author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Richard L. Wendt, Defendant-Appellant.
    Gen. No. 51,748.
    First District, Second Division.
    December 30, 1968.
    Rehearing denied January 29, 1969.

      Bellows, Bellows & Magidson, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Sheldon Schapiro, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

The defendant, Bichard L. Wendt, was indicted for the crime of indecent liberties with a child in violation of 111 Bev Stats 1965, c 38, § 11-4. After a trial without a jury, he was found guilty of that crime and sentenced to a term of 1 to 3 years in the penitentiary. He appeals, contending that he was not proved guilty beyond a reasonable doubt; that the trial court erred in excluding evidence of the reputation of the complaining witness; that the trial court erred in allowing evidence of other offenses; and that the sentence imposed was harsh and should be reduced.

Evidence for the State:

The complaining witness testified that he was 10 years old, in fifth grade, and lived with his parents. He met the defendant about two years before trial. On August 5,1965, he went to the defendant’s apartment after school about 3:45 p. m. and entered by means of a key which had been given to him by defendant. He played records and cleaned the apartment until the defendant arrived about 4:15 p. m. Complainant then watched T. V. and ate a supper which he had prepared. After supper he did some homework, worked on a shortwave set for about an hour, and went to bed at 9:00 p. m. He and defendant slept in the same bed, and they both wore pajamas. The air conditioner was on, but shortly after they went to bed defendant stated that he was hot; he took off his pajamas and told the complainant to do the same. At that point, defendant played with the complainant’s penis for approximately one-half hour. Another boy about the same age was in the apartment that night. The other boy slept on the couch in the living room, and the door between the living room and the bedroom was closed. At about 6:00 a. m. the following morning, defendant drove the complainant home and the other boy to Hanover Islands. A few days afterwards, complainant’s father directed him to tell what had happened, stating that he already knew about it. Complainant did not know how his father had found out about the incident. Complainant had slept with the defendant on numerous prior occasions, and defendant had touched his penis many times before. Defendant had bought him presents at times and gave him an allowance of fifty cents a week. The defendant, at times, had struck the complainant around his thighs with a belt, a paddle, or his open hand, usually before defendant touched him in his private parts. Defendant warned him not to tell anyone about what was going on in the apartment or he would punish him.

On cross-examination, complainant stated that at the preliminary hearing he had testified that just he and defendant were present on the night in question, and that defendant had touched his penis for “five or more minutes.” He could not remember whether they went to the Allied Radio store on that particular evening. He was not attending school on the day in question, and the homework he was doing on that evening was part of a long-range summer assignment.

Complainant’s mother testified that four days after the above incident, she and her husband went to defendant’s apartment. They were there from about 10:00 p. m. until 11:00 p. m. When accused, defendant at first denied doing anything, but then admitted fondling their child, stating that there was nothing wrong with what he did. On cross-examination, she testified that defendant was a Sunday School teacher and otherwise active in their Church; that they had known him for some time; that she knew that he had struck her son with a paddle, but that she did not know about a belt. She denied being intoxicated on the evening they went to defendant’s apartment, but stated that she could have had something to drink.

The father of the complainant also testified that he and his wife went to defendant’s apartment four days after the incident. After being accused by the father, the defendant at first denied, then admitted fondling the complainant. Defendant explained the term “fondling” as playing with their son’s penis. Defendant said that what he had done “wasn’t so terrible.” The father told the defendant that if he would not turn himself in to the police or to a mental institution within 24 hours, he would notify the police. On cross-examination, the father stated that he did not remember whether he and his wife had anything to drink, and that he had no knowledge that defendant had on occasion struck his son. Although stating that defendant had their permission to discipline the children, he would never have given permission to defendant to strike them with any instrument. His children also had permission to stay at defendant’s apartment, and defendant had on one occasion lent him money.

Leonard J. Keating, youth officer of the Cook County Sheriff’s Police Department testified that he talked to defendant for about an hour after his arrest. Defendant admitted that he had slept in the nude with the complainant on the night in question, and with other children on different occasions. He denied ever fondling the complainant, but stated that he probably rolled over in bed at times and touched the children on their private parts, but “they never objected so he just let it go.”

It was stipulated that defendant was 26 years of age.

Evidence for the Defense:

Reverend Mr. William Bartley, pastor of the Church where defendant taught, testified that the defendant’s general reputation for good morals, chastity, truth and veracity was good. Complainant and his family were members of his congregation. John Frederickson, a school teacher and head of the Sunday School, also testified that defendant’s general reputation for good morals, chastity, truth and veracity, was good.

David Hewing, a boy of the approximate age of complainant, testified that he had met the complainant through the defendant, and had also slept at the defendant’s apartment on several occasions. On the night in question the three of them went to Allied Radio store to buy a birthday present for the complainant and his brother, and then returned to the apartment, where he and the defendant worked on a coil in the bedroom. The complainant fell asleep in the living room, and David and the defendant later went to sleep in the bedroom.

Steven Mendak, the principal of the school attended by the complainant, testified that he did not have any knowledge of school work assigned to the complainant during the summer. His testimony concerning the complainant’s reputation for truth and veracity was stricken by the trial judge.

Thomas Maher, a fellow employee of the defendant, testified that defendant’s reputation for truth, veracity, morals and chastity was good. He also testified that he had heard Officer Keating say at the police station that the complainant’s father was intoxicated when he signed the complaint.

Emily Peyer testified that her 13-year-old son had been in the fun program at the Church under the supervision of the defendant, and that defendant’s general reputation for good morals and chastity was good.

Defendant’s mother, Lucille Wendt, testified that during a recess in the courtroom at the time of the preliminary hearing, she overheard a conversation between the complainant and his parents. She heard the complainant say that the defendant did not do anything to him, and his father agreed, but asserted that they had to go through with it. The complainant also told his mother that defendant did not do anything, but his mother told him to be quiet.

Defendant testified that he was a production engineer at Motorola; that he had been a member of the Apostles Lutheran Church for the past three years; that he was a Sunday School teacher and the director of the fun program there. He had known the complainant and his family for about two and a half years, and that he had seen the father strike the complainant and his brother on several occasions. He had given the father a key to the apartment some time previously. On the night in question, he, the complainant and David Hewing went to his apartment together. After supper, they went to Allied Radio to buy some gifts. When they returned, the complainant said that he was tired and went to sleep on the living room couch, while defendant and David were in the bedroom working with the gifts. The complainant called the defendant because he had a heat rash on his abdomen, and defendant rubbed some talcum powder on the rash. Later, the defendant and David went to sleep in the bedroom. In the morning, defendant drove the two boys to the complainant’s home. A few days later, the parents of complainant came to his home and accused him of the act in question, which act he denied. They both threatened him if he would not commit himself to an institution. Three days later he was arrested. He never touched the boy’s private parts.

On cross-examination, the defendant stated that he had slept in the same bed with complainant but not on the night in question. On the nights that they slept in the same bed, complainant sometimes was in the nude, but not the defendant. He struck the complainant sometimes with his hands, and sometimes with a paddle, a “seater-heater.” He did not remember, but it was possible that he had also struck complainant with a belt.

On rebuttal, Officer Keating testified that he never said that complainant’s father was drunk at the time he signed the complaint. The complainant and his parents testified on rebuttal that they did not have such a conversation in the courtroom at the preliminary hearing as testified by defendant’s mother. Complainant also denied that he had a rash or that defendant applied talcum powder to a rash on the night in question.

Defendant’s first contention on this appeal is that he was not proved guilty of the crime charged beyond a reasonable doubt. We do not agree.

Where a conviction for the crime of indecent liberties is based on the testimony of the complaining witness, and the defendant denies the charge, the testimony of that witness must be clear and convincing or must be corroborated by other substantial evidence. People v. Kolden, 25 Ill2d 327,185 NE2d 170 (1962).

