whole, and where the jury has not been misled, and the complaining party’s rights have not been prejudiced by minor irregularities, such errors will not be deemed grounds for reversal. . . . Where, however, the instruction is peremptory in character and directs a verdict for either party, it must necessarily contain all the facts and be complete within itself; it cannot be cured by any other instruction in the series. . . . Moreover, it is deemed harmful and serious error where a peremptory instruction assumes facts not in evidence, and incorrectly interprets the law.”

It is our conclusion, based upon the above discussed cases, that if a municipal corporation causes something to be done either on or adjacent to a sidewalk, which results in clay or some other material being washed onto the sidewalk so that it becomes slippery and consequently dangerous, even though the sidewalk has no defect in it, the situation is within the rule that the municipal corporation is liable for improper formations caused in “an artificial and unnatural way.” The liability of the City does not depend on evidence of “hillocks or ridges” or “an obstruction to travel.” Therefore, using these guidelines, we hold that the giving of instructions Nos. 16 and 19 was prejudicially erroneous. As to instruction No. 20, we find it prejudicially erroneous in this case because of the possibility that the jury might have considered literally the phrase “defects in its streets or sidewalks” and concluded that the defect must be “in” the sidewalk rather than an improper condition upon the sidewalk.

Plaintiff’s final contention is that the court prejudicially erred in admitting the testimony of defendant’s engineer and technician in charge of the sidewalk division. Plaintiff argues that the testimony as to 13,000 linear miles of sidewalks in Chicago and only six sidewalk inspectors, which showed that it was virtually impossible for the sidewalk inspectors to cover their districts, was not admissible as bearing on the degree of care required or bearing on the City’s notice of the dangerous condition. Plaintiff asserts that the evidence that the City had caused the work to be done on the parkway was unchallenged. Therefore, the defendant City had notice of the condition in which the work was left, and a municipal corporation which causes work to be done which could be dangerous to the public is bound to take notice of the condition in which it is left, whether safe or dangerous. Cited in support is City of Chicago v. Johnson, 53 Ill 91 (1869), where the court affirmed a judgment for a plaintiff when he fell into a ditch. There the court said no notice was necessary to the City authorities “as they caused the ditch to be made.” See, also, Code v. City of East St. Louis, 158 Ill App 494 (1910); Village of Jefferson v. Chapman, 127 Ill 438, 20 NE 38 (1889).

Plaintiff further argues that the admission of the testimony as to linear mileage and number of inspectors was clearly prejudicial to plaintiff, as a necessary implication to the jury of the admission of such testimony was that the standard of care required of the City may be less where there are so many sidewalks to be inspected by so few inspectors.

As to the testimony of defendant’s engineer, defendant contends that the question of whether the City had notice of the condition of the sidewalk prior to the occurrence was properly before the court, and that this testimony established that the City had no actual knowledge of the condition, either by inspection or public complaint.

We consider the testimony of the City engineer to have been prejudicially erroneous here. The statistics could have had some impact on the jury adverse to the plaintiff on the degree of care and diligence required of a City in keeping its sidewalks in a reasonably safe condition. We find that the City, having caused the work to be done on the parkway prior to the occurrence, had notice of the parkway’s condition and its proximity to the sidewalk.

For the reasons given, the judgment in favor of the defendant City of Chicago is reversed and the cause is remanded for a new trial consistent with the views expressed herein.

Reversed and remanded with directions.

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


source: Caselaw Access Project

author: MR. JUSTICE BURMAN

license: Public Domain

text:
    Blanche Ferguson, et al., Plaintiffs-Appellants, v. Edwin Zeman, et al., Defendants-Appellees.
    Gen. No. 52,115.
    First District, First Division.
    April 21,1969.

      Samuel A. LaSusa, of Chicago, for appellants.
    Vogel & Vogel, of Chicago (Robert C. Vogel and Conrad F. Floeter, of counsel), for appellees.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This is a personal injury action in which the plaintiffs appeal from a judgment entered on a verdict for the defendants. The trial court directed a verdict on the motion of the defendants, Edwin and Robert L. Zeman, at the conclusion of the plaintiffs’ case.

The record reveals that about 9:50 a. m. on September 26, 1959, Blanche Ferguson was driving in a westerly direction on Foster Avenue. She and the other two women plaintiffs were bound for work. Mrs. Ferguson stated that she travelled on Foster every day on her way to work and that she was often accompanied by the other two plaintiffs. Mrs. Ferguson also stated that though the weather was inclement (it was raining) the traffic was not too heavy and visibility was good at the time of the accident.

Mrs. Ferguson testified that as she approached Winthrop Avenue she was travelling 25 miles per hour. Traffic on Winthrop Avenue, she said, is controlled by stop signs when it crosses Foster Avenue. When she was two car lengths from the intersection of Foster and Winthrop, Mrs. Ferguson observed a southbound car on Winthrop. She said that when “I got near Winthrop, a lady cut across. It was a stop sign, but she didn’t stop, and she cut across in front of me, and to avoid hitting her I slowed down on my brakes. . . Mrs. Ferguson’s efforts to avoid the ear cutting in front of her were successful and her car never came in contact with the car whose driver had just run the stop sign. The next thing Mrs. Ferguson said she noticed after she had slowed down “was a bang in the back of the car.” When she got out of her car, Mrs. Ferguson testified, Edwin Zeman, the driver of the automobile that had just struck hers, asked “are you hurt” and when she said she was, he said “I’m sorry it happened. He was driving too close to me to stop at that particular time! ” She observed that the rear of her car was very badly damaged and that the front of Zeman’s car was so demolished that he could not drive it away. She and her passengers were taken to a hospital.

On cross-examination Mrs. Ferguson said that when the southbound car passed in front of her she slowed down to 5 miles per hour, that from the time she saw the car and felt the impact she had travelled about 3 or 4 feet and that at the time of impact her car was partly in the intersection. She also stated that after Zeman’s car bumped her car, almost immediately it bumped hers again. The second collision was the result of a third car, driven by Mr. Greenwood, colliding with Mr. Zeman’s car, which in turn struck the plaintiff’s automobile. (The defendants Glenn Greenwood and Harold Greenwood were dismissed by stipulation of the parties and are not involved in this appeal.)

Irene Gilbert, coplaintiff, testified that she sat in front with Mrs. Ferguson and that Elease Travis, the third person in the car, was sitting in the rear seat. She testified that Mrs. Ferguson slowed her car to avoid hitting a car going south on Winthrop when Zeman’s car hit them in the rear. Mrs. Travis testified that she was reading a paper and that the first indication she had that anything unusual was happening was when Zeman’s car hit them.

The plaintiffs’ complaint charged the defendants, in part, with failure to maintain a reasonable and careful lookout; carelessly and negligently causing a collision with Mrs. Ferguson’s automobile; failure to stop when danger to the plaintiffs was imminent; and failure to maintain a safe distance behind plaintiffs’ automobile.

The sole question on appeal is whether the trial court erred in directing a verdict for the defendants at the close of plaintiffs’ case. Verdicts ought to be directed only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, together with all reasonable inferences to be drawn therefrom, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. Larson v. Harris, 38 Ill2d 436, 231 NE2d 421; Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504.

It is the defendants’ contention that the court properly directed a verdict for the defendants, at the close of plaintiffs’ proof, because the plaintiffs failed to sustain their burden of proof. The defendants argue that there was no evidence or testimony regarding the conduct or the operation of the vehicle of the defendants as to lookout, speed, brakes, or safe distance.

We must agree with the defendants that the burden is upon the plaintiffs to prove by competent evidence, direct or circumstantial, that the defendants were guilty of negligence; the mere fact that an accident resulting in an injury to a person or in damage to property has occurred does not authorize a presumption or inference that the defendants were negligent. Rotche v. Buick Motor Co., 358 Ill 507, 193 NE 529. However, in Illinois, a driver approaching from the rear has a duty to keep a safe lookout and use every reasonable precaution to avoid a collision with the car ahead. He must take into account the prospect of being required to stop his car suddenly, particularly when approaching a street crossing. Barnash v. Rubovits, 46 Ill App2d 409, 197 NE2d 134. Indeed, it has been held that the driver of an automobile who does not maintain a proper lookout for traffic ahead is negligent. Conner v. McGrew, 32 Ill App 2d 214, 177 NE2d 417.

Applying these rules to the present appeal, we are of the opinion that the trial court improperly directed a verdict for the defendants. The evidence most favorable to the plaintiffs and without contradiction shows that Mrs. Ferguson applied her brakes to decrease the speed of her car in order to avoid striking another car crossing in front of her and which had gone through a stop sign. She had sufficient control of her car to avoid colliding with this vehicle. The defendant who was driving behind her was unable to stop his car and avoid striking the plaintiffs’ car. In our opinion, if no other evidence is offered, the jury could find from the evidence together with all reasonable inferences drawn therefrom that the defendants were negligently following too closely and failed to keep a proper lookout.

