author: PRESIDING JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronald R. Burdick, Defendant-Appellant.
    Gen. No. 69-35.
    Second District.
    December 5, 1969.

      John R. Snively, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, for appellee.
   PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

The defendant entered a plea of guilty to the offense of aggravated incest. Upon denial of his motion for probation, he was sentenced to a term of from 5 to 15 years in the penitentiary.

On appeal it is contended that his waiver of indictment was void; that he was not properly admonished by the court prior to the acceptance of his plea of guilty; and that the court abused its discretion by not allowing the motion for probation and by imposing an excessive sentence.

The record discloses that a criminal complaint, signed by the defendant’s wife, charged him with aggravated incest in that he knowingly had sexual intercourse with his five-year-old stepdaughter. Upon being returned to this jurisdiction from Arizona, he voluntarily gave a written confession. Thereafter, a preliminary hearing was had, wherein the court explained the nature of the charge and defendant’s right to counsel. At the same time, an indigency hearing was had, the public defender was appointed, bond was set and the hearing was continued. Upon resuming the hearing, probable cause was found and the defendant was bound over to the grand jury.

On January 5, 1968, prior to any grand jury proceedings, the defendant, his counsel and the State appeared before the general division of the trial court. The State requested leave to file an information and the following appears from the record:

THE COURT: “Do you know what it means to waive the intervention of the Grand Jury?”
THE DEFENDANT: “Yes. Mr. McNamara (the Public Defender) explained it to me.”
THE COURT: “I will go over it again. If you don’t waive the intervention of the Grand Jury, then when the Grand Jury meets, the State’s Attorney produces whatever evidence he has against you. And if the Grand Jury are of the opinion there is probable grounds to hold you for trial, then you would be indicted and arraigned and tried under the Indictment.
“Where you waive the intervention of the Grand Jury, then in this case you would be charged with aggravated incest, which is a crime which may be punishable by a term of not less than two or more than twenty years in the penitentiary, or any combination of years not less than the minimum or more than the maximum.
“Now, knowing that, do you wish to waive the intervention of the Grand Jury?”
THE DEFENDANT: “Yes.”
THE COURT: “Let the record show that the defendant has been advised of his rights and the nature of the charge against him. He persists in his waiver of the Grand Jury.
“Leave given to file the Information. . . .”

Thereafter, leave was granted the public defender to withdraw from the case and present counsel was appointed. On April 30, 1968, the following proceedings were had:

THE COURT: “What is your Motion today?”
MR. SNIVELY: “I was appointed to represent the defendant, Your Honor, and I now appear before you and ask leave to withdraw a plea of not guilty and enter a plea of guilty.”
THE COURT: “Before I accept your plea of guilty, it is the Court’s duty to inform you that you have a right to trial by a jury of twelve people, selected from the County, the right to have all of the witnesses who appear against you appear in open Court in your presence and testify, the right to put on whatever defense you might have, and the right to have the jury pass upon your guilt or innocence.
“Where you enter a plea of guilty, you waive your right to trial by jury, and the matter is then left up to the Judge alone. On your plea of guilty the Court might sentence you to the penitentiary for a period of years not less than two or more than twenty.
“Do you understand that?”
THE DEFENDANT: “Yes, Your Honor.”
THE COURT: “And I want it known, I want you to be advised, that I will accept your plea of guilty with the understanding that there has been no promises or anything else given to you.”
THE DEFENDANT: “Yes, sir.”
THE COURT: “Is that true?”
THE DEFENDANT: “Yes, sir.”
THE COURT: “Nobody has attempted to promise you what might happen on your plea of guilty?”
THE DEFENDANT: “No, sir.”
THE COURT: “Let the record show that the Court has advised the defendant of his rights and the consequences of his plea of guilty, he persists in his plea of guilty, the Court accepts his plea of guilty to the Information. . . .”

After several continuances, requested by the defendant, a hearing was had on the motion for probation. Witnesses for both the prosecution and defense testified. At the close of the proofs it was stipulated that the testimony introduced would stand as and for the evidence in aggravation and mitigation of the charge. The trial court thereupon denied the motion for probation and sentenced the defendant.