The defendant maintains that the testimony of the complainant was not clear and convincing, citing several inconsistencies in his testimony. At trial, the boy testified that he went to defendant’s apartment after school; on cross-examination he stated that school was not then in session and that he was not attending summer school. At the preliminary hearing he testified that he and the defendant were alone on the evening in question; at trial he stated that David Hewing was also present. At the preliminary hearing, the complainant testified that he and the defendant went to Allied Radio store that evening, while at trial he could not remember whether they went to the store; at the preliminary hearing he testified that defendant was wearing pajamas during the indecent act, while at trial he stated that defendant removed them before the occurrence. The complainant tried to explain some of the inconsistencies at trial; for example, when he testified that he and defendant were alone he thought that the question referred to who was present in the bedroom rather than in the apartment. However, when viewed in the light of all the surrounding circumstances, we cannot attach the importance to these inconsistencies that the defendant does. The testimony from which the inconsistencies arise deals only with collateral events. Moreover the relationship between the boy and defendant, the frequency with which he stayed at defendant’s apartment and the interval betweén the occurrence, the preliminary hearing, and the trial would explain the minor inaccuracies of the boy’s testimony.

However, defendant points out an inconsistency in the complaining witness’s testimony which is more relevant to the indecent act for which he has been convicted. At the preliminary hearing, the complainant testified that the act took “five or more minutes,” while at trial he stated that it took about a half hour. While the testimony concerns the act, we do not believe that a boy of 10 years would pay much attention to the passage of time during the occurrence. In fact we would expect the complainant’s recollection of the time element to be somewhat hazy. The trial judge made an express finding that he recognized the difficulty of cases such as these, but that the testimony of the complaining witness was clear, and convincing and mature. We believe that the record supports that finding.

Defendant cites People v. Martin, 380 Ill 328, 44 NE2d 49 (1942); People v. Pazell, 399 Ill 462, 78 NE2d 212 (1948); and People v. Williams, 414 Ill 414, 111 NE2d 343 (1953), in support of his contention that the testimony of the complaining witness was not clear and convincing. But these cases are all distinguishable from the case at bar. In the Martin case, the conviction was reversed on the basis of an insufficient identification of the defendant by a six-year-old girl who did not recognize defendant until prompted by her mother. In the Pazell case, the Supreme Court found that the testimony of a seven-year-old girl was unsatisfactory. In the Williams case, the court found that the testimony of a 13-year-old complainant was unsatisfactory in that she was uncertain as to whether the attempted intercourse caused any pain; further there was testimony by her mother as to bias upon the part of the complainant against the defendant. Neither of these factors are applicable to the present case.

The credibility of the witnesses and the resolution of the conflicting testimony was a matter for the trial court, and this court will not substitute its judgment for that of the trial court. People v. Woodruff, 9 Ill2d 429, 137 NE2d 809 (1956); People v. Kirilenko, 1 Ill2d 90, 115 NE2d 297 (1953).

Although our determination that the complainant’s testimony was clear and convincing makes any discussion of whether there was corroboration of his testimony unnecessary, we wish to note that the testimony of the parents as to admissions made by defendant constituted corroboration. We are not persuaded that the difference in their testimony negates its corroborative value. The mother testified that they both accused defendant of molesting their child. She testified that, after first denying it, the defendant finally admitted fondling the child, but that he did not explain what he meant by fondling. The father testified that under his questioning, defendant did explain what he meant by fondling— that he handled the boy’s penis. We believe that the testimony of the parents corroborated the boy’s testimony. Moreover, the complainant’s testimony is further corroborated by the testimony of the police officer as to admissions made by defendant. The officer testified that, while denying the act of indecent liberties, defendant admitted sleeping with the complainant in the nude on the night in question, and also stated that on occasions he may have rolled over in bed and touched boys with whom he was sleeping on their private parts, but that they never objected.

The defendant next contends that the trial court erred in excluding evidence of the reputation of the complaining witness. The principal of the school attended by the complainant was called by the defense to testify about the complainant’s reputation for truth and veracity in the community.

After the witness testified that he had an idea as to the complainant’s reputation in the community, the following colloquy took place during the examination of the witness:

THE COURT: “He has answered that he knows the general reputation for truth and veracity in and about the school. Is that correct, sir?”
THE WITNESS: “That is right, sir.”
THE COURT: “He may answer as to what it is.”
ATTORNEY FOR DEFENSE: “Would you state what that reputation is ?”
THE WITNESS: “It’s questionable because times where I have had contacts”—
STATE’S ATTORNEY: “Objection to questionable and any relation of any individual instances. It is just a yes or no.”
THE COURT: “Individual instances are not admissible.”
ATTORNEY FOR DEFENSE: “Just state the general reputation.”
THE WITNESS: “It’s not the best.”
THE COURT: “Objection sustained. Is it good or bad, sir?”
THE WITNESS: “Your honor, it is somewhere in between. There are times when to my knowledge he has told the truth and there have been other times when he hasn’t and”—
THE COURT: “But as to — does he really have a general reputation, Mr. Principal? Does the youngster have a general reputation?”
THE WITNESS: “I will go back to the records, as a teacher that has had him I will say that he has not a good”—
STATE’S ATTORNEY: “Object.”
THE WITNESS: “He doesn’t have a good reputation.”

On cross-examination, the following took place:

STATES ATTORNEY: “So when you say that he does not have a good reputation for truth and veracity you are expressing your personal opinion, is that correct?”
WITNESS: “I am expressing the opinion that I have in my working with Terry in situations in the school.”

At this point, the trial court, at the request of the assistant State’s Attorney, struck the witness’s testimony as to the complainant’s reputation for truth and honesty. Thereafter, counsel for the defense examined the witness further and the following occurred:

DEFENSE: “Are you aware of his general reputation in and about the school?”
STATE’S ATTORNEY: “The question has been asked and answered already.”
WITNESS: “Yes, sir.”
DEFENSE: “He says he is, Your Honor.”
STATE’S ATTORNEY: “The question has been asked and answered.”
THE COURT: “Yes, he answered that he did but at the same time he testifies and I think I understand his attitude. It is based upon personal opinion based upon specific instances, is that right, sir?”
WITNESS: “Yes, sir, that is right.”

A witness may testify concerning his knowledge of another witness’s general reputation in a particular community for truth and veracity. However, the testimony may not be based upon the personal opinion of the witness, and must not be concerned with specific instances as opposed to general reputation. People v. Lehner, 326 Ill 216, 157 NE 211 (1927).

An examination of the above testimony clearly indicates that the principal’s knowledge of the complainant’s reputation was based upon personal opinion arising out of specific encounters with the boy. Defendant argues that the witness was asked a series of confusing questions, and consequently, gave confusing answers, but that his opinion as to defendant’s reputation should have been allowed to stand. We find that neither the questions nor the answers were confusing; rather they reveal that the witness was not able to testify as to the complainant’s general reputation even in the academic community. The trial court did not err in excluding the principal’s testimony concerning the complainant’s reputation for truth and veracity.

The defendant next argues that the trial court erred in admitting evidence concerning other acts of indecent liberties between the complainant and the defendant, and evidence that defendant had administered beatings to the complainant.

Over defendant’s objection, the complainant testified that the defendant had touched him “around his penis or private parts” for a period of 2 years prior to August 5, 1965. Defendant concedes that evidence of similar acts of indecent liberties with the same complainant is proper for the purpose of showing the relationship and familiarity between the parties. People v. Pazell, 399 Ill 462, 78 NE2d 212 (1948); People v. Sampson, 1 Ill2d 399, 115 NE2d 627 (1953). But he argues that these other acts were not sufficiently described, either as to time and place, or as to the details of each act, citing People v. Rongetti, 338 Ill 56, 170 NE 14 (1929).

However, in People v. Kraus, 395 M 233, 69 NE2d 885 (1946), the Supreme Court held that the testimony of a 13-year-old complainant that acts similar to the one charged had occurred several times over a period of one year was admissible, not for the purpose of showing an offense other than the one charged, but to show the relationship that existed between the parties. Likewise in the instant case, the complainant’s testimony as to the prior indecent acts was properly admitted.

The complainant also testified that defendant struck him about the legs and rear end with a belt and board (the latter was characterized as a “seater-heater” by both parties) a couple of times a week for about two years. Although we do not accept the State’s argument that this evidence constituted proof of defendant’s warped sexual desires, we believe that it was admissible to show the relationship and familiarity between the two parties.