The following two cases reinforce our belief that the trial court erred by directing a verdict for the defendants: Moss v. Wagner, 27 Ill2d 551, 190 NE2d 305; Sughero v. Jewel Tea Co., 66 Ill App2d 353, 214 NE2d 512 affd 37 Ill2d 240, 226 NE2d 28. In Moss the plaintiff testified that by the time her vehicle was in the center of the intersection the other car was practically on top of her. The Supreme Court in reversing a judgment for the defendant notwithstanding the verdict stated that sufficient evidence was introduced to present a question of fact for the jury as to whether the defendant drove his car into the intersection without properly observing the through traffic and without yielding the right of way to the plaintiff who was travelling on a protected street. The defendant did not take the witness stand himself or present any witness in his own behalf or in contradiction to plaintiff’s testimony. There too there was no evidence of what the defendant did immediately before the collision. The Court held, as we do here, that there was substantive evidence of negligence “and if there were any facts that would justify the defendant’s conduct it was incumbent upon him to present them.” Moss v. Wagner, 27 Ill2d 551, 556, 190 NE2d 305, 307 (emphasis ours).

In the second case, Sughero v. Jewel Tea Co., we upheld a directed verdict on the issue of liability. There the defendant’s truck driver applied his brakes because cars in front of him stopped abruptly. He skidded on wet asphalt into plaintiff’s lane causing a collision. We adopted the conclusion in Murphy v. Kumler, 344 Ill App 287, 100 NE2d 660, which stated that:

Certainly it is not incumbent upon the plaintiff to show conclusively why the defendant was on the wrong side of the road or the exact cause of the skid. Only on rare instances would that knowledge be possessed by the plaintiff. ... In a collision such as this, where one of the cars is on the wrong side of the highway and out of control, certainly it is the duty of the defendant to show that he was in that situation because of some particular reason other than his own negligence.

Sughero v. Jewel Tea Co., 66 Ill App2d 353, 362-363, 214 NE2d 512, 517. We can discover no good reason why the above rule should not apply to the instant case.

In the circumstances in the case at bar, it is not incumbent upon the plaintiffs to show conclusively why the defendants’ automobile struck their car in the rear. Only on rare instances will that knowledge be possessed by the plaintiff. We hold that there was adequate evidence to present a factual question to the jury. It was improper for the trial judge to take the case away from the jury and direct a verdict for the defendant.

The judgment of the Circuit Court is reversed and the cause is remanded for a new trial.

Reversed and remanded.

ADESKO, P. J. and MURPHY, J., concur.

       The defendants’ answer to the complaint admitted that defendant Edwin Zeman was driving the vehicle, owned by defendant Robert Zeman, that struck the Ferguson car from the rear.


author: MR. PRESIDING JUSTICE ADESKO

text:
    Beverle Marcus, Plaintiff-Appellee, v. Stanley A. Marcus, Defendant-Appellant.
    Gen. Nos. 52,708, 52,728. (Consolidated.)
    First District, First Division.
    April 21, 1969.

      Jerome Berkson, of Chicago, for appellant.
    Bernard Kaufman, Paul C. Ross, and Meyer Weinberg, of Chicago (Harry G. Fins and Meyer Weinberg, of counsel) , for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

Plaintiff and defendant were divorced on December 12, 1957. Custody of their minor son, Jeffrey, then aged 3 years, was given to the mother, Beverle Marcus. She remarried twice thereafter. Her second husband died. Subsequently she married a Mr. Tickman, with whom she had two children. Jeffrey appeared to have some emotional problems which caused Judge Robert L. Hunter to appoint Dr. Seymour R. Steinhorn, acceptable to both parents, to examine him. The boy stayed away from his mother’s home and expressed a preference to stay with the father or Ruth Marcus, his paternal grandmother.

The mother presented a petition for an increase of child support and for her attorney’s fees. The father countered with a cross petition for custody of the child, which was denied by the court. On July 7, 1967, Judge Robert L. Massey ordered the Sheriff of Cook County to place Jeffrey in the Audy Home, a juvenile detention home, after the boy ran away from his mother’s home. On July 14, 1967, the decree of divorce was modified by Judge Massey by placing legal custody, care and supervision of Jeffrey with Ruth Marcus, the paternal grandmother. No appeal was taken from this order.

On July 21, 1967, Beverle Marcus, hereinafter referred to as Beverle Tickman, filed a petition, without notice to the defendant or his counsel, in the office of the Clerk of the Court for a rehearing of the July 14,1967, order.

On August 8,1967, Bernard B. Rinella, the guardian ad litem previously appointed by the court to represent the boy, received a letter from Robert Hoffman, a unit director of the R. McCormick Chicago Boys’ Club, which Jeffrey attended, addressed “To Whom It May Concern.” The letter described Jeffrey to be a boy who is spoiled, dislikes taking orders, is a cry baby, has a superior attitude and is a smart aleck. Similar information was sent to one of the attorneys for the mother. The guardian ad litem mentioned the letter to Judge Massey but took no further action until he talked to Robert Hoffman on October 19,1967, in Judge Massey’s Court. This information was not given to Ruth Marcus, Stanley Marcus or their attorney who demanded that said information be presented to the court by written petition. No such petition was ever presented. Judge Massey then granted a rehearing of Beverle Tickman’s petition of July 21, 1967, almost 90 days after said petition was filed in the Clerk’s office.

Judge Massey heard several witnesses and personally talked to Jeffrey. There was no petition to vacate the July 14 order. There was no evidence of unfitness of Ruth Marcus to have custody of Jeffrey. She did not carry out the court’s directive to arrange for psychiatric treatment for the boy, but in her opinion the boy did not need such treatment and was doing well at school and at home under her supervision.

On November 24, 1967, Judge Massey announced in open court that Jeffrey be sent to St. John’s Military Academy and directed the guardian ad litem to procure a transfer of his grades from Lake View High School to St. John’s Military Academy and arrange for an interview with the boy at St. John’s. The following discourse then took place:

“MR. BERKSON: May I answer this ?
“THE COURT: That would be the Court’s finding. That would be the Court’s order, and at this point, if we can get the co-operation of the mother and father to see this boy gets out there as early as possible, he probably can start the new semester.
“MR. BERKSON: May I now answer this Court? This Court is not making a recommendation he go to St. John’s ?
“THE COURT: This Court is making an order.
“MR. BERKSON: An order. I don’t want to minimize it in any way. I want something that is final so I can take it from that step further.
“MR. ROSS: May I say--
“MR. BERKSON: May I finish ?
“MR. ROSS: I just want to make a suggestion. You are not going to make closing--
“MR. BERKSON: What says you can make a suggestion?
“THE COURT: I think the Court made the order.
“MR. BERKSON: Would the Court set an appeal bond, if the Court please?
“MR. ROSS: May I just suggest to the Court--
“MR. BERKSON: May I have an answer, for legally, what I can advise my client--
“THE COURT: You can proceed in accordance
“MR. BERKSON: I am asking the Court to set an appeal bond. Does the Court refuse ?”

Shortly thereafter the Judge said:

“The Court expects it will retain jurisdiction to comply with this order, and I am asking the guardian to first get the transcript, and two, to see that when the transcript is mailed to St. John’s or sent out there, and a reply is sent back, he is ready for an interview or whatever the necessary step is, and it be followed, and then the boy will be delivered out there, and if the boy is not delivered out there to report back to this Court and the guardian will and the Court will take the necessary action to see this order is complied with.”

The Judge then spoke to the boy and the following colloquy took place:

“THE COURT: Jeffrey, the Court has talked to you before and has talked to you on different occasions, I believe, and today again after going through this matter and talking to you some couple of weeks ago and getting your vision of what you feel, believes that it would be to your best interests to be enrolled in the St. John’s Military Academy, which is a fine school, the kind of school that I would want my own son to go to, and I am asking today that you go out there and make arrangements to become enrolled in that school and talk to the director and the secretary and whoever might be in charge so that you can examine the surroundings and let them show you what they have, and what you can expect out there, and if you would go out there with your mother today.
“JEFFREY MARCUS: I won’t go out there with her and I won’t be with her.
“THE COURT: If you don’t go out there, Jeffrey, I am going to have to ask the Sheriff’s Office to send up some deputies to take you.
“JEFFREY MARCUS: I will not go. Please don’t make me.
“THE COURT: It would be to your best--
“JEFFREY MARCUS: I will not go. I don’t want to go out there and look at it. I want to stay with my father.
“MR. BERKSON: We are entitled to have an order which I can take to the Appellate Court. If you are going to enter an order that he be taken to school, then we are entitled to have an order so we have something—we can base something on.
“THE COURT: That will be the Court’s order.
“MR. BERKSON: What is the order ?
“THE COURT: He will go to St. John’s School. Take him out there.
“MR. BERKSON: Will you set an appeal bond, if the Court please?
“THE COURT: We will get a transcript of the record of his grades and send them out there and some provision will be made as to when he can be enrolled, and I am going to ask you to co-operate.
“JEFFREY MARCUS: I will not go.
“THE COURT: We will have to get a couple of Sheriff’s--
“MR. WEINBERG: I asked leave to file an amended petition to--for the order--approve —
“MR. BERKSON: Where will the boy go?
“THE COURT: There is visitation today anyway.
“MR. BERKSON: Visitation? If the Court please, I suggest--
“THE COURT: I suggest maybe you call the school. See if they can take him out.
“MR. BERKSON: I would like to know what order, --1 am going to tell you now--
“THE COURT: I told you what my order is.
“MR. WEINBERG: I will prepare an order in due course.
“MR. BERKSON: Filing an order in due course? I want to present an order at 2:00--
“MR. WEINBERG: I will present--
“MR. BERKSON: That is the point. They are trying to subvert your order. We will be back here on Monday. This boy does not have to go anyplace.
“THE COURT: Order in the Court or someone will be held in contempt.
“MR. BERKSON: Mr. Marcus, please--
“THE BAILIFF: You don’t scare me, sir.
“THE COURT: Unless you control your client
“JEFFREY MARCUS: I refuse to go out there. I won’t go out there.
“THE COURT: Prepare the order by Monday.
“MR. BERKSON: There should be a status quo at this time.”

On November 27,1967, no written order was presented to the court. The boy was taken to St. John’s Military Academy but refused to stay there. The court continued the matter to December 1, 1967. Defendant then filed his notice of appeal to this court. The First Division of the First District of the Appellate Court, on December 6, 1967, after considering appellant’s motion for supersedeas and to set and approve an appeal bond and the appellee’s motion to dismiss appeal for lack of an appeal-able order, instructed appellant to secure and file in the Appellate Court, the order of the trial court from which he seeks an appeal. On January 4, 1968, the trial court entered the following order:

“IT IS THEREFORE ORDERED:
“A. That BEVERLE MARCUS, now known as BEVERLE TICKMAN, who has legal custody of JEFFREY MARCUS, be and is hereby granted leave to enroll JEFFREY MARCUS, child of the parties, in the St. John’s Military Academy, which enrollment is necessary to the welfare of the boy.
“B. That the Guardian ad Litem, BERNARD RINELLA, shall arrange with the said school that monthly reports as to his progress be made to this Court.
“C. That neither STANLEY A. MARCUS or BEVERLE MARCUS TICKMAN, the father and mother of the child, shall visit the boy at the said school until further Order of this Court.
“D. That the nature of the enrollment of the boy in the said school and his continued residence at school selected shall be reviewed and reconsidered and hearing had thereupon at the end of the next semester within the program of the said school.
“E. That the prior pending petitions and matters as to payment fees for counsel for BEVERLE MARCUS TICKMAN, fees for BERNARD RINELLA, Guardian ad Litem, unpaid bills for Dr. Seymour Steinhorn, are all continued generally until further order of this Court.
“This Court believed when it continued the matter on November 24, 1967, and thereafter, and still believes, that further evidence should be taken by the Court as to the enrollment of JEFFREY MARCUS, child of the parties, in a private school with psychological and psychiatric facilities for him because a final determination of the issue in this cause so germaine to his welfare so demand it. However, this Court having been advised that the Appellate Court, First District, First Division, has instructed counsel to inform this Court to enter an Order, enters this Order in obedience to the directions of the Appellate Court and not of its own volition.”

The said order of January 4,1968, on motion of the appellant was included in the record herein on appeal by way of an amended notice of appeal.

Courts are primarily concerned with the welfare of a child in legal controversies involving custody of children. The record in this case reveals that the trial judge had the best interest of Jeffrey uppermost in his mind. However, in spite of this motivation, the court must follow established and accepted rules in dealing with the instant situation. The July 14, 1967, order placed Jeffrey’s custody with his paternal grandmother, under whose supervision the boy was attending school and was adjusting to a new environment. The Beverle Marcus’ petition for rehearing of the July 14th order was filed in the Clerk’s office, without notice to counsel for Stanley Marcus. Therefore, no answer to the petition was filed and such petition was not set for hearing. Consequently, the issues raised in that petition have not been adjudicated by the court. The order of July 14th was not vacated, nor was the relief prayed for granted.

Upon careful scrutiny and consideration of the record before us, we are of the opinion the evidence presented to the court was insufficient to warrant a change of custody of Jeffrey from his paternal grandmother, Ruth Marcus. After a divorce decree in this State, the custody of children is always subject to the order of the court which entered the decree, and such decree may be changed from time to time as the best interests of the children demand. It is true the trial court is given a large discretion in awarding custody of minor children. However, such discretion is a judicial one and is not unlimited; it is subject to review. Cohn v. Scott, 231 Ill 556, 83 NE 191 (1908). Upon the testimony of Mr. Hoffman, the camp counselor, as to what he observed at the Morse Avenue Beach, and the testimony of Mr. Rinella and Mr. Weinberg (Jeffrey’s guardian ad litem, and Beverle Marcus Tickman’s counsel), the trial court concluded Jeffrey would be enrolled in St. John’s Military Academy, and this conclusion was apparently based upon the suggestion of the plaintiff, Beverle Marcus Tickman. The other evidence relating to Jeffrey’s alleged need for psychiatric help consisted of the testimony of Dr. Stein-horn. His only contact with Jeffrey was a fifty-minute examination in November, 1966, (a year prior to the incident on the beach) and his impression from this examination of Jeffrey was that Jeffrey was seriously disturbed and definitely in need of psychiatric treatment. In Vysoky v. Vysoky, 85 Ill App2d 306, 230 NE2d 3 (1967), the court held that a party seeking to alter the custody provisions of a decree has the burden of proving that the child’s best interests require such a change. In the instant case, there was no evidence of Ruth Marcus’s unfitness to have custody of Jeffery, and there was no showing of a substantial change in conditions warranting a modification of the custody decree.

We agree the trial court was not bound by Jeffrey’s preference in the choice of custody the trial court was to determine. Stickler v. Stickler, 57 Ill App2d 286, 206 NE2d 720 (1965); Strouse v. Strouse, 75 Ill App2d 362, 220 NE2d 485 (1967). Nevertheless, we believe the positive refusal of Jeffrey, a young man of fourteen years of age, to go to St. John’s Military Academy should not have been ignored by the trial court. His absolute refusal to live with his mother, Beverle Marcus, and his stated preference to remain with Ruth Marcus, his paternal grandmother, was certainly entitled to serious consideration by the trial court. Stickler v. Stickler, supra; Strouse v. Strouse, supra. We do not infer that the court should have decided this issue solely upon the wishes or preference of Jeffrey; rather, the adamant refusal to attend a miltary school, or to have any contact with his mother, should have indicated to the court that Jeffrey’s best interests and welfare were not to be “best served” by following that course of action.

In view of our holding, the question of Beverle Marcus’ December 7, 1967, petition for an attachment to produce Jeffrey Marcus before Judge Massey, because of Ruth Marcus’ success in regaining physical custody of Jeffrey by virtue of a Writ of Habeaus Corpus issued by the Circuit Court on December 6, 1967, has become moot, and we express no opinion upon such question arising from the above actions of the parties involved. Such cause was docketed in this court as cause No. 52728, and upon motion of the appellant, was later consolidated with cause No. 52708.

For the foregoing reasons, the orders of the trial court dated November 24, 1967, and January 4, 1968, are reversed.

Decree reversed.

MURPHY and BURMAN, JJ., concur.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John J. Torello, Defendant-Appellant.
    Gen. No. 52,850.
    First District, First Division.
    April 21, 1969.
    Rehearing denied May 19,1969.

      Samuel Y. P. Banks, and Anna R. Lavin, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a 2-count indictment, defendant, John J. Torello, Michael LaJoy and Joseph D’Argento were charged with “theft” and “criminal trespass to vehicle.” On June 29, 1966, D’Argento pleaded guilty. In August 1967, a jury found Torello and LaJoy guilty of both charges. They were each sentenced to terms of two to five years on the theft count and two to five years on the trespass count. The instant appeal was perfected by Torello only.

On appeal, defendant Torello’s contentions are: (1) Count I fails to charge a crime; (2) the record was deliberately permeated with evidence distinct and entirely unrelated to the charges brought to the intentional prejudice of the defense; (3) reversible error was committed in denying to defendant a prior statement of the State’s principal witness; (4) the State failed to prove this defendant guilty beyond reasonable doubt; and (5) the court erred in its instructions to the jury and in failing to instruct as requested by the defense.