With regard to defendant’s first contention, Rule 401 (a) (b) of our Supreme Court governs the procedure for the waiver of indictment and the entry of a plea of guilty. Paragraph (a) concerns itself with the waiver of an indictment and paragraph (b) concerns itself not only with the waiver of indictment but also with the waiver of counsel and the entry of a plea of guilty. These paragraphs must be taken in conjunction when applied to the waiver of indictment. The pertinent portion of paragraph (a) is that the accused be “. . . advised of the nature of the charge and of his rights as hereinafter set forth . . . .” His further rights, found in paragraph (b), are that “. . . "the accused understands he has á right to be held to "answer for the offense on indictment by a grand jury and has under standingly waived that right and consented to his prosecution by information. . . .”

We find no merit in the defendant’s contention that his waiver of indictment was void. The trial court properly informed the defendant of his right to have the grand jury presented with the State’s evidence against him. He was also properly advised of the nature of the charge when the court expressly stated that, if he waived the intervention of the grand jury, “. . . you would be charged with aggravated incest . . . knowing that, do you wish to waive the intervention of the Grand Jury?”, to which the defendant replied, “Yes.” See People v. Carter, 107 Ill App2d 474, 477, 246 NE2d 320 (1969); People v. Davis, 103 Ill App2d 239, 241-242, 242 NE2d 609 (1968); People v. Harden, 78 Ill App2d 431, 444-445, 222 NE2d 693 (1966). In addition, the defendant was informed of the nature of the offense from a copy of the information proposed to be filed as well as an explanation of the charge when he appeared at the preliminary hearing. The People v. Harden, 38 Ill2d 559, 561, 232 NE2d 725 (1967). It must be kept in mind that, at this time, the defendant was only waiving his right to be indicted and was not entering a plea of guilty. Each admonishment serves a different function. People v. Davis, supra.

Some four and one-half months later, the defendant appeared before the court and withdrew his plea of not guilty. Before accepting his offer to plead guilty, the court again admonished the defendant of his rights and of the effect a plea of guilty would have, if accepted. Section 113-4 of the Criminal Law and Procedure (Ill Rev Stats 1967, c 38, § 113-4 (c)) supplemented by Supreme Court Rule 401(b) sets forth the procedure to be followed. Taken together, they require that the accused understands the nature of the charge against him, the consequences if the plea of guilty is accepted, the punishment that may be imposed and that he understandingly waives his rights. We are of the opinion that the defendant was properly admonished prior to the court’s acceptance of his plea of guilty.

It is argued that the nature of the charge against him was not given at the time of accepting the plea. This is admitted; however, it is not fatal in this case. As stated previously, the charge was initially explained to the defendant at his preliminary hearing, he was again apprised of the charge through a copy of the information and, lastly, he was informed of the charge at the time he waived indictment by the grand jury. We feel that the essentials of the rule have been met. See, The People v. Doyle, 20 Ill2d 163, 165-167, 169 NE2d 250 (1960). Both the complaint and the information stated that the defendant had sexual intercourse with a named person, knowing her to be his daughter. Elaboration on this simple language would not, in our opinion, make it more understandable. People v. Davis, supra.

Defendant argues that the cases of The People v. Washington, 5 Ill2d 58, 61-62, 124 NE2d 890 (1955) and McCarthy v. United States, 394 US 459, 22 L Ed2d 418, 89 S Ct 1166 (1969) almost parallel the instant case. While there may be some degree of similarity, we are of the opinion that there exist important distinguishing factors between the cited cases and the case at bar. In the Washington case, the court, during the admonishment, never mentioned the nature of the offense or the possible penalty that could be evoked. In the McCarthy case, the Supreme Court, in addition to construing Rule 11 of the Federal Rules of Criminal Procedure, believed from a review of the record that there was a doubt in the accused’s mind with regard to the intent in which the offense was committed. See, The People v. Mims, 42 Ill2d 441, 444, 248 NE2d 92 (1969). In the case at bar, we have no doubt the defendant understood the nature of the offense for which he was being charged.

While matters subsequent to the acceptance of a plea of guilty have no relevancy and cannot relate back to cure an improper admonishment, it is appropriate to note that during the hearing on probation, in addition to the defendant’s confession being introduced and while the defendant was on direct examination, the following appears of record:

Q. “After you returned to Rockford and while you were on bail, did you have any contact with the Mental Health Society in Rockford?”
A. “Yes, I did.”
THE COURT: “Are you putting in an insanity defense here?”
MR. SNIVELY: “No, just to show they have agreed to accept him for treatment there in the Mental Health Clinic.”
THE COURT: “Is there any question about him knowing what he is charged with and the nature of the charge?”
MR. SNIVELY: “No.”
THE COURT: “Is he able to cooperate with counsel?”
MR. SNIVELY: “Yes, sir.”
THE COURT: “I mean, is there any doubt about that?”
MR. SNIVELY: “No, no, no.”
THE COURT: “All right.”