Defendant finally contends that the sentence imposed by the trial court was unnecessarily severe, arguing in effect that it was error to deny probation to defendant. The Supreme Court has stated that the power of reviewing courts to reduce sentences (Supreme Court Rule 615(b) (4)), (Ill Rev Stats 1967, c 110A, § 615) should be exercised with considerable caution. People v. Taylor, 33 Ill2d 417, 211 NE2d 673 (1965). Although defendant had an excellent background, he was convicted of a serious crime. We believe that the trial court acted within its sound discretion in denying the application for probation and in imposing a sentence.

For the foregoing reasons the judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE LYONS

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Argusta W. Appleby, Defendant-Appellant.
    Gen. No. 51,959.
    First District, Second Division.
    December 30, 1968.

      Erwin Grombacher, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James R. Truschke, Assistant State’s Attorneys, of counsel), for appellee.
   On Rehearing

MR. JUSTICE LYONS

delivered the opinion of the court.

The defendant, Argusta Appleby, was convicted in a bench trial for the offense of rape and sentenced by the court to a term of from not less than four (4) nor more than ten (10) years in the State Penitentiary. He appeals.

Among the theories advanced by defendant on review are contentions relating to: (1) the propriety of the circumstances surrounding his waiver of trial by jury; (2) incompetence of counsel in the trial court; and (3) the prejudice and predisposition of the trial judge against him. Suffice to say however, that having thoroughly reviewed the record, the court fails to find substance in any of these contentions which, in any event, would have no bearing upon a retrial of the issues. The court will accordingly limit its discussion to defendant’s last theory on appeal, that the evidence presented was insufficient to establish his guilt of the crime charged beyond a reasonable doubt.

The complaining witness, Lillian Phillips, testified that the alleged incident occurred in the early morning hours of June 27,1966, in the bedroom of her apartment located at 1028 East 46th Street, Chicago, Illinois. The prosecutrix had retired to bed at approximately 10:00 p. m. the previous evening, leaving all the lights in her apartment on, including the bedroom. She slept in the same bed with four children (whose names and ages do not appear). Her husband was away at work. At approximately 5:45 a. m., a man appeared in the bedroom, with his pants removed, brandishing a knife. Upon being awakened, Mrs. Phillips observed that it was still dark outside and that the lights in her apartment had been turned off. She stated however that the lights (from 60-watt bulbs) in her bathroom and a closet “in the back” remained illuminated. The intruder advanced and held the knife to the victim’s throat threatening to kill her if she attempted to scream for help.

The assailant thereupon forced the witness at knife-point to engage in an act of sexual intercourse upon the bed. Mrs. Phillips stated that the man remained in the room for approximately fifteen minutes and upon exiting informed her that he resided upstairs in apartment 409, inquiring, “. . . was I coming up to see him. . . .” The victim testified that none of the four children in the bed had been awakened by the incident, explaining that she maintained silence, being in fear of her life. The witness testified that she thereafter immediately informed the building janitor of the assault and asked him to call the police. She stated that the police arrived to investigate, and acting on her information, discovered that there was no apartment 409 in the building. The witness added that she then promptly sought treatment at both Provident and Cook County Hospitals for injuries resulting from the attack.

Two days later, the prosecutrix stated that she had an occasion to observe defendant at close quarters, entering her apartment building. She testified that while she had an “idea” he was the man who had accosted her, she could not be positive about recognizing him because of a flat cap he was then wearing. Mrs. Phillips inquired and discovered that the man had taken the building elevator to the fourth floor. She stated however that the next day she observed defendant across the street from her building (described as a distance of about 20 yards) and recognized him as the rapist, immediately summoning two policemen in the vicinity to make an arrest. Defendant was similarly pointed out by the prosecutrix in open court.

One of the arresting officers, Albert Smith, corroborated Mrs. Phillips’ account of the streetside identification, stating that defendant, when accused, denied his implication in the crime. In response to inquiry, the officer stated that on June 27th he had had occasion to discover a complaint for rape made by the prosecutrix (presumably among the files at the Area 21 Police Headquarters to which he was assigned). The officer could otherwise add little to the State’s case but to recall that at the subsequent preliminary hearing defendant had claimed to have been at work on the morning in question. Smith stated that a routine check with defendant’s employer proved to the contrary. Testifying in his own behalf at trial, defendant explained in this regard that he had been mistaken as to the day of the week involved and had not worked that particular morning. Defendant admitted to having been a resident in the prosecutrix’s building in apartment 442 at the time of, and for some six to eight weeks prior to, the date of the offense.

Defendant’s defense purported to establish his presence on both June 26th and 27th at the home of his fiancee, Mabel Watson, at 6841 South Emerald Avenue. The alibi was introduced through the testimony of Miss Watson, one Helen Fenner and that of defendant himself, and was consistent in all but more detailed respects. It was submitted that defendant had, as he often did, stayed overnight in Miss Watson’s apartment on the evening of June 26th where he remained until about noon the following day. Defendant had admittedly fathered two of Miss Watson’s children and frequented her home to assist her with household chores.

Each of the above witnesses testified that defendant had participated in a card game in Miss Watson’s apartment which carried late into the evening preceding the crime. These respective accounts however differed considerably as to the specific number and identity of the other persons also joining in and leaving the game. Defendant testified that he had thereafter fallen asleep on the living room couch. As Miss Watson recalled, she and defendant had retired to bed together explaining that her couch was a sectional and too small to accommodate him. Helen Fenner similarly recalled having coffee with Miss Watson and defendant the following morning in the apartment, conceding however, on cross-examination, that she had discussed her testimony with Miss Watson on several occasions prior to the trial. This was the extent of the material portions of the evidence adduced below.

A prosecution for rape is demanding of the utmost caution and circumspection by the courts, as the female’s accusation, stemming from the clandestine circumstance of the offense is easily made, difficult to prove and ofttimes even more difficult to disprove. People v. Kepler, 76 Ill App2d 135, 221 NE2d 801 (1966). Consequently, a reviewing court considers itself especially charged with the duty to scrutinize the sum and substance of the evidence upon which a conviction for rape is predicated.

As is often stated in criminal cases of this nature, it is incumbent upon the prosecution to prove beyond a reasonable doubt both the forcible or nonconsensual act of carnal knowledge as well as its perpetration by the accused. People v. Gardner, 35 Ill2d 564, 221 NE2d 232 (1966). Notwithstanding the fact that the case was tried before a court, sitting without a jury, which is in a superior position to observe the witnesses, a court of review should not hesitate to upset the conviction where the evidence is either so unsatisfactory, improbable or open to uncertainty as to cast some reasonable doubt upon the guilt of the defendant. People v. Qualls, 21 Ill2d 252, 171 NE2d 612 (1961).

The State urges as dispositive of the issue the rule which states that the uncorroborated testimony of the complaining eyewitness alone, if clear and convincing, is sufficient to support a conviction on the charge of rape, We, however, on the basis of the record before us, do not think that the State can prevail by singularly relying on the testimony of the prosecutrix. Under the circumstances demonstrated by the instant case, where, as here, the testimony by the complaining witness alone is not of that affirmative character which the law requires, and the denial by the accused is buttressed by the testimony of persons in a position to know and relate the truth, then the victim’s accusatorial account must be supported by or find substantiation in the facts and circumstances peculiar to the case. People v. Szybeko, 24 Ill2d 335, 181 NE2d 176 (1962); People v. Silva, 405 Ill 158, 89 NE2d 800 (1950).

The only link between defendant and the crime rests in an identification which would appear susceptible to error, and defendant’s admitted residence in the building where the offense was committed. Under such circumstances, the trier of fact cannot lightly set aside the alibi testimony offered in the accused’s behalf as unworthy of belief, albeit partially inconsistent in its more exacting respects. People v. Gardner, 35 Ill2d 564, 221 NE2d 232 (1966).

The question however is not one necessarily dependent upon the trial judge’s determination of the credibility of the opposing witnesses. Conceding that determination for the moment to the State’s advantage, the testimony of the victim must still be convincing to the court’s satisfaction or otherwise be corroborated by the circumstances attending the event. This is an element of fatal absence in the State’s case here. Even though Mrs. Phillips’ testimony remained free of self-contradiction, the account as portrayed by the prosecution leaves many questions unanswered and constrains a doubt as to defendant’s guilt.