Count I of the indictment alleges that on May 2, 1965, the three defendants “committed the offense of theft, in that they, knowingly obtained unauthorized control over an automobile, of the value of more than one hundred fifty dollars, the property of Thomas Vana, intending to deprive said Thomas Vana permanently of the use and benefit of said property, in violation of Chapter 38, Section 16, (a) [sic], of the Illinois Revised Statutes 1963.” Count II charged defendants with “the offense of criminal trespass to vehicle, in that they, knowingly and without authority entered a vehicle, to wit: an automobile, the property of Thomas Vana, and without the consent of said Thomas Vana, in violation of Chapter 38, Section 21-2, of the Illinois Revised Statutes 1963.”

The testimony for the State shows that an automobile belonging to Thomas Vana was stolen on the evening of May 2, 1965. He made an auto theft report at about 9:45 p. m. Shortly thereafter, Police Officer Nissen, a member of the City of Northlake Police Department, observed a parked car with a man looking out the back window—“He had a cloth over his face. As I pulled up behind the car, the car proceeded to drive away from me. I was driving a marked squad car.” He put the red light on. By police radio, he reported to the Northlake police station that he was following a car—“there were three subjects in the car and two of them masked.” He continued pursuing the car at speeds which varied between 50 and 80 miles per hour. After an extended pursuit, participated in by the Melrose Park police, the car being pursued stopped against a curb, and Nissen fired four shots into the car. Nissen ran over to the side of the car and informed the parties they were under arrest. As he opened the door of the car, Torello fell from the driver’s seat.

Yana testified that he did not know D’Argento, Torello nor LaJoy, nor did he give them authority to take custody of his car.

The only witness for the defense was D’Argento, who testified that he had stolen Vana’s car without the knowledge of either Torello or LaJoy. He was carrying a gun in his belt and put the gun under the passenger’s seat. Later he met Torello and LaJoy, and he asked Torello to drive because he wanted to discuss business with LaJoy. While they were parked on a side street a police car pulled up and flashed a light. D’Argento told Torello to take off and get going because it was a stolen car, and if he (D’Argento) was arrested, he would lose his appeal bond (for a federal offense) and would have to go to jail.

D’Argento further testified that while he was in the car, no one had hoods over their heads nor was there any cloth covering on anyone’s face. No one threw anything out of the automobile during the chase. “At first Torello did not want to go, then I reached down and got my gun and told him it was a stolen car. I pulled it out like this and told him to get going. I had the gun in my hand.” He had pleaded guilty “to this particular charge before Judge White” and received a sentence of ten years.

Defendant Torello was found guilty in two separate jury verdicts of theft and of criminal trespass to vehicle, and the court entered judgment on both verdicts.

Considered first is defendant’s contention that Count I fails to charge a crime. Count I was the “theft” charge. After relating the essential elements of the crime of theft, Count I included “Chapter 38, Section 16(a), of the Illinois Revised Statutes 1963.” Before the commencement of the trial, the court denied defendant’s motion to dismiss the indictment because there was no section 16 (a) in the Criminal Code of Illinois. Leave was granted to the State to insert “ ‘dash 1/ after the 16,” so that after amendment the section alleged to be violated was designated as “Section 16-1 (a)” instead of “Section 16(a).”

We find no merit in defendant’s contention as to Count I. In this case the incomplete numerical designation of the section violated was a formal defect which could be corrected under the provisions of section 111-5 (c 38), entitled “Formal Defects in a Charge.” Defendant was not prejudiced by the section number amendment because Count I alleged all of the essential elements of the offense of theft, as stated in section 16-1 (a), and “so far particularize [d] the offense” so that defendant was apprised with reasonable certainty of the precise offense with which he was charged. See People v. Gold, 38 Ill2d 510, 516, 232 NE2d 702 (1967); People v. Hall, 55 Ill App2d 255, 204 NE2d 473 (1964).

Considered next is defendant’s contention that the only real issue in this case as to him was whether he had knowledge that the Ford was stolen—“That, and that alone, was all the jury was to decide. That issue was obscured to the point of obliteration by the State’s misconduct in the introduction of the prejudicial evidence.”

Prior to the trial the defense was given a list of physical evidence that the State intended to introduce. On the list were three pistols and two cloth masks. After a hearing about the propriety of the intended proof, the court ruled that “even though they may be evidence of another crime, if they are properly part of this case, then they are evidence in this case.”

During the trial, frequent reference was made to the masks and guns by the officers who participated in the chase and subsequent investigation.

Officer Nissen testified that when he began the chase he noticed that the man in the back seat and the one on the passenger’s side were masked; that an object was thrown from the passenger’s side during the chase, and when he returned to the approximate vicinity three and one-half hours later, he found a snow mask. He further testified that when the Ford stopped after going out of control, the passenger in the front seat displayed a gun, which he dropped into the back seat, and that he (Nissen) found a .357 magnum in the back seat.

For the State, a nurse’s aide testified that it was she who admitted defendant Torello to the 4th floor at West-lake Hospital for treatment for head and leg bullet wounds after the arrest. She said that when she undertook to examine and inventory defendant’s clothing and valuables, she found a mask.

State’s witness Police Sergeant James Diaferia testified that he went to the receiving room at the hospital and was given a mask by someone; also, at about 10:15 p. m. on May 2, he had a conversation with two unidentified women, and then went 30 or 40 feet south from the point of arrest and picked up a loaded gun, a .357 loaded magnum.

The People’s exhibits, admitted into evidence over defendant’s objection, included Exhibit 4, the mask which was found on the street by Officers McKenzie and Nissen; Exhibit 5, a .357 magnum identified by Officer Nissen as the pistol that was dropped into the back seat of the car by D’Argento; and Exhibit 7, the mask identified by the nurse’s aide.

Defendant’s authorities on this point include People v. Donaldson, 8 Ill2d 510, 134 NE2d 776 (1956); People v. Hexum, 83 Ill App2d 192, 226 NE2d 877 (1967); and People v. Doyle, 76 Ill App2d 302, 222 NE2d 205 (1966). In Donaldson, it is said (p 517):

“Evidence which tends to show that an accused has committed crimes or acts of misconduct which are distinct and entirely unrelated to the one for which he is being tried is both incompetent and prejudicial.”

As knowledge on the part of defendant Torello that he was driving a stolen car was an essential element here, we believe the testimony as to the guns and masks and their admission into evidence was proper. As argued by the State, this evidence was admissible as part of a direct narrative of the circumstances surrounding the arrest of Torello. See People v. Alexander, 69 Ill App2d 27, 216 NE2d 180 (1966). Also, we consider the evidence to be within the guidelines of People v. Allen, 17 Ill2d 55, 63, 160 NE2d 818 (1959) :

“The test of admissibility of evidence is whether it fairly tends to prove the particular offense charged and any circumstances may be put in evidence which tend to make the proposition at issue either more or less probable.”

We think a jury might have reasonably found from this evidence that Torello knew the car he was driving was stolen. We find no error here.

Considered next is defendant’s contention that reversible error was committed in denying to defendant a typewritten summarization of Nissen’s testimony before the Grand Jury, referred to as “a thumbnail sketch.” Defendant sought to examine this statement for impeachment purposes during Nissen’s cross-examination. Out of the presence of the jury, the State tendered the statement to the trial judge for “in camera” inspection. The judge read the statement and stated to the attorneys that he found “absolutely nothing inconsistent in his Grand Jury testimony or the so-called Prep statement . . . that can possibly be used as a basis for impeachment.” The judge ruled that he would let the defendant see the statement but would not let it be used for impeachment purposes. The defense refused to examine it, and the court sustained the State’s objection to its production.

Defendant argues that the prosecution is required to furnish on demand to defendant, for impeachment purposes, specific statements in its possession made by State’s witness, which have been established to exist and which are in the witness’s words or substantially verbatim. Authorities include People v. Neiman, 30 Ill2d 393,197 NE2d 8 (1964).

The State argued that the statement was not substantially the language of Nissen, and the defense had been furnished the full transcript of Nissen’s testimony before the Grand Jury for impeachment purposes, if any impeaching material was contained therein. The State noted that this was a preparation sheet in the nature of the work product of the office of the State’s Attorney, and it would be unfair and improper to take these preparation sheets and compel a witness to stand for impeachment on them for some inconsistency which might exist between that witness at the trial and what had been verbally sketched out on the sheet by another person. We find no error here. It is clear that the statement was a summarization of Nissen’s Grand Jury testimony, not prepared by him and not in his language. See People v. Neiman, 30 Ill2d 393, 397, 197 NE2d 8 (1964):

“The law is well settled that the prosecution is required to furnish on demand to the defendant for impeachment purposes specific statements in its possession made by a State’s witness, which have been established to exist and which are in the witnesses’ own words or substantially verbatim.”