It is next contended that the trial court abused its discretion by denying the defendant probation. A defendant has no inherent, constitutional or statutory right to probation. People v. Smith, 62 Ill App2d 73, 76, 210 NE2d 574 (1965). The granting or denying of probation rests within the discretion of the trial court and will not be disturbed unless it is clearly abused. People v. Smice, 92 Ill App2d 83, 86, 234 NE2d 47 (1968). A review of the record in this case reveals no abuse of discretion on the part of the trial court in refusing to admit the defendant to probation.

Finally, it is argued that the sentence imposed is excessive. The statute provides a penalty of from 2 to 20 years (Ill Rev Stats 1967, c 38, § 11-10). The trial court was of the opinion that the crime was vicious and it would be unsafe for the defendant to be in proximity to small children. The burden of presenting mitigating circumstances in the record is upon the defendant and he must make a substantial showing in order to justify a reduction of sentence on review. The People v. Nelson, 41 Ill2d 364, 367, 243 NE2d 225 (1968). In the same case, the Supreme Court reaffirmed the previously set forth guidelines in regard to reduction of sentences, when it said at page 368:

“We laid some guide lines with respect to the exercise of the right to reduce punishment at the appellate level in People v. Taylor, 33 Ill2d 417, 424, in the following language: ‘We believe that under the now applicable statute granting reviewing courts the power to reduce sentences imposed by trial courts where circumstances warrant (Ill Rev Stats 1963, chap 38, par 121-9 (b) (4),) [since repealed and superseded in identical language by our Rule 615 (b) (4), (36 Ill2d 182) ] such authority should be applied with considerable caution and circumspection, for the trial judge ordinarily has a superior opportunity in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed than do the appellate tribunals.’ ”

A review of the record in the instant case does not exhibit a substantial showing on the part of the defendant to justify a reduction of the sentence imposed.

The judgment of the circuit court of Winnebago County is affirmed.

Judgment affirmed.

DAVIS and SEIDENFELD, JJ., concur.


source: Caselaw Access Project

author: ALLOY, J.

license: Public Domain

text:
    Lydia G. Van Winkle, Plaintiff-Appellee, v. Firestone Tire and Rubber Co., Defendant-Appellant.
    Gen. No. 69-64.
    Third District.
    December 5, 1969.

      James E. Kelley, and William C. Davidson, of Lane & Waterman, of Davenport, Iowa, for appellant.
    Marshall E. Douglas, Jackson & Douglas, of East Moline, for appellee.
   ALLOY, J.

This is an appeal from a judgment of the Circuit Court of Rock Island County in the sum of $359.03 as against defendant Firestone Tire and Rubber Co. and in favor of plaintiff Lydia G. Van Winkle. The action was predicated on an alleged breach of warranty by defendant in selling plaintiff a retreaded tire which it is contended blew out and caused the accident. The case was heard by the court without a jury.

Plaintiff Lydia G. Van Winkle and her husband bought five retreaded tires on September 16, 1966, from a Firestone Store in Moline, Illinois. Defendant placed the tires on the rims and then put the tires on the 1960 Oldsmobile owned by the purchasers. Plaintiff’s husband signed the retail installment contract for the purchase of the tires. During the following seven days, plaintiff testified that she drove the car between 50 and 100 miles, and did not, to her knowledge, drive over any unusual roads or surfaces. Plaintiff’s husband also drove the car during the week, but the husband did not testify in the case.

On September 23, 1966, a week after the tires were purchased, plaintiff was driving down a hill on 41st Street in East Moline. Plaintiff’s testimony was that she was driving down this hill at about a speed of 35 miles per hour and that, in her words, “the tire blew out—I lost control—I couldn’t handle the car at all.” The automobile swerved going down the hill and the left side of the automobile went up over a 12-inch concrete embankment. The vehicle then came back over the embankment and proceeded on down the hill to an intersection where it spun around facing back up the hill and finally came to a stop. In testimony of the plaintiff with respect to her speed after the tire blew out, plaintiff testified that her foot kept hitting the accelerator instead of the brake and she thus speeded up. She still felt that she was going less than 60 miles per hour down the hill and into the intersection. An investigating police officer testified that plaintiff told him after the accident that her left rear tire had blown out. He observed at the accident scene that the left rear tire was flat. Plaintiff took the tire back to the Firestone Store the day following the accident, and at the trial of her action for damages, plaintiff testified that Firestone “offered only the tire and rim.” Defendant objected to any evidence showing an offer by Firestone to replace the tire and rim. Plaintiff’s damages totaled $359.03.