To the extent that the victim made explanation for her failure to cry out or manifest some outward attempt at resistance, we have no dispute. The prosecutrix was confronted by a male of, no doubt, superior strength who displayed and threatened to use a deadly weapon. In such a situation, the law does not require of the victim some resistance or counterforce where that act would either be futile or seriously endanger the female’s life in view of the impending threat of harm. People v. Harrison, 25 Ill2d 407, 185 NE2d 244 (1962); People v. Sanders, 82 Ill App2d 159, 227 NE2d 79 (1967).

Nevertheless, numerous elements tending to ameliorate the probative force of the victim’s assertions appear at various junctures in the State’s version of the case. While the general lighting conditions in the apartment when the victim retired appeared adequate, she, at no point, gave indication of the quality of illumination in proximity to the scene of the attack. We know only that the lights in the bathroom and a closet, “in the back” had not been turned off by the assailant. No evidence was adduced to demonstrate the relationship these illuminated areas bore to the bedroom. The prosecutrix said only that it was light and that the defendant had remained in the room for a sustained period of time. Beyond this point, the court was left without some basis upon which to judge and determine the acuity with which she could observe the identity of the intruder. Compare People v. Hartnett, 49 Ill App2d 357, 199 NE2d 671 (1964), involving a similar factual setting.

While within the realm of possibility, the uncertainty with which we view the prosecutrix’s testimony is extended by her story that none of the four children (in a bed containing six persons) were awakened throughout this entire incident. Moreover, after his commission of the crime, defendant allegedly invited the victim to visit his residence, volunteering information in this regard certain to lead to his eventual arrest. Though the room number he gave proved erroneous, defendant, in fact, was then residing on the 4th floor of the building. We might be inclined to attribute this irreconcilable factor to an unwitting bravado.

In a prosecution for rape, moreover, the female’s prompt or spontaneous complaint of the incident evidencing her indignation is deemed strongly corroborative of the fact that the complainant was subjected to an act of sexual intercourse against her will. People v. Symons, 28 Ill2d 126, 177 NE2d 185 (1961). Save the victim’s self-assertions, the record remains devoid of competent evidence to establish that a complaint was made. It appears only in this respect that Officer Smith, who was not immediately involved in the case, had observed a complaint for rape by Mrs. Phillips on June 27, 1966. Neither the janitor to whom the complaint was allegedly made, the investigating officers who presumably answered his call, nor the purported complaint and/or its author were ever produced by the State to verify this circumstance.

The aforementioned reasoning finds equal application in the prosecution’s failure to call any medical witness who had occasion to consult with or treat the prosecutrix for anatomical injuries at either of the two hospitals she allegedly visited. While not necessarily a requisite to the State’s case, this evidence may have sufficed to fill the voids left by the victim’s testimony. See People v. Edmunds, 30 Ill2d 538, 198 NE2d 313 (1964); People v. Szybeko, 24 Ill2d 335, 181 NE2d 176 (1962).

Although a resident of some duration in the prosecutrix’s building, defendant was an admitted stranger whom the victim had not theretofore observed in the area. Yet, when Mrs. Phillips first saw the defendant two days later, while she had an “idea” he was the man, she did not positively recognize him, because of a flat cap he was then wearing. This confrontation was at close quarters under well-lighted conditions, and nowhere does the victim claim that the cap in any way shielded defendant’s facial characteristics. During her second exposure to defendant in as many days, Mrs. Phillips was allegedly able to make a positive identification (absent the cap) from a distance of approximately 60 feet across a street. While the method of identification in the presence of Officer Smith would only-tend to affect the credibility and weight to be afforded her testimony on the subject, People v. Woods, 26 Ill2d 582, 187 NE2d 692 (1963), we consider this circumstance significant to demonstrate a variance from what we would think to be a rape victim’s more natural course of conduct. People v. Rainford, 58 Ill App2d 312, 208 NE2d 314 (1965).

In retrospect, we cannot say that the State has produced sufficient evidence to maintain an abiding conviction of guilt beyond a reasonable doubt. Since the State has not made a showing that on a retrial they can introduce evidence not available in the first trial, the judgment is reversed.

Judgment reversed.

BURKE, P. J. and MCNAMARA, J., concur.


author: JUSTICE LYONS.

text:
    Lora Elsie McKinney, Plaintiff-Appellant, v. High-Low Foods, Inc., an Illinois Corporation, Defendant-Appellee.
    Gen. No. 52,494.
    First District, Second Division.
    December 30, 1968.
    Albert Koretzky, of Chicago, for appellant;
    Baker & McKenzie, of Chicago (Francis D. Morrissey, James E. Manning, Thomas F. Tobin, and Peter J. Mone, of counsel), for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


author: PRESIDING JUSTICE BURKE.

text:
    David H. Hymes, Plaintiff-Appellee, v. Marion Johnson, a/k/a Thomas Johnson, and Gertrude Johnson, a/k/a Loles Johnson, Defendants-Appellants. People of the State of Illinois, Appellee, v. Marion Johnson, a/k/a Thomas Johnson, and Gertrude Johnson, a/k/a Loles Johnson, Contemnor-Appellants.
    Gen. No. 52,813.
    First District, Second Division.
    December 30, 1968.

      Pedersen & Houpt, of Chicago (Peter O’Connell Kelly, of counsel), for appellants;
    no appearance for appellee.
   Opinion by

PRESIDING JUSTICE BURKE.

Not to be published in full.


author: MR. PRESIDING JUSTICE BURKE

text:
    Pacesetter Homes, Inc., an Illinois Corporation, Plaintiff-Appellee, v. Village of Olympia Fields, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 52,916.
    First District, Second Division.
    December 30, 1968.

      Edward A. Scott, and Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons, of Chicago (H. Marlin Smith and Fred P. Bosselman, of counsel), for appellant.
    James W. Cotter and Gregory L. Tumbarello, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

This appeal is taken from a decree entered on the pleadings declaring unconstitutional portions of an architectural control ordinance enacted by defendant, Village of Olympia Fields.

On March 4, 1966, plaintiff, Pacesetter Homes, Inc., through its authorized agent, filed an application, together with architectural plans and other pertinent matters, with the Building Commissioner of the Village for a permit to construct a singe-family residence building in a subdivision of the Village. The application was referred to the Architectural Advisory Committee of the Village which, on April 28, 1966, determined that the application not be allowed on the ground that the proposed building violated Ordinance 63 of the Village regulating the architectural designs and styles of new construction within the Village, and the remodeling or alteration of existing structures. The application was disallowed because the proposed construction was “architecturally similar” to other buildings in the area of the proposed construction site.

The preamble to Ordinance 63 recites that the purpose of the Ordinance is to provide for and protect the health, safety, comfort and convenience of the Village residents. The preamble asserts the desirability of the enactment of reasonable standards for home construction and subdivision design, and recites that “excessive similarity, dissimilarity or inappropriateness in exterior design and appearance of property” adversely affects the desirability, stability, economic and taxable value, and the like, of nearby property.

The Ordinance provides in pertinent part that plans for new building construction, or the remodeling or alteration of existing buildings within the Village are to be submitted to the Village Building Commissioner for the issuance of a building permit. If the Commissioner “believes” that the proposed construction or alteration “may” produce excessive similarity, dissimilarity or inappropriateness in relation to nearby property, he shall refer the application to the Architectural Advisory Committee for further consideration. If “any members” of the Committee likewise “believe” that the proposed construction or alteration “may” produce the same result, he shall direct the Building Commissioner to refer the application to the Architectural Advisory Committee as a body. The Committee must then consider the application, on the same basis as did the Building Commissioner, and “no building permit shall be issued” unless a majority of the Committee determines that the proposed construction or alteration will not produce the “harmful effects” as therein provided.

The standards to be employed by the Building Commissioner and by the Architectural Advisory Committee in determining whether a proposed construction or alteration is violative of the Ordinance are set out in subparagraph E of section 1 of the Ordinance. It provides that the Commissioner and the Committee, in reaching a determination, shall consider “whether there exists one or more of the following:

“(i) Excessive similarity or dissimilarity of design in relation to any other structure existing or for which a permit has been issued within a distance of 1,000 feet of the proposed site, or in relation to the characteristics of building design generally prevailing in the area, in respect to one or more of the following features:
“ (1) Apparently identical facade;
“ (2) Substantially identical size and arrangement of either doors, windows, porticoes or other openings or breaks in the facade facing the street, including a reverse arrangement thereof;
“ (3) Cubical contents;
“ (4) Gross floor area;
“ (5) Other significant design features, such as, but not limited to, roof line, height of building, construction, material, or quality of architectural design; or
“(6) Location and elevation of building upon the site in relation to the topography of the site and in in relation to contiguous property. U
“ (ii) Inappropriateness in relation to any other property in the same or any adjoining district of design, landscaping, building materials and use thereof, orientation to site, or placement of parking, storage or refuse areas.”