Defendant next contends that he was not proved guilty beyond a reasonable doubt. Defendant argues that “mere presence at the scene of a crime is insufficient to establish guilt.” (People v. Boyd, 17 Ill2d 321, 327, 161 NE2d 311 (1959).) Flight, “standing alone . . . will not sustain the guilty finding”—“something must be brought in to sustain knowledge before flight takes on any significance.” Defendant cites Embree v. United States, 320 F2d 666, 668 (9th Cir, 1963), where it is said:

“Perhaps Embree’s flight tends, circumstantially, to prove that he was guilty of some crime. But since there is nothing in the record to indicate that he was informed, before his attempted flight, that he was being sought in connection with the offenses involved in this case, such flight does not constitute an admission, or other evidence, that he is guilty of those crimes.”

We find no merit in this contention. The record clearly shows that defendant was the driver of a stolen car, and he was arrested after a long and speedy chase. Masks and guns were found either in the car or under circumstances which clearly connected them with defendant. The jury saw and heard the various witnesses who testified, and it was their function to determine the relative weight and credibility of the testimony of each of those witnesses. The jury chose not to believe D’Argento’s testimony that Torello did not know that the car was stolen, and that he forced Torello to drive the car in an effort to escape the arrest. There was ample evidence to support the verdict and to establish defendant’s guilt beyond a reasonable doubt. In People v. Novotny, 41 Ill2d 401, 244 NE2d 182 (1968), it is said (pp 411-12):

“We have recently stated: ‘When the trier of facts renders a decision based upon credible and substantial evidence which is sufficient to convict, that verdict is not subject to question on review merely because the judge or jury chose to believe the consistent testimony presented by the State. . . .’ It is neither the duty nor the privilege of a reviewing court to substitute its judgment as to the weight of disputed evidence or the credibility of witnesses for that of the trier of fact who heard the evidence presented and observed the demeanor of the witnesses . . . ; and we will not reverse a criminal conviction where the evidence is not so improbable as to raise a reasonable doubt of guilt.”

Next considered is defendant’s contention that the Circuit Court erred in instructing the jury and improperly refused defendant’s instructions on want of knowledge and flight. The defendant states that his defense was a want of knowledge by him that he was in a stolen car, and an explanation of his flight which followed his reluctance to flee when an armed man told him to “get going.”

We have examined all of the instructions given to the jury, which included a number of instructions offered by both defendants. An extended discussion on the refused instructions is unnecessary. We find the jury was adequately instructed on both counts—theft of an auto and criminal trespass to vehicle—and on all issues including defendant’s knowledge that the car was a stolen vehicle and his flight. We find no error here.

Finally considered is a contention initially raised by defendant in his reply brief. Defendant states: “On careful review of the abstract in this case, it appears that the defendant Torello was convicted of the crime of criminal trespass to a vehicle on which he was sentenced to a period of two to five years. This fact escaped appellate counsel on the first reading. Criminal trespass to a vehicle is defined in Chapter 38, Section 21-2 and carries a sentence not to exceed one year in a nonpenitentiary institution. The sentence imposed herein is, therefore, illegal.”

The record shows that defendant’s notice of appeal referred only to “theft, in violation of Chapter 38, Section 16(a) of the Illinois Revised Statutes” (Count I). Also, the record does not show any order or direction that the sentences for “theft” and “criminal trespass to vehicle” be served concurrently. The briefs and contentions of both sides are primarily centered on the “theft” conviction.

In view of the appeal record, it might be questioned whether this court may properly consider defendant’s conviction and sentence for “criminal trespass to vehicle.” However, we believe that Supreme Court Rule 615 is sufficient authority for this court to review the “criminal trespass to vehicle” conviction because substantial rights of the defendant are affected. In People v. McKinstray, 30 Ill2d 611, 616, 198 NE2d 829 (1964), it is said:

“The court may, as a matter of grace, in a case involving deprivation of life or liberty, take notice of errors appearing on the record which deprived the accused of substantial means of enjoying a fair and impartial trial, although no exceptions were preserved or the question is imperfectly presented.”

See, also, People v. Bradley, 30 Ill2d 597, 601, 198 NE2d 809 (1964).

In our opinion, defendant’s convictions for “theft” and for “criminal trespass to vehicle” are based upon a single act, and only one sentence should have been imposed and that sentence should have been for the greater offense, in this case the offense of “theft.” (People v. Duszkewycz, 27 Ill2d 257, 261, 189 NE2d 299 (1963).) Therefore, the sentence imposed on the charge of “criminal trespass to vehicle” should be set aside.

For the reasons given, the judgment and sentence of the Circuit Court of Cook County upon Count I of the indictment charging “theft” is affirmed, and its judgment upon Count II charging “criminal trespass to vehicle” is reversed.

Affirmed in part and reversed in part.

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


text:
    Perlean Hall and Azalee Keese, Plaintiffs-Appellants, v. Checker Taxi Company, Inc., a Corporation, Lawrence Perry and Robert McGee, Defendants-Appellees.
    Gen. Nos. 53,068, 52,882. (Consolidated.)
    First District, First Division.
    April 21, 1969.

      Pressman & Hartunian, of Chicago (Charles Pressman, of counsel), for appellants.
    George F. Barrett, and Jesmer and Harris, of Chicago (James B. Henderson, Julius Jesmer, and Michael Silver-man, of counsel), for appellees.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

This action was brought by Perlean Hall and Azalee Keese to recover damages against defendant Robert McGee, the driver of the car in which Hall and Keese were passengers, defendant Lawrence Perry, the driver of the car with which McGee’s car collided, and Perry’s principal, defendant Checker Taxi Company, Inc. Lawrence Perry was not served with summons in the above action, although in a separate action he brought a claim against defendant McGee for negligence in the accident. Both cases were consolidated and tried before Judge Barry, and the court rendered a directed verdict for defendant McGee and against the plaintiffs Hall and Keese. The remainder of the case went to the jury, and the jury found in favor of Perry and against Hall and Keese, and in favor of Perry and against McGee in the consolidated case.

The accident out of which this action arises occurred on March 19,1962, some time between 1:15 and 1:30 a. m., at the intersection of 59th Street and South Elizabeth Street in the City of Chicago, Illinois. The streets were wet and there was a light rain falling. Riding as passengers in McGee’s car were the plaintiffs, Hall and Keese. Hall had previously suffered an epileptic seizure and Keese had requested McGee to drive Hall to a hospital, which McGee agreed to do. Hall was unconscious when she was placed in the front seat of McGee’s automobile, between McGee, the driver, and Keese, who cared for her. The parties then proceeded west on 59th Street.

Perry, a driver for the Checker Taxi Company, Inc., was delivering a passenger to 5939 South Elizabeth Street and was proceeding west on 59th Street. At the intersection of Elizabeth and 59th Street, Perry attempted to make a left-hand turn from his westerly course to a southerly direction into Elizabeth Street and while doing so he was struck by McGee’s vehicle while in the intersection. The impact was great. Both vehicles were thrown to the opposite intersection, doing damage to light poles and store fronts, and Hall and Keese both suffered fractured ankles. McGee’s vehicle was apparently to the left of Perry’s Taxi and over the center line of 59th Street as McGee attempted to pass Perry’s vehicle.

There were five witnesses to the accident. Lawrence Perry, the driver of the cab; Laveta Lewis, a passenger in the cab; Charles Williams, a pedestrian walking west on the south side of 59th Street, approximately ten feet from the intersection of that street and Elizabeth Street; the defendant McGee and plaintiff Azalee Keese. Plaintiff Hall, though a passenger in defendant’s automobile at the time, was unconscious and remembered nothing of the accident. Witness Lawrence Perry is the same Lawrence Perry who is the plaintiff against defendant McGee in one of these consolidated actions.

Four of the witnesses testified that the defendant was traveling at a high rate of speed, 50 to 60 miles per hour. However, none of them directly viewed his moving vehide for a distance of more than fifteen feet. McGee alone denied that he was going fast or that he was passing Perry, and he estimated his speed at 20 to 35 miles per hour.

Three witnesses testified that at the time of the collision, Perry’s taxicab was moving and that the left forward portion was slightly over the center line of 59th Street. Perry testified that the cab was stopped a moment or two prior to the impact in roughly the same position relative to the center line of 59th Street, as described by these witnesses while defendant McGee testified that at the point of impact his vehicle was slightly to the left of the center line of 59th Street, and that the taxicab was in the lane to the right of his vehicle.

After hearing the evidence, the court struck plaintiffs’ wilful and wanton count of the complaint against McGee, since the plaintiffs did not prove their allegations that McGee “recklessly, wilfully and wantonly drove the said automobile at a high and dangerous rate of speed.” Defendant McGee’s motion for a directed verdict was granted and the jury found in favor of Perry and against the plaintiffs. In the consolidated case, the jury found in favor of Perry and against McGee.

Two issues are presented for review in this case: (1) Whether the court properly directed a verdict against plaintiffs Hall and Keese and in favor of defendant McGee, and (2) Whether the court erred in the admission of evidence with respect to the claims of Hall and Keese against defendant Perry.