Plaintiff’s action was based upon an implied warranty of defendant that the tire was free from defects. The complaint alleged that there were, in fact, defects in the construction and workmanship of the tire and that “said defects being that the tire suddenly deflated from holes in the sidewalls.” At the trial, the only testimony for plaintiff was her own. Defendant presented two investigating police officers as its only two witnesses. Testimony of plaintiff was as to the circumstances of the accident hereinabove referred to, and plaintiff also admitted that she pleaded guilty to a speeding charge which was filed against her as a result of the accident. One of the police officers who testified estimated plaintiff’s speed at the top of the hill prior to the accident at 50 to 60 miles per hour (when the officer passed plaintiff as he was going in the opposite direction).

Plaintiff offered in evidence the photograph of a tire which showed a “big knot” on the tire. Plaintiff testified that this was a picture of one of the other of the five tires which were purchased from defendant on September 16, 1966, but not the other one which blew out. Over objection of defendant the photograph was admitted into evidence. Plaintiff was also permitted to testify, over objection, that the other tires went bad, with a knot on them like the one in the picture. Plaintiff also introduced into evidence the tire in question which plaintiff alleged blew out while she was going down the hill. Defendant moved for judgment in favor of defendant at the close of the plaintiff’s evidence and at the close of all the evidence.

It is clear that there was an implied warranty of fitness of the tire for a particular purpose and for use on the automobile (1967 Ill Rev Stats, c 26, par 2-315). The theory of products liability announced in the case of Suvada v. White Motor Corp., 32 Ill2d 612, 210 NE2d 182, was not essential to the maintenance of the action by plaintiff in the present case since there is no question as to privity of contract, as plaintiff and her husband were direct purchasers of the tire from the defendant. Plaintiff’s right to recover did not depend alone on the products liability doctrine referred to in the Suvada case.

To recover for breach of an implied warranty of fitness for a particular purpose, a plaintiff must show that he or she had made known to the seller the purpose for which the article was purchased and that the purchaser relied upon the seller’s skill or judgment (Kirk v. Stineway Drug Store Co., 38 Ill App2d 415, 187 NE2d 307). The plaintiff must then show affirmatively that there was some defect in the article sold which rendered it unfit for that purpose and that damage resulted from such defect. In Kirk v. Stineway Drug Store Co., supra, plaintiff had purchased a new stepladder from the drugstore. The third time she used the ladder it collapsed, and she fell injuring herself. The court first determined that the purpose for which she purchased the article was known and then examined into the question as to whether there was proof of defects or imperfections in the ladder itself. The court stated that from an examination of the ladder which was placed in evidence there were imperfections in its construction which could be clearly seen (a failure to install a safety cleat). It is thus clear that, in this State, to recover on a theory of implied warranty of fitness for a particular purpose, a purchaser must make proof of a defect in the article. This is true even in such cases as Knab v. Alden’s Irving Park, Inc., 49 Ill App2d 371, 199 NE2d 815, where the damage resulted from burning of trousers worn by a child. There was expert testimony in that case showing the highly inflammable quality of the material in the pants and this was the defect which was the basis of the breach of warranty.

In applying the principles involved in cases treating breach of implied warranty of fitness for a particular purpose, we note that in all cases a showing must be made of a defect in the article purchased which results in the damage complained of. We have examined the record in the case before us and we find no evidence of any defect in the tire which blew out. The fact that the tire blew out is not in itself proof that there was a defect in the tire.

While plaintiff testified that she had not driven the car over any unusual surfaces, her ex-husband drove the automobile at times without plaintiff and he did not testify as to what happened when he drove the car. There is a possibility that damage to the the could have resulted from actions of the ex-husband in driving the automobile. The offer of the blown-out tire into evidence alone with no testimony which pointed out or designated defect in the tire which would cause it to blow out, did not sufficiently establish proof of a defect and the basis for action for breach of warranty. If plaintiff or an expert could have pointed out a defect in the wall of the tire which caused it to blow out, this would have met the test. It is the contention of the plaintiff that the photograph of one of the other tires which had been purchased which showed a bubble on the tire was sufficient to show a defect in the tires. Even assuming that it was appropriate to admit such photograph into evidence, there was no showing as to how long after the accident the photograph was taken and when the bubble developed in the other tires. On the basis of the record, the bubble may have resulted from the fact that the automobile went over a 12-inch curbing. Suffice to say, there was no showing that the bubbles developed in any of the tires prior to the accident in question.