If the proposed plan of construction or alteration is approved by a favorable vote of a majority of the Architectural Advisory Committee, the Ordinance provides that the Committee shall serve notice upon the Building Commissioner to issue the building permit. Where, however, the Committee disapproves the application, no permit shall issue except as directed by the Village Board of Trustees. The applicant whose application has been disapproved by the Committee has the right to appeal to the Village Board, at which appeal all records and findings theretofore made before the Commissioner and the Committee shall be made available to the Board. The Village Board has the power, by majority vote, to refer the application back to the Architectural Advisory Committee for further consideration, or, by a favorable vote of not less than two-thirds of all the Board’s members, to set aside the Committee’s action on the application and to direct the Building Commissioner to issue a building permit to the applicant in accordance with the application, provided that all other building requirements of the Village have been complied with.

Plaintiff, upon receipt of notice of the Architectural Advisory Committee’s disapproval of its application, appealed to the Village Board of Trustees as provided by the ordinance. The Board also disapproved the application and refused to grant the desired building permit. Plaintiff thereupon filed this action in the Circuit Court for mandamus to compel the issuance of a building permit and to have Ordinance 63 of the Village declared unconstitutional and void. The Village answered, denying all material allegations contained therein. Plaintiff thereafter moved for judgment on the pleadings, pursuant to section 45(5) of the Civil Practice Act, on the ground that the litigation could be terminated upon a determination by the court of the constitutionality of the Ordinance.

After additional matters were filed by the parties in relation to the plaintiff’s motion for judgment on the pleadings, the court granted the motion and entered a decree finding that subsections D and E of section 1 of the Ordinance (dealing, respectively, with the powers of the Building Commissioner and the Architectural Advisory Committee to withhold the issuance of a building permit upon a determination that the proposed construction or alteration violated the Ordinance, and the standards under which such determination was to be made) were unconstitutional and void as an unlawful delegation of legislative authority to an administrative body without proper standards having been set. The denial of plaintiff’s application for the building permit was held to be an unlawful invasion of plaintiff’s property rights under the constitutions of the United States and the State of Illinois, and the Village was enjoined from enforcing said portions of the Ordinance against plaintiff. The Village appeals from this decree.

The Village contends that Ordinance 63 gives the Architectural Advisory Committee advisory powers only. For that reason, the Village maintains, it was not necessary that specific standards be enacted to control the actions of the Committee.

As pointed out by a noted authority on the subject of Administrative Law, “ [a] dvisory opinions differ from declaratory orders in their lack of reviewability and in their lack of binding effect in absence of an estoppel.” Davis, Administrative Law Treatise, Vol I, § 4.09. A consideration of Ordinance 63 of the Village reveals that the decisions of the Architectural Advisory Committee are declaratory in nature, rather than advisory, and that they are binding upon the applicants and are also appealable.

In cases where the Committee determines that a permit shall be issued to an applicant, the matter is terminated at that point and the Village Board has no further authority in the matter. In cases where the Committee determines that an application should be disapproved, the Ordinance provides that “a building permit shall not be issued on the application except by express direction of the Village Board upon appeal. . . .” (Emphasis by Court.) The Ordinance then provides that in the event of “a denial of a building permit by reason of the action of the Architectural Advisory Committee, the applicant shall have the right to appeal the action directly to the Village Board.” Although the denial of a building permit by the Building Commissioner must be referred to the Architectural Advisory Committee, the appeal or referral to the Village Board of the Committee’s action is not mandatory and the Committee’s disapproval of the application, with the resultant denial of the issuance of a building permit, stands as final as to the applicant, unless he affirmatively acts to overturn the Committee’s determination by appeal to the Village Board. Furthermore, in order to successfully overturn the Committee’s adverse determination, the applicant is required to secure the approval of two-thirds of the members of the Village Board. The function of the Architectural Advisory Committee, and that of the Building Commissioner as well, is declaratory rather than advisory, and the rules applicable to the delegation of legislative powers to administrative bodies are applicable here.

The cases cited by the Village in support of its position apply to bodies acting in an advisory rather than in a declaratory capacity, which is not the case here. See Village of Justice v. Jamieson, 7 Ill App2d 113, 129 NE2d 269, where, under the empowering ordinance, the County Zoning Board was sitting in a purely advisory capacity, the court held that the constitutional standards otherwise applicable to administrative hearings did not have to be complied with. See also Petterson v. City of Naperville, 9 Ill2d 233, 137 NE2d 371, where the advisory commission’s action, as required by the empowering ordinance, had to be submitted to the proper legislative body for a final determination; as pointed out above, no such mandatory appeal or referral to the Village Board from the decisions of the Architectural Advisory Committee is embodied in Ordinance 63.

The question arises whether Ordinance 63 sets forth adequate standards or guidelines to govern the action of the Architectural Advisory Committee (and the Building Commissioner as well) in determining whether a proposed construction or alteration is violative of the provisions of the Ordinance.

It cannot be disputed that the Ordinance gives the Committee wide discretion in determining which applications will be allowed and which will be disallowed. The power of the Committee itself to act is controlled by the initial action of the Building Commissioner. If the Commissioner initially determines that the application should be allowed and the permit issued, no occasion is presented for action on the part of the Committee. Where, however, the Commissioner “believes” that the proposed construction or alteration “may” cause “one or more harmful effects” envisioned by the broad standards set forth in subsection E(i) and (ii) of section 1 of the Ordinance, he shall refer the application to the Architectural Advisory Committee. Only when “any members” of the Committee likewise “believe” that the proposed construction or alteration “may” have such harmful effect or effects does the authority of the Committee as a whole to act in the matter arise.

If the Committee, applying the same standards as hereinabove set forth, determines by majority vote that the application shall be allowed, then the Building Commissioner “shall” issue the building permit as directed by the Committee. If the Committee determines that the application shall not be allowed, then the applicant’s only recourse is to appeal to the Village Board and attempt to secure a favorable vote of two-thirds majority of the members of the Board. It is clear that Ordinance 63 fails to prescribe adequate standards to control the actions of the Architectural Advisory Committee in determining whether or not an application shall be approved or disapproved, and confers too broad a discretion on the Committee in this regard. City of Sullivan v. Cloe, 277 Ill 56, 61-62, 115 NE 135.

The cases cited by the Village for the proposition that an ordinance need not prescribe precise standards to control decisions made by local legislative bodies are not in point. The standards set out in Ordinance 63 should have been designed to control decisions made by an administrative body, and not a legislative body, as demonstrated above. See Kotrich v. County of DuPage, 19 Ill2d 181, 166 NE2d 601; Brown v. County of Lake, 67 Ill App2d 144, 213 NE2d 790.

The Village cites architectural control ordinances enacted by several other municipalities in this State, none of which have been subjected to a judicial determination as to their validity. In light of the view we take of Ordinance 63 of the Village of Olympia Fields, it is unnecessary to consider the matters raised in the briefs of the parties with respect to the purpose and validity of architectural control ordinances generally.

For these reasons the decree is affirmed.

Decree affirmed.

LYONS and McNAMARA, JJ., concur.


text:
    Henry E. Larson, et al., Plaintiffs-Appellees, v. Frank J. Boudart and Frank P. Boudart, Defendants-Appellants.
    Gen. No. 53,102.
    First District, Second Division.
    December 30, 1968.

      Dudley R. Sullivan, of Chicago (John J. O’Connor, of counsel), for appellants.
    Theodore L. Forsberg, of Chicago, for appellees.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

This was an action to recover damages for personal injuries occasioned by the alleged negligence of defendants in the operation of an automobile. Hie jury returned a verdict in favor of all three plaintiffs and against both defendants, and assessed damages in the aggregate amount of $5,850; judgments were entered on the verdict. Defendants prosecute this appeal, contending that the plaintiffs’ evidence failed to make out a prima facie case of defendants’ negligence, that plaintiffs failed to prove their freedom from contributory negligence, and that the verdict is against the manifest weight of the evidence.