It is plaintiffs’ contention that in directing a verdict for the defendant, McGee, the trial court relied upon the fact that the plaintiff gave no testimony, nor presented any evidence as to the events and circumstances surrounding the collision. Plaintiffs also contend that the question of wilful and wanton misconduct of a driver of a vehicle is, in most cases a question for the jury’s determination. Larsen v. Harris, 38 Ill2d 436, 231 NE2d 421 (1968); Roth v. Nauman, 90 Ill App2d 44, 234 NE2d 346 (1967); Sinclair v. Thomas, 90 Ill App2d 114, 234 NE2d 368 (1967). Plaintiffs rely heavily on Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967), and argue that the question of wilful and wanton misconduct, usually a jury question, precludes directing a verdict. If this court were to subscribe to that contention under the factual circumstances of this case, we would, in effect, deny the trial court any inquiry or analysis into the probative value and creditability of the testifier. In the Pedrick case, the Supreme Court said:

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

Thus, the rule announced in Pedrick encourages the trial court to evaluate all evidence and testimony adduced at the trial. The Court recognized the problem faced by the trial courts when a motion for a directed verdict was presented:

“In our judgment the controlling issue herein is the troublesome, though familiar, question as to the circumstances under which the trial judge may determine that the proof presents no factual question for the jury’s consideration and that a verdict should be directed . . . .”

In the instant case, the trial court determined, in accordance with the rule stated in the Pedrick case, that considering all the evidence most favorably to the plaintiffs, such evidence overwhelmingly favored the defendant that no contrary verdict based on such evidence could ever stand, and properly directed a verdict for the defendant McGee. The trial court’s decision is further enhanced when we consider that plaintiffs did not offer any evidence as to defendant McGee’s alleged wilful and wanton misconduct, nor did they discharge their burden of proving such as alleged in their pleading.

Plaintiffs next contend the trial court erred in the admission of evidence with respect to their claims against defendant Perry, the employee of Checker Taxi Company, Inc. The plaintiff’s cause was against McGee, the driver of the car in which they were riding, which was disposed of by a directed verdict, and against Perry, which case was disposed of by a jury verdict of not guilty. It is to this latter case that various assignments of error in admitting evidence are raised.

Officer Frank Talone of the Chicago Police Department was called as a witness by defendant Perry. Officer Talone stated he had no independent recollection of the accident in question, since he did not observe the occurrence, but did speak with McGee at the scene, and McGee had stated he was driving about thirty-five miles an hour. Talone wrote the remarks of McGee in his accident report and at the trial refreshed his memory by reading the remarks of McGee in response to the questions directed to him. The court allowed Officer Talone to read the contents of the accident report concerning the remarks of McGee to him (Talone), the road and weather conditions, the location of the automobiles and the speed and distance the two automobiles travelled before and after the impact. Plaintiffs’ counsel presented a motion for a mistrial, outside the presence of the jury upon the grounds that Officer Talone was testifying to facts of which he had no knowledge, and that this constituted hearsay; The court overruled this motion, stating that Officer Talone mentioned he had no knowledge of anything that happened at the accident except his report and “that’s all Talone was testifying from.”

It appears Officer Talone refreshed his memory as to the statement McGee had made to him that night in 1962, and also refreshed his recollection as to the conditions that existed on the day of the accident, and the scene as he found it when he arrived. Supreme Court Rule 236(b), Ill Rev Stats 1967, c 110A, § 236(b), forbids the introduction into evidence of a police accident report and testimony read from such a report is improper. Paliokaitis v. Checker Taxi Co., 324 Ill App 21, 57 NE2d 216 (1944); Smith v. Johnson, 2 Ill App2d 315, 120 NE2d 58 (1954); Moore v. Daydif, 7 Ill App2d 534, 130 NE2d 119 (1955); Kelly v. CTA, 69 Ill App2d 316, 217 NE2d 560 (1966). However, Officer Talone used the police report to refresh his recollection of the conditions on the day of the accident as he found them; he did not offer any conclusions as to what happened or how the accident occurred. The statement of McGee, as to the speed of his automobile, was reaffirmed by McGee himself when he testified as to the circumstances of the accident, and Officer Talone on several occasions testified he did not see the accident, nor knew how it occurred. The record also reveals that when the court overruled plaintiffs’ motion for a mistrial, based on the introduction of hearsay evidence, plaintiffs’ counsel failed to raise an objection to the admission of Officer Talone’s testimony. We are of the opinion that plaintiffs cannot now be heard to complain concerning evidence we believe was properly admitted.

Perry’s voluntary remark concerning the issuance of two traffic tickets to defendant McGee while he (Perry) was being cross-examined by plaintiffs’ counsel arose under the following questioning:

“Q. Now, did you see McGee at the hospital ?
“A. Yes, he was there.
“Q. Do you know what happened to him there ?
“A. I don’t know.
“Q. Did you have any conversation with McGee at the hospital?
“A. Well, McGee was sitting with me in the squad car, at the hospital, making a statement.
“Q. Did you both make a statement to the police ?
“A. Yes, we did.
“Q. And did you sign any statement for the Police?
“A. I don’t remember. I don’t know. I don’t remember no statement. I can’t recall, now. I know they gave him two tickets, is all I know. But I don’t remember signing anything there.
“MR. VARNES: Well, then, Judge, that’s voluntary, highly prejudicial.
“THE COURT: No.
“MR. VARNES: Q. You know that he was discharged on those tickets, don’t you?
“A. No, he paid one, and he discharged the other one.”

We do not think this mention of McGee receiving two traffic tickets made it impossible for plaintiffs to receive a fair trial, and is, in our opinion, harmless error, nor do we believe these consolidated cases should be retried. For the above reasons, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

MURPHY and BURMAN, JJ., concur.


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    Bank of Lyons, an Illinois Banking Corporation, Plaintiff, v. Alvin A. Schultz, Mary Schultz, Chicago City Bank and Trust Company, Individually and as Trustee Under Trust 5565 and 5596, et al., Defendants, Occidental Life Insurance Company, Defendant-Appellee, Mary Schultz, Defendant-Appellant.
    Gen. No. 53,194.
    First District, First Division.
    April 21, 1969.

      Edward J. Barrett, of Chicago, for appellant.
    Peterson, Lowry, Rail, Barber & Ross, of Chicago (Owen Rail and Peter M. Sfikas, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Mary Schultz, appeals from a Decree approving the Master’s Report in favor of defendant, Occidental Life Insurance Company (hereinafter referred to as Occidental), and against the defendant, Mary Schultz. The Master’s Report recited that a certain life insurance policy in the amount of $25,000 and written by Occidental on the life of Alvin A. Schultz, the deceased, had lapsed without value prior to the insured’s death. Mary Schultz was the beneficiary of the policy.

The action first arose as a Creditor’s Complaint filed by the plaintiff, Bank of Lyons, joining the judgment debtor Alvin A. Schultz and inter alia, the appellant and appellee herein as defendants. Defendant Occidental filed, as part of its answer to the Creditor’s Complaint, a counterclaim alleging that there were no proceeds due under the policy in question because the insured failed to pay a premium when it became due and the loan value of the policy was insufficient to pay the premium under the automatic loan provision. The issue raised by Occidental’s counterclaim and Mary Schultz’s answer thereto was referred to a Master and it is the Decree approving his report that is being appealed.

The insurance policy in question was issued on September 12, 1951, on the life of Alvin A. Schultz, the owner of the policy. At the time of the death of Alvin A. Schultz, who was the divorced husband of Mary Schultz, the policy was payable under a beneficiary designation dated August 25, 1954, running to “Mary Schultz, wife of insured, if living . . . .” The right to revoke or change the beneficiary designation was reserved by the insured.

The insurance policy also contained a provision that when any premium remains unpaid after its due date, such due date is the date of default in payment of premium, and that if any premium remains in default after the days of grace, “this policy shall cease subject to the provisions for non-forfeiture contained herein.” The premium due on September 12, 1962, was not paid. The policy having lapsed for nonpayment of premium, the policy was then on the “automatic premium loan” which provides in part:

If, before default in payment of any premium satisfactory written request has been filed with the Company, and has not been previously revoked in writing, the Company will, after loans have become available hereunder, charge as a loan against this policy any premium, including the premiums for any supplemental agreements attached thereto, which thereafter becomes due and remains unpaid, provided the entire indebtedness on this policy shall not exceed the cash value.

The automatic premium loan provision provides further that “[s]uch automatic premium loans shall be subject to the terms and conditions stated in the loan provision of this policy.” The provision relating to “loan” provides that:

The maximum amount which the Company will loan at any time is the cash value of this policy at the end of the policy year during which application for the loan is made, subject to deduction of any unpaid premium or premiums for the then current policy year and all existing indebtedness hereunder.