In Shramek v. General Motors Corp., 69 Ill App2d 72, 216 NE2d 244, recovery was sought for injuries resulting from a blowout of a tire which caused an accident. The court in that case, at page 78, stated:

“. . . the cornerstone of plaintiff’s cause of action is the existence of a defect in the tire at the time it left the control of the manufacturer or seller. Without this proof his case must fall.
“. . . the tire in question was never subjected to an examination which would reveal that the blowout was due to a preexisting defect. Thus, without any examination of the tire designed to elicit the cause of the blowout and without the tire itself or any hope or expectation for its recovery, plaintiff could never prove, directly or inferentially, a case of negligence, breach of warranty or strict liability.
“The mere fact of a tire blowout does not demonstrate the manufacturer’s negligence, nor tend to establish that the tire was defective. Blowouts can be attributed to myriad causes, including not only the care with which the tires are maintained, but the condition of the roads over which they are driven and the happenstance striking of damaging objects.”
“Plaintiff contends, however, that although he does not have the tire, nor any expert testimony as to the cause of its blowing out, he should be allowed to take his case to the jury. We disagree. On such a record, a jury would have no basis to determine whether the tire was defective when it left defendants’ control and whether that defect ultimately caused plaintiff’s injuries. Under such circumstances, it is manifest that plaintiff did not raise genuine issues of fact as to these material elements of his case.”

The only manner in which the instant case differs from the Shramek case referred to is that the blown-out tire was offered in evidence, while the tire was not available in the Shramek case. This, however, would not affect the result since there was no evidence of any defect in the tire other than the fact that it had blown out. It is thus apparent that regardless of the theory upon which the plaintiff is proceeding there must still be a showing of a defect in the article involved.

The admission of the photograph of one of the other tires purchased from defendant showing a bubble in the tire was improper since there was no showing that a bubble was the cause or related to the cause of the blowout or that it existed prior to the time the automobile hit the 12-inch concrete abutment. The case of Sweeney v. Matthews, 94 Ill App2d 6, 236 NE2d 439, is not authority for admission of such evidence. In that case, a carpenter was injured when a nailhead broke off and flew into his eye as he was driving the nail. Evidence of metal'tests made on other nails in the same sack was allowed to show a defect in the metal causing brittleness in the nail which broke off injuring plaintiff. It is clear that the defect in the other nails was the same as the defect which caused the nail to break. In the case before us, there is no such connection shown between the bubbles on the other tires and the blowout of the tire in question.

It was proper, however, to admit the actual blown-out tire into evidence since it was shown that it was in custody of plaintiff and her attorney from the time of the blowout until the tire was presented into evidence. Unfortunately, however, the mere admission of the tire itself did not establish the existence of a defect which could have caused a blowout. There was no testimony or other evidence on this issue.

The record, therefore, does not support the judgment in favor of plaintiff. The judgment entered in this cause is, accordingly, reversed, and the Circuit Court of Rock Island County is directed to vacate and set aside such judgment, and to enter judgment in this cause in favor of defendant.

Reversed.

STOUDER, P. J. and RYAN, J., concur.


author: TRAPP, P. J.

text:
    In the Matter of the Conservatorship of Lloyd H. Baker, an Incompetent. The John Warner Bank, a Corporation, Conservator of the Estate of Lloyd H. Baker, an Incompetent, Petitioner-Appellant, v. Claud Kellerhals, Respondent-Appellee.
    Gen. No. 11,088.
    Fourth District.
    December 8, 1969.

      Herrick, Rudasill & Moss, of Clinton (Ray Moss, of counsel), for appellant.
    Summers, Watson & Kimpel, of Champaign, for appellee.
   TRAPP, P. J.

The petitioner, The John Warner Bank, Conservator of the estate of Lloyd H. Baker, an incompetent, appeals from an order of the Circuit Court denying its petition for an order on respondent, Claud Kellerhals, which would compel him to return property of the incompetent, or if converted to pay the value thereof in the amount of $32,189.13. The court quashed the citation and denied a post-trial motion.