The mishap occurred at the intersection of Lake and Lavergne Avenues in Wilmette. Lake Avenue is an east-west highway carrying two lanes of eastbound traffic and two lanes of westbound traffic. Lavergne Avenue intersects Lake Avenue from the south, forming a “T” style intersection, and there is a stop sign on Lavergne 20 feet south of the south curbline of Lake. Lake Avenue is 67 feet wide at the western curbline of Lavergne Avenue and tapers down to 65feet at the eastern curbline of Lavergne. Immediately to the south of the two westbound lanes on Lake Avenue is a concrete street divider measuring 3% feet in width and containing an open portion for access to and from the westbound lanes, immediately north of Lavergne Avenue. To the south of the divider is approximately 42 feet of eastbound roadway. Lake Avenue crosses over the Edens Expressway approximately 600 feet west of the Lake-Lavergne intersection; there is an exit ramp from the expressway 200 to 300 feet west of the intersection, as well as an exit “merging lane” into the eastbound lanes of Lake Avenue traffic which apparently accounts for the decrease in width of Lake Avenue at the Lake-Lavergne intersection. A photograph entered into evidence at trial depicts a number of “gooseneck” type streetlights in the area of the Eden’s Expressway exit ramp, the Lake Avenue expressway overpass bridge, and the LakeLavergne intersection, but there is also evidence in the record that no streetlight existed at the intersection on the date of the accident.

The owner and operator of the Larson automobile, plaintiff Henry Larson, testified that between 5:30 p. m. and 6:00 p. m. on the evening of December 10, 1960, he was driving his automobile westbound on Lake Avenue after leaving a nearby shopping center, and stopped momentarily at the open portion of the street divider anticipating a left-hand turn onto Lavergne Avenue. Seated alongside Mr. Larson was his wife, plaintiff Ida Larson, and seated to her right, next to the passenger door, was her brother, plaintiff Einer Palmberg.

Mr. Larson testified that the headlights of his automobile were lighted and that he switched on the left-turn directional signal. The witness stated that he looked westerly on Lake Avenue to the crest of the expressway overpass bridge; that, although it was nighttime, the area was well lighted and he was able to see the crest of the bridge “very clearly”; and that he observed no oncoming traffic on Lake Avenue. He further testified that he was unable to see what traffic, if any, was on the expressway exit ramp because the ramp is on a lower level than Lake Avenue. Mr. Larson testified that he then proceeded to make his turn across the eastbound lanes of Lake Avenue toward Lavergne Avenue, that his automobile cleared the two eastbound lanes on Lake and was crossing the merging lane leading from the expressway ramp, and that his automobile was then struck in the right rear portion by an automobile operated by defendant Frank P. Boudart, son of the owner of the automobile, defendant Frank J. Boudart. Mr. Larson testified that he neither saw automobile headlights nor heard the sound of a horn or the screech of brakes prior to the impact. The Larson automobile was spun around by the impact and its left rear portion struck the left front portion of a third automobile standing at the stop sign on Lavergne Avenue, operated by Mr. George Rafel. Mr. Larson testified that the Rafel automobile was standing 20 feet south of the Lake Avenue curbline when the Larson automobile collided with it. The testimony of Mrs. Larson and her brother substantially corroborated the evidence given by Mr. Larson.

Mrs. Larson further testified that she alighted from the Larson automobile about 15 minutes after the initial collision, that she observed that the headlights of the Boudart automobile were not lighted, and that she overheard the driver of the Boudart automobile state, “I couldn’t stop.” Mr. Larson stated that he was knocked unconscious by the impact and also testified that after he alighted from his automobile he observed that the headlights of the Boudart automobile were not lighted.

Defendants’ sole witness, Mr. George Rafel, testified that he had been driving his automobile northbound on Lavergne Avenue and that he stopped for the stop sign at Lake Avenue and waited for traffic on Lake to clear. He testified that his automobile was standing at the south curbline of Lake Avenue. Mr. Rafel testified that he observed the Boudart automobile a distance of 200 to 300 feet to the west of the Lake-Lavergne intersection, traveling in an easterly direction at a “normal rate of speed” with its headlights lighted. The witness was not certain in which eastbound Lake Avenue traffic lane the Boudart automobile was traveling, and could not say whether the Boudart automobile came from Lake Avenue over the expressway overpass bridge, or whether it came from the expressway exit ramp.

The witness further testified that he next observed the Larson automobile attempting to make a left-hand turn from westbound Lake Avenue onto Lavergne Avenue, moving at a “normal rate of speed for making a turn.” The witness did not observe a turn signal flashing on the Larson automobile. Mr. Rafel testified that the collision between the Larson and Boudart automobiles occurred approximately 30 feet from the Rafel automobile and he was unable to say whether it appeared that the Boudart automobile decreased its speed prior to the impact. Although he testified in a deposition prior to trial that the Larson automobile was still in the process of completing the turn when it was struck, Mr. Rafel was unable to state at trial whether the Larson automobile was still in the process of turning when struck or whether it had completed the turn and was proceeding onto Lavergne Avenue. Mr. Rafel testified that the Larson automobile had not yet reached the south curbline of Lake' Avenue at the time of the initial collision, and that the Larson automobile thereafter collided with the front portion of his standing automobile.

Defendants maintain that plaintiffs failed to introduce sufficient evidence of negligence on the part of the defendants to establish a prima facie case of liability. Defendants contend that there was no competent evidence of negligence on their part and that negligence cannot be inferred from the mere happening of the accident.

There is substantial conflict in the evidence with respect to several material factors in the case, the resolution of which was, as has consistently been held, for the trier of fact. Estate of Bors, 83 Ill App2d 447, 453, 228 NE2d 127. The substance of plaintiffs’ evidence is that the Larson vehicle, proceeding westerly along Lake Avenue, was momentarily stopped at the street divider in anticipation of executing a left-hand turn onto Lavergne Avenue. The headlights and the left-turn directional signal of the Larson automobile were on. All three plaintiffs looked westward on Lake Avenue for oncoming traffic; although dark outside, visibility was “very good” and plaintiffs were able to observe the eastbound lanes of Lake Avenue approximately 600 feet to the crest of the expressway overpass bridge. They, however, were not able to observe traffic conditions on the expressway exit ramp, approximately 200 to 300 feet from the LakeLavergne intersection, because the exit ramp is on a lower level than the intersection. Plaintiffs offered further evidence that the Larson automobile had proceeded across the two eastbound Lake Avenue lanes of traffic and was into the expressway exit merging lane when struck by the Boudart automobile. There is also evidence that the headlights on the Boudart automobile were not lighted after the accident.

Defendants’ witness, Rafel, provided defendants’ occurrence evidence and stated he first observed the Boudart vehicle 200 to 300 feet to the west of the Lake-Lavergne intersection, traveling easterly “at a normal rate of speed” with its headlights lighted. The Larson automobile was attempting a turn onto Lavergne Avenue from the westbound lanes of Lake Avenue and was struck in the right rear portion by the Boudart automobile. Defendants’ evidence was that the Larson automobile had not reached the south curbline of Lake Avenue at the time of the collision. Defendants’ evidence conflicts as to whether the Larson automobile was in the process of turning when struck, or whether the turn had been completed when the initial collision occurred. Neither side offered evidence of whether the Boudart automobile came from the eastbound Lake Avenue traffic or from the expressway exit ramp.

In light of the evidence that the Larson automobile was struck in the rear portion of the right side by the Boudart automobile while crossing the merging lane (which is consistent with defendants’ evidence that the Larson automobile had not yet reached the south curb-line of Lake Avenue when struck); that the Boudart automobile was first observed 200 to 300 feet west of the Lake-Lavergne intersection (the expressway exit ramp is the same distance away); that the headlights of the Boudart automobile were not lighted immediately after the accident; that plaintiffs heard no sound of screeching brakes or of an automobile horn immediately prior to the initial collision; that traffic conditions on the expressway ramp were not discernible from the Lake-Lavergne intersection due to the different physical levels of the two road positions; and that there was no streetlight at the intersection on the evening in question, the jury could reasonably have concluded that the Boudart automobile came from the expressway exit ramp and collided with the Larson automobile in the merging lane as a result of the failure of the driver of the Boudart automobile to proceed with due care upon exiting the expressway.