The insured was notified in advance of September 12, 1962, that on that date there would be due a total of $486.15 consisting of the annual premium of $387.75 and loan interest of $98.40. This premium was not paid. Mary Schultz testified that the premium notice was received and that the insured was in jail at the time. However, she had authority to open his mail and she opened the premium notice. Mrs. Schultz said that she phoned a Miss Gross, one of Occidental’s cashiers, because the insured had previously dealt with this cashier, and asked her if the premium could be paid by loan. Mary Schultz testified that the cashier told her that she would call her back and let her know if it was possible. Shortly thereafter, she stated, she received a communication from Occidental dated December 17, 1962. This letter advised, in part, “that the last premium which was due on your policy was not paid. ... If you haven’t already applied for reinstatement, we will be glad to send you an application. You may use the back of this letter for your reply if you wish.” Mrs. Schultz wrote on the reverse side of the notice “Please be advised that this premium should be paid through the automatic loan clause that is in the policy. Trusting that this matter will be taken care of. . . .” Occidental replied on December 28, 1962:

Your reply to our recent lapse letter is appreciated. It is true that both your policies (there was another policy not involved in this appeal) have the automatic premium loan provision. However, this provision can only pay premiums as long as there is cash value. The cash value of Policy No. 3208619, available as of December 12, 1962, was $2,150.00 the amount of loan outstanding. Since there was no further value available for application to the September 12, 1962, annual premium, it was necessary to lapse the contract for nonpayment of the premium due on September 12. . . .

Mary Schultz testified further that in a subsequent phone conversation during the first week of January 1963, she was informed by Miss Gross that it would be arranged that the policy be paid “at which time I marked this on the receipt ‘paid by loan.’ ” Mrs. Schultz said that when Alvin Schultz was released from jail in February of 1963 he telephoned Miss Gross in her presence to find out the status of his policy. She heard him say to Miss Gross that two or three hundred ought to take care of it. She said she gave him the money. Mary Schultz said she called Miss Gross again on May 21, 1963, and informed her that the insured had passed away and asked what she should do. “She answered me, the only thing I had to do was turn the policies in and that it would follow a normal procedure with the—payments would be made to me as beneficiary on both policies. She never stated that the policies would not be paid. She merely extended her sympathies, that is all I recall.” Esther Gross testified that she had been employed by Occidental during the period in question. She stated that her duties as cashier were to receive premium payments and to take care of loans, surrenders, policy changes and death claims. She said she had no authority to “nor did I ever extend the time of the payment of insurance premiums on policies which had lapsed.” She testified further that at no time did she tell Mrs. Schultz that the annual premium on the policy in question was paid by a loan on the other policy issued to Alvin Schultz. She said she did not believe she ever told Mrs. Schultz that the amount of the cash value on the other policy was sufficient to pay the premium due. Miss Gross said that she saw Alvin Schultz in the Occidental office some time after the lapse of the policy and at that time he made no payment on the policy nor did she recall that he sought to reinstate the policy. She also did not recall that she told Mary Schultz that the company would pay the death benefit. On cross-examination she testified that she did not remember having any phone conversations with Mrs. Schultz prior to the insured’s death.

Edward Carnal testified that he was the manager of the Chicago agency of Occidental. He said that if a policyholder requests a loan through a regular loan form, the form is sent to the home office. If there is sufficient loan value in the policy, the company goes ahead and makes the requested loan. Mr. Carnal also said that if a policyholder requests, through a loan application, that a loan be made against a certain policy to pay for the premium on a second policy, that presumably the request would be honored if there is sufficient loan value in the first policy.

Darrell Hays, an associate manager of Policy Loan and Surrender Department of Occidental testified that their records showed that the total owned cash value of the policy in issue was $2,050 and that there was a loan against it for $2,050, leaving no cash value. Mr. Hays also testified that the September 12 premium was never paid. He stated that by the terms of the policy it is necessary for a policyholder at the time of the due date of a premium to make a special application for the application of the loan value, if the policy was on the automatic loan provision. Hays said that when Alvin Schultz died in May 1963, their records showed that the policy had lapsed on September 12,1962, without value, and for that reason Occidental refused to make payment. He said the company, under the automatic premium loan provision, does not make any transfer of loan value from one policy to another automatically. He related various facts and figures about the policy not here contested from which he computed that the cash value from the second policy which the policyholder might have applied for on September 12, 1962, was $147.38. A loan agreement directing the transfer of money, signed by the insured and all interested parties, he said, was the method by which the loan value on one policy may be applied to the payment of a premium on another policy. He stated that no such agreement was received by the company and that at no time, on or after September 12, 1962, was there ever a sufficient net loan value available on the instant policy.

Initially, we agree with counsel for Mary Schultz that the courts of this state are loathe to enforce a forfeiture, and are prompt to seize on any circumstances which indicate a waiver or which gives rise to an estoppel. Forfeiture of life insurance policies is not favored, and unless the circumstances show a clear intention to claim a forefeiture for non-payment of the premium, forfeiture will not be enforced. Baxter v. Metropolitan Life Ins. Co., 318 Ill 369, 149 NE 243. The Supreme Court further stated in Baxter at page 372, 149 NE at 244, that:

Waiver by an insurer results when it by an act, statement or course of conduct toward the assured recognizes the policy as existing though the time for payment of the premium has expired .... If the conduct of the insurer is such as to induce the assured to believe that a forfeiture will not be insisted upon, the insurer will be held to be estopped from taking advantage of such forfeiture.

The defendant, Mary Schultz, contends that the insurance policy in question was in full force and effect on May 20, 1963, the date of the death of the insured by virtue of an oral waiver of nonpayment of premiums by the insurance company’s agent, Miss Gross. Mrs. Schultz argues that Occidental held out to their policyholders that Miss Gross, their cashier, had authority to waive or extend the time for the payment of premiums. The only competent evidence on this point, Mrs. Schultz maintains, is to the effect that Esther Gross, whom she knew to be an Occidental cashier, told her that the policy premiums would be paid. Mary Schultz claims that this evidence is uncontradicted because Esther Gross could not remember any conversations with her prior to the insured’s death and that, therefore, Miss Gross could not competently deny Mrs. Schultz’s testimony about the content of such conversations.

The Master, to whom the issue was referred, found against Mrs. Schultz. He held that repeated notices from Occidental informed Mrs. Schultz that the policy had lapsed and that the cash surrender value was insufficient to support the automatic loan provision. He concluded that Mrs. Schultz should have inquired about the authority of Miss Gross, especially after she received the abovementioned notices from Occidental. Finally, the Master found that Occidental had not held out to Mrs. Schultz that Miss Gross had authority to waive or extend payment of premiums. The decree of the Circuit Court approved the findings of the Master and held that Mary Schultz was not entitled to recover any amount from Occidental by reason of the fact that the policy had lapsed for nonpayment of premiums and was not in force or effect at the date of the death of the insured.

The law is well settled in Illinois that where a master-in-chancery has heard the evidence, his findings of fact do not carry the same weight as the verdict of a jury, nor the findings of the chancellor where the witnesses have testified before him; nevertheless, the master’s findings are entitled to due weight on review, and, when approved by the chancellor, a reviewing court is not justified in disturbing them unless they are manifestly against the weight of the evidence. Majewski v. Gallins, 17 Ill2d 92, 160 NE2d 783; Michna v. May, 80 Ill App2d 281, 225 NE2d 391.

We have concluded that the evidence in this record supports the findings of the Master and that the findings are not against the manifest weight of the evidence. The record clearly establishes that the premium due September 12 was never paid. Even assuming arguendo that Miss Gross had apparent authority to waive premiums, and we do not so hold, it would have been incumbent upon the insured, ■ under the policy provisions, to file a written application for extension of his payment. The record shows that there had been a previous default in the payment of a premium on this same policy and that on that occasion Alvin Schultz sent in an application for reinstatement with an appropriate letter. Thus, we are here concerned with a procedure known to the insured for reinstatement. Nor were the acts of the company misleading to the' insured or to Mrs. Schultz. A notice was given to the insured of the premium payment that was due. He was notified by letter that his “grace period” had expired. Subsequent to the request by Mrs. Schultz that the premium should be paid through the automatic loan clause she was informed by the company in writing on December 28, 1962, that there was no further value available for application to the September 12, 1962, annual premium.

We have carefully examined the authorities submitted to us on the proposition that a lapse in payment may be waived by an agent with apparent authority or where the insurer’s actions have been such as to induce the belief in the insured that strict compliance with the terms of the policy will not be required. AH of these cases deal with fact situations wherein the courts found apparent authority or where the insurer’s actions had been found to mislead the insurer. These cases are unlike the facts in the case at bar and, therefore, are not controUing.

Since it is our opinion that the findings of the Master who saw and heard the witnesses were amply supported by the evidence, the decree of the Circuit Court is affirmed.