It should also be noted that the jury was instructed with respect to an Illinois statute in effect at the time of the accident relating to vehicles making left turns at intersections. See 111 Rev Stats 1959, c 95%, par 166. The statute provided, in substance, that the driver of a vehicle attempting to execute a left turn at an intersection shall yield the right-of-way to all oncoming traffic within the intersection, or oncoming traffic so close to the intersection as to present an immediate hazard, but that such driver, after having so yielded the right-of-way and signaled the intention to turn, may execute such left turn and that all other vehicles approaching the intersection shall yield the right-of-way to said turning vehicle. Presented with the evidence that the Larson automobile stopped momentarily at the street divider before attempting to execute the left turn onto Lavergne, that the left-turn directional signal on the Larson automobile was on, and that the Larson automobile was through the two eastbound Lake Avenue lanes of traffic and was into the exit ramp merging lane when struck by the Boudart automobile in the rear portion, the jury could reasonably have concluded that the driver of the Larson automobile did not violate the left-turn statute and that the Boudart automobile violated the duty imposed by the statute.

The cases cited by defendants for the proposition that negligence cannot be inferred from the mere happening of an accident, involve material factual distinctions from the instant case and are consequently not in point: Rotche v. Buick Motor Co., 358 Ill 507, 193 NE 529; Coulson v. Discerns, 329 Ill App 28, 66 NE2d 728; Malone v. Chicago Transit Authority, 76 Ill App2d 451, 222 NE2d 93; Foster v. Van Gilder, 65 Ill App2d 373, 213 NE2d 421.

Defendants contend that plaintiffs cannot be heard to say that they “looked but did not see” the Boudart automobile approaching, in view of their testimony that they were able to observe traffic conditions on Lake Avenue for 600 feet to the crest of the overpass bridge. (See e. g., Payne v. Kingsley, 59 Ill App2d 245, 207 NE2d 177, where the defendant testified he looked but did not see the lighted headlight of plaintiff’s approaching motorcycle. The court held, at page 250, that one cannot be absolved from negligence “by asserting that he maintained a continuous lookout, yet failed to see that which he clearly should have seen.”) As shown above, however, the evidence in the instant case leads to the conclusion that the Boudart automobile approached the Lake-Lavergne intersection from the expressway exit ramp rather than from the eastbound Lake Avenue lanes of traffic; traffic conditions on the exit ramp were not discernible from the intersection due to the difference in the road levels and there is evidence that the headlights of the Boudart vehicle were not lighted after the accident. Plaintiffs cannot be charged with failure to see that which was not physically possible to see.

Defendants also contend that plaintiffs failed to prove their freedom from contributory negligence. With respect to the two passenger plaintiffs, Mrs. Larson and Mr. Palmberg, assuming without deciding that they assumed the burden of warning the driver of the Larson automobile of oncoming traffic, it need only be said that this was a question of fact for the jury. There was evidence which leads to the conclusion that the Boudart automobile came from the expressway exit ramp and further evidence that its headlights were not lighted after the accident. There is no evidence that either of the passenger plaintiffs were aware of the approaching Boudart vehicle or of any improper driving on the part of Mr. Larson. Hatcher v. New York Cent. R. Co., 17 Ill 2d 587, 593, 162 NE2d 362. A review of the facts testified to by Mr. Larson, from the time he left the parking lot of the shopping center until the collision with the Boudart vehicle, reveals that the jury could reasonably have found he was in the exercise of due care for his safety and that of his passengers.

The final point raised by defendants is that the verdict is against the manifest weight of the evidence. As shown above, the evidence was in conflict as to material factors and it is clear that the jury believed the plaintiffs’ version of the occurrence and resolved the conflicts in their favor. Unless clearly erroneous, a reviewing court will not overturn a determination by the trier of fact on matters of credibility of witnesses and the weight to be given to the evidence.

For these reasons the judgments are affirmed.

Judgments affirmed.

McNAMARA and LYONS, JJ., concur.


text:
    Aaron Mathes, Plaintiff-Appellee, v. Jean C. Basso, Defendant-Appellant.
    Gen. No. 53,180.
    First District, Second Division.
    December 30, 1968.

      Alan E. Morrill and Robert A. Sprecher, of Chicago (Morrill, Koutsky, Klomann & Chuhak, and Crowley, Sprecher, Barrett & Karaba, of counsel), for appellant.
    Hickey, Gustafson & Peterson, of Chicago (Edward Wolfe, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

This was an action to recover damages for personal injuries sustained by plaintiff as a result of the alleged negligence of defendant in the operation of her automobile. The jury returned a verdict in favor of plaintiff in the amount of $16,488, upon which the court entered judgment. Defendant appeals, maintaining that the trial court committed error in advising the jury, at their request, concerning a special interrogatory after the case had been submitted to them for deliberation.

After a four-day trial on the merits, the case was submitted to the jury on December 19, 1967, shortly prior to the noon hour. Together with the instructions and other matters sent with the jury to the jury room was the following special interrogatory:

“Did the plaintiff fail to exercise ordinary care for his own safety and at the time of the occurrence and was this failure the proximate cause of his injuries?”

Approximately 3:30 p. m. that same day, the jury requested to see the trial judge. With approval of the attorneys for both parties, the trial judge went to the jury room to ascertain the jury’s problem.

The matters which transpired in this regard were summed up by the trial judge as follows:

“I was advised by the court bailiff . . . , that the jury had a question for me. Counsel for plaintiff and counsel for defendant were present with the Court. I advised counsel of the message I received from the jurors via the court bailiff. And whereupon I proceeded to have the court bailiff knock on the jury door and the jurors then admitted the Court. The door remained open and what transpired was, I thought, within the hearing of counsel. The foreman of the jury . . . held in his hand that special interrogatory tendered by the defendant and given to the jury by the Court. He said that they were confused by the interrogatory and asked whether they had to answer it and whether their answer to the special interrogatory would have any effect on the verdict. They had not reached a verdict. But the Court replied that it should be answered and it should be consistent with their verdict. Nothing further was said. The Court then turned back to counsel, to where counsel were standing and advised them as to what had transpired.”

Two to five minutes later the jury returned their verdict and further answered the special interrogatory in the negative.

It also appears from the record that the special interrogatory which was actually submitted to the jury omitted the word “before” after the word “safety,” which word was contained in the interrogatory earlier agreed upon between the court and parties and earlier read to the jury.

The jury was confused by the special interrogatory and its bearing on the issues of the case. The trial court was justified in entering the jury room to ascertain the problem confronting the jury, as counsel for both parties agreed he should do. However, he should not have advised the jury that the answer to the interrogatory should be consistent with their verdict. When a case has been submitted to the jury for deliberation, the trial court should not, in the absence of stipulation between the parties, further advise or instruct the jury or otherwise attempt to clarify any point on which they may raise a question, where to do so would be prejudicial to one of the parties. City of Mound City v. Mason, 262 Ill 392, 104 NE 685; see also People v. Tilley, 411 Ill 473, 477-79, 104 NE2d 499. A special interrogatory or verdict controls a general verdict. Ill Rev Stats 1967, c 110, par 65; Borries v. Z. Frank, Inc., 37 Ill2d 263, 226 NE2d 16. Advising the jury that their answer to the special interrogatory should conform to their verdict constitutes reversible error. Swanson v. Chester Johnson Elec. Co., 5 Ill App2d 175, 125 NE2d 304.

The contention is raised by plaintiff that the special interrogatory which was in fact submitted to the jury was void, inasmuch as it did not contain a vital word contained in the interrogatory previously agreed upon between the court and parties and read to the jury, thereby rendering it misleading and confusing. Plaintiff states that the jury’s answer thereto was consequently a nullity, and that defendant cannot predicate error on this matter. Under the circumstances, it is immaterial whether the interrogatory given to the jury was proper or improper. City of Mound City v. Mason, 262 Ill 392, 399, 104 NE 685. The effect of the trial court’s statement to the jury upon the jury’s verdict or their answer to the interrogatory is not possible to determine. We are unable to say, assuming the nonexistence of the interrogatory, the answer thereto, and the statement of the trial judge to the jury, that the verdict would have been the same as that actually rendered by the jury. While the record shows that both counsel agreed that the trial judge enter the jury room to determine what was the jury’s problem, no agreement between the parties appears in the record that the court was to answer any questions propounded by the jury or to otherwise advise them.