Decree affirmed.

ADESKO, P. J. and MURPHY, J., concur.


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    Crest Finance Company, Inc., Plaintiff-Appellee, v. First State Bank of Westmont, Defendant-Appellant, and Federal Deposit Insurance Corporation, as Receiver for the First State Bank of Westmont, IntervenorAppellant, v. Leo Niederberger, Defendant-Appellee.
    Gen. No. 53,238.
    First District, First Division.
    April 21, 1969.

      Taylor, Miller, Magner, Sprowl & Hutchings, of Chicago (James J. Magner, Michael D. Aufrecht, S. Rex Lewis, General Counsel, Federal Deposit Insurance Corporation, Washington, D. C., and Leslie H. Fisher, Deputy General Counsel, of counsel), for appellant.
    Kelly, Kelly and Kelly, of Chicago (John J. Kelly, Sr. and George J. Kelly, of counsel), and Rappaport, Clorfene & Rappaport, of Chicago (Hamilton Clorfene, of counsel), for appellees.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal by the Federal Deposit Insurance Corporation as Receiver of the First State Bank of Westmont from a decree of the Circuit Court of Cook County entered on April 4, 1968, fixing the Master’s fees in the amount of $18,570.65 and assessing all of said fees as costs against the Receivership estate. The appeal is an aftermath of a controversy concerning the ownership of certain securities. The principal case came before this Court as General Number 50,169, Crest Finance Co., Inc. v. First State Bank of Westmont, reported in 66 Ill App2d 364, 214 NE2d 526. The Supreme Court also heard the principal case on leave to appeal granted, and its opinion is reported in 37 Ill2d 243, 226 NE2d 369. Appellate review of the Master in Chancery’s fees was deferred and reserved until the Chancellor’s determination of the ownership of the securities could be reviewed.

The record reveals that John J. Kelly, the Master in Chancery to whom the principal case was referred, filed a Master’s certificate of fees and charges itemizing the services he rendered and requesting the amount of $33,-500 less the amount of $15,000 previously deposited with him by the parties pursuant to a court order. Both parties objected to the Master’s petition for fees as being excessive. Master Kelly then filed a second amended petition in which he stated that the case was a hard-fought one involving numerous legal problems; that the hearings commenced on June 11, 1963, and terminated thirteen months later on July 1, 1964; and that he had served as a Master in Chancery for forty years. Attached to the petition was a certificate of fees and charges which recited, among other things, that the Master had examined the pleadings, heard the witnesses, filed three separate reports, heard arguments, read briefs, conducted thirty-six days of trial and had numerous conferences and phone calls with the respective attorneys. The certificate also included a statement of hours which totalled 200 hours for trial dates and 450 hours for the other above-mentioned services.

On December 11, 1967, a hearing was held before Judge Donald J. O’Brien on the matter of Master Kelly’s fees. During the hearing the Master was extensively examined by both counsel for the Beeeiver and for Crest Finance Company. On April 4,1968, Judge O’Brien entered his final decree which allowed the Master (1) $970.65 for taking 6471 folios of testimony at the statutory fee of 15^ per folio of 100 words; (2) an additional sum of $3,600 calculated at the rate of $100 per day for 36 “trial days”; and (3) 350 hours for all the remaining reports at $40 per hour, or the sum of $14,000. The fees totalled $18,570.65 and were assessed against the Receivership estate.

We were informed during oral argument that the sum of $970.65 allowed as statutory fees is not contested. Both parties, however, maintain that the balance allowed to the Master is excessive and should be reduced. We give our attention first to the allowance of 350 hours at the rate of $40 per hour.

The Receiver contends that the Master’s fees in this case are excessive. He argues that the rate of $40 per hour exceeds the rate paid to a chancellor and that, therefore, the rate is above the maximum allowed in Galler v. Galler, 45 Ill App2d 452, 196 NE2d 5. In Galler the Court stated that

“[t]he correct rule in awarding Master’s fees is as simply stated in Kerner v. Peterson, 368 Ill 59, 82, 12 NE2d 884, 894:
“ ‘The master’s position and responsibility are inferior to those of the chancellor and his daily compensation should not be equal to or exceed the chancellor’s compensation when reduced to a per diem basis.’ ”

Galler v. Galler, 45 Ill App2d 452, 466-67, 196 NE2d 5, 12-13.

We see no good reason to adhere to the formula set down in the Galler decision. We think the better rule to be that announced by the Supreme Court in Horan v. Blowitz, 13 Ill2d 126, 133-134, 148 NE2d 445, 449:

“ ‘The sum to be paid [a Master] should be based upon the time necessarily devoted to the work, the intricacy of the proof, and the complications of fact and law involved in preparing the report of his findings and conclusions.’ ”

This principle allows a court the necessary flexibility required to compensate a master for all of the expenses he reasonably incurred during the course of a reference. A maximum limit on compensation, on the other hand, could severely restrict the exercise of the court’s discretion in setting a master’s fees and could place a court in the position where it would be unable to compensate a master for all of his expenses.

In the case at bar the issue of the Master’s fees was strongly contested. The Chancellor required the Master to itemize the time he spent on the case and to be more specific as to his claim for services. This resulted in the filing of two amendments to the Master’s petition before the court proceeded with extensive hearings. In his oral decision the Chancellor noted that the Master claimed 450 hours for reviewing the files, studying the transcripts, reviewing the arguments and objections, examining the exhibits, and preparing three reports on different issues. The court observed, however, that the Master was unable to produce definite documentary evidence or testimony as to the actual time spent in the above-mentioned activities. The hours spent on the case were, by admission of the Master, only estimates. The Chancellor stated that in the absence of definite documentary evidence he considered the credibility of the testimony, the certificates of the Master, and the exhibits. The court held that it would allow 350 hours as the reasonable time the Master spent on the case. The court then turned to the problem of computing a fair and reasonable rate of pay per hour. The Chancellor said he considered the type of case involved and the nature of the work that was performed in arriving at a satisfactory rate of pay. He also said that he computed the per diem compensation of a judge on the basis of $29,000 a year and considered the fact that in addition to a salary, a judge receives pension benefits and other emoluments. The Chancellor concluded that $40 per hour was fair and reasonable.

The allowance of master’s fees rests largely in the discretion of the trial court. Brubaker v. Gould, 34 Ill App2d 421, 180 NE2d 873. Applying the rule of Horan to the record at hand, we find no abuse of discretion in the fees allowed. It should also be borne in mind that masters-in-chancery were compelled to maintain a private office of sufficient size to accommodate lawyers, litigants and witnesses at hearings, as well as employing a competent office staff in order to prepare and furnish incidental, but necessary services to the lawyers. These factors are not easily itemized. Furthermore, the cost of these services have gradually increased in this inflationary period. Also, the record indicates that Master Kelly was given a complicated and hotly contested matter involving a large sum of money and numerous exhibits. The Master was required to review a considerable amount of testimony as well as the pertinent law before he completed his three reports. In light of the complex nature of the principal case and considering the higher cost of operating a law office today, particularly in Chicago, we cannot say that the Chancellor abused his discretion in allowing the Master’s fees of $40 per hour.

The court also allowed Master Kelly an additional sum of $3,600 calculated at the rate of $100 per day for the 36 trial days. We have concluded that there is no basis in the record for this extra charge and that it is outside the legislative mandate of the statute (Ill Rev Stats 1967, c 53).

Finally, the Receiver contends that the costs of the Master should have been divided between the plaintiff, Crest Finance, and the Receivership estate. The Receiver’s contention, however, cannot be sustained on the record. Insofar as it is relevant the applicable statute (Ill Rev Stats 1967, c 33, par 18) provides that the costs in chancery cases are in the discretion of the court—a discretion to be exercised according to equitable rules and principles. As a general rule unless there is some equitable ground upon which to base an apportionment, the successful party should not be required to pay any portion of the costs. McFail v. Braden, 19 Ill2d 108, 166 NE2d 46. Since it is undisputed that the decision of the Supreme Court in the principal case was adverse to the position of the Eeceiver, we see no reason to disturb the finding of the Chancellor in assessing all the fees to the Eeceiver. We are not unmindful that the Supreme Court, after filing its opinion, retaxed the bill of costs on motion of the Eeceiver dividing the costs between the plaintiff and the Eeceiver. This was done under the old rules prevailing during the appeal to this Court and the Supreme Court. We fail to see how this action is applicable to the question of apportioning Master Kelly’s fees.

For the reasons assigned that part of the decree of the Circuit Court allowing Master Kelly fees in the amount of $970.65 and of $14,000 (totalling $14,970.65) and assessing it against the receivership estate is affirmed and the fees awarded in the amount of $3,600, is reversed. The cause is remanded for the purpose of modifying the decree to conform with our views.

Affirmed in part and reversed in part, and remanded with directions.

ADESKO, P. J. and MUEPHY, J., concur.