For these reasons the judgment is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

LYONS and McCORMICK, JJ., concur.


author: MORAN, J.

text:
    Velma Hamel, Administratrix of the Estate of Frank Hamel, Deceased, Plaintiff-Appellee, v. Jesse G. Delicate, Defendant-Appellant.
    Gen. No. 67-18.
    Fifth District.
    December 31, 1968.

      Burroughs, Simpson and Burroughs, of Edwardsville, and Emerson Baetz, of Alton, for appellant.
    Smith, Calvo, Swan & Heil, of East Alton, for appellee.
   MORAN, J.

Defendant appeals from a judgment of the Circuit Court of Madison County, Illinois, in favor of the plaintiff in an action under the Wrongful Death Act.

Plaintiff’s intestate, Frank Hamel, hereinafter referred to as Hamel, was employed as a highway watchman by the State of Illinois. On March 2, 1964, a portion of Illinois Highway No. 143 was being repaired by maintenance employees of the State of Illinois, and was blocked by means of barricades. Hamel was working as a flagman directing traffic around the blocked-off portion of the highway, when he was hit by a car owned and driven by the defendant, Jesse Delicate. He was taken to a hospital in Wood River and then removed to Barnes Hospital in St. Louis, where he died on March 5, 1964. Thereafter, plaintiff, who was the wife of Hamel, was appointed administratrix and filed a complaint at law on April 21, 1964, to recover damages for the death of her husband under the Illinois Wrongful Death Act (Ill Rev Stats, c 70, Par 1).

Appellee has not appeared or filed a brief in this court and we could, at our discretion, elect to reverse the judgment on that ground or review the case on its merits. Defendant makes no issue of liability, and in fact, has not abstracted any evidence with respect to the occurrence. Since only the single issue of the sufficiency of the evidence as to cause of death remains for determination, we elect to review the case.

The evidence was that defendant’s car was traveling at a speed of from 30 to 35 miles per hour at the time it struck Hamel; that defendant at no time applied his brakes; that the impact threw Hamel three or four feet into the air and rolled him 35 to 40 feet; that Hamel’s left leg was bent under him; that it was apparent he had an arm and leg broken, because his arm would flop when they took hold of it and that a bone was protruding from his leg.

A Dr. O’Kelly testified that he first saw Hamel on March 2, 1964, at the Wood Kiver Hospital and upon examination found pain and deformity in the left arm, an open wound in the left leg through which the tibia was protruding, complaint of pain in the hips and knee, and shock. Hamel was taken to surgery on the same day and the compound fracture of the leg was cleansed and repaired, fracture of the left femur was repaired, the compound fracture of the left humerus was cleaned and closed, a cast was applied and he was put in continuous traction. Because his kidneys failed to function, Hamel was transferred to Barnes Hospital on March 3, 1964, where an artificial kidney machine was available. In the doctor’s opinion, the injuries were sufficient to cause shock which, in turn, caused low blood pressure; kidney failure was associated with the shock and low blood pressure and death is inevitable if the kidneys fail to function, unless one can use an artificial kidney. Dr. O’Kelly further testified that the failure of Hamel’s kidneys would cause death unless they resumed to function.

On cross-examination Dr. O’Kelly testified that he had no direct knowledge of the condition of the kidneys or whether the blood pressure went up or down after Hamel was transferred to Barnes Hospital; that he had no contact with the patient whatsoever at Barnes because he was referred to another doctor who informed Dr. O’Kelly of Hamel’s death by letter; that he had no direct knowledge of any other illnesses Hamel may have contracted at Barnes; and that of his own personal knowledge he did not know why the man died.

The plaintiff testified that her husband was in good health before the accident; that she does not recall that her husband ever required medical treatment; that she never knew her husband to suffer from any kidney ailment; that she was with her husband all the time he was at Barnes Hospital and that he was not involved in any other accident from the time of entry in the hospital until he died. The plaintiff did not submit any other evidence as to the cause of death.

After plaintiff presented her case, the defendant did not offer any evidence and moved for a directed verdict. The motion was denied and the jury returned a verdict finding the issues in favor of the plaintiff and fixed the plaintiff’s damages at $17,000. Defendant made motions for a judgment in his favor non obstante veredicto or, in the alternative, a new trial. These post-trial motions were denied and defendant now appeals, claiming that the evidence was insufficient to show a causal connection between the injury and the ensuing death.

As a general rule, in actions for wrongful death, the cause of death as well as the time of death are facts which may be established by circumstantial evidence. Zahn v. Muscarello, 336 Ill App 188, 83 NE2d 504. In American Nat. Bank & Trust Co. v. Peoples Gas Light & Coke Co., 42 Ill App2d 163, 191 NE2d 628, a mother, bringing an action against the gas company for the death of her son due to a gas explosion, testified that her son was in good health prior to the explosion, that he sustained severe burns as a result of the explosion, that he suffered from no other injury or disease, and that he died five days after the explosion and fire. The mother also introduced the coroner’s protocol which was identified by the coroner’s secretary and read to the jury because the coroner was out of state. The portion of the protocol read to the jury was the doctor’s statement that, based upon autopsy, the death was due to second and third degree burns. The court held that this protocol was incompetent evidence without the testimony of the pathologist who performed the autopsy, but that no reversible error was committed by admitting the protocol in evidence because the proximate cause of death was sufficiently proved to be due to the burns suffered by reason of the fire without use of the protocol. Id., p 178.

In Eggiman v. Wise, 56 Ill App2d 385, 206 NE2d 472, an action brought for recovery for wrongful death due to an automobile collision, the defendant contended on appeal that there was not sufficient proof that the death was proximately caused by the accident. The doctor who first treated the deceased testified that he treated the patient for three days after the accident, that the shock was so serious that he did nothing more than sandbag the fractures; that the patient’s condition, including kidney function, rapidly deteriorated over the four-day period; and that the patient was transferred to another hospital which had a kidney machine. The plaintiff submitted no evidence that the intestate suffered any other injury or illness, or had any other physical condition which might have led to his death. The court said at pp 393-394:

“Defendant’s contention is that since no evidence was presented of the further course of treatment at the Iowa City Hospital, or of findings after death (presumably by post mortem) that some other intervening cause could have been the reason for his death. The first treating physician who was called as a witness, testified in answer to a hypothetical question based on his findings and the findings in evidence as to Walgrave, that the death of Walgrave could have proximately resulted from the accident. Defendant contends that since there is a speculative possibility that something such as an intervening heart attack, not directly connected with the accident, might have caused his death, that there was a failure to establish that the accident was the proximate cause of death. We cannot agree with such conclusion, since it is possible, speculatively, in any case where there is no precise post mortem examination or close and continuous observation, to speculate about the possibility of an intervening cause. In absence of specific evidence of any such causation, and on the basis of the record which was presented in this case, the jury were entitled to find and did find that the death of Walgrave proxixnately resulted from the accident. Where a plaintiff makes proof by a preponderance of the evidence and the highest degree of proof available to him, he has discharged the obligation required in a civil case and is not required to make such proof beyond all reasonable doubt. (Woolley v. Hafner’s Wagon Wheel, Inc., 22 Ill2d 413, 176 NE2d 757).”

We find that there was sufficient evidence in the present case to support a finding of a causal connection between the resultant death and the injuries. Dr. O’Kelly testified that Hamel suffered from shock and low blood pressure due to the injuries sustained in the accident; that shock and low blood pressure can cause the kidneys to fail to function and that this can lead to death. The plaintiff testified that her husband had never had any kidney ailment, that she had remained with her husband all the time he was at Barnes Hospital, and that her husband was not involved in any other accident while at Barnes Hospital. We find that the circumstantial evidence of the cause of death was sufficient to permit the jury to find that the death was the result of the injuries sustained.

For the foregoing reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.