Petitioner contends that the trial court should have found that a fiduciary relationship existed between the incompetent and Kellerhals. The petition was founded upon chapter 3, §§ 183-185, Ill Rev Stats 1965. It is held that such sections do not authorize proceedings for the collection of a debt. Dawdy v. Strickland, 378 Ill 230 at 234, 37 NE2d 817; Johnson v. Nelson, 341 Ill 119, 173 NE 77. Such citation proceeding may be used, however, if a fiduciary relationship exists. In re Estate of Willich, 338 Ill App 289, 87 NE2d 327; In re Estate of LaRue, 53 Ill App2d 467, 203 NE2d 47.

An order in a previous citation proceeding was reversed for the reason that such petition was framed as a petition for discovery only. In re Conservatorship of Baker, 79 Ill App2d 234, 223 NE2d 744.

The conservator was appointed pursuant to a petition on August 13, 1964. This second petition for citation alleges Kellerhals obtained money from Baker in several transactions between March, 1960, and September, 1961.

It appears that Lloyd H. Baker in March of 1960 had a bank balance of $17,295.99. He was then 70 years old. Between March 22 and August 9 of 1960, Mr. Baker, in three checks, paid a total of $16,500 to respondent Kellerhals. In September of 1961 Baker cashed $15,000 of H Bonds and paid $10,500 to Kellerhals in two checks. In October of 1961 Baker cashed $5,000 of H Bonds. In March and July of 1961 Baker paid Kellerhals $5,090 in two checks. Respondent Kellerhals admits receiving this total of $32,090.

Petitioner admits that Kellerhals repaid Baker $11,500 in five payments as follows:

February 5,1963 $6,000

March 12,1963 4,000

October 7,1963 500

April 6,1964 500

June 8,1964 500

Respondent, Kellerhals, states that the payments to him were loans, that a note was given for each payment, that all have been repaid, and that the notes have been destroyed. Respondent exhibited a receipt and checks in the total amount of $36,070. The receipt in the sum of $3,805 equalled the total of check payments alleged to have been made to that date. The eight checks to that date were simply checks to cash. One $500 payment was evidenced by a check stub only. One additional check for $1,000 was to cash. One check, payable to Baker, in the amount of $710, and fourteen checks in the total amount of $16,750 made out to cash, but also endorsed by Baker, were pronounced forged endorsements by a handwriting expert. The handwriting expert also pronounced the receipt a forgery.

All of the payments which were admitted, were deposited in Baker’s bank account. None of the payments which were pronounced forged endorsements are represented by a deposit in the Baker bank account.

The testimony of the handwriting expert to the effect that the questioned endorsements were not made by Lloyd H. Baker, and the demonstrative photographic evidence supplied by him are convincing.

Respondent Kellerhals testified that he agreed to pay interest at 6 percent per annum, but none of the alleged payments appears to have any correlation to the usual interest payment. Respondent obtained one $1,500 note and one $4,000 note from Baker, but no evidence of the disbursement of these sums was presented.

Petitioner contends that Lloyd H. Baker was persuaded to part with the money for the purpose of having respondent make loans for Baker to certain farmers at 7 percent interest, and that, thus, respondent was Baker’s agent. Petitioner produced some exhibits in Baker’s handwriting giving the names of five persons, definite dates and definite amounts of purported loans. Petitioner also produced one exhibit which appeared to be in respondent’s handwriting containing the same names, dates and amounts. Also, the figure 7 appeared below these names. Respondent was asked if he wrote the list which appeared to be in his handwriting. His answers were, at best, extremely evasive.

Lloyd H. Baker was called as a witness. On cross-examination he did admit that the alleged forged signatures were his, that notes had been given for all the loans and that the loans had been repaid. He also retracted the statement about the endorsements and said they were either his signature, or his signature had been traced. He also said he did not sign that many receipts. He said respondent had given him a strong box with a key, that the notes given him for the money were kept in the strong box, and that the strong box was kept in Kellerhals’ office. He was almost 80 years old at the time of the trial, had difficulty with his vision, and had difficulty in understanding the questions. A reading of his testimony shows that an examiner or cross-examiner could lead him.

Neither in this hearing, nor in the record of the previous cause before this court, was there any evidence of the competency of Lloyd H. Baker at the time the money was disbursed in 1960 and 1961. There was no testimony concerning an agency. There was no testimony that respondent was to lend to farmers for Baker, or to have the notes made to Baker, or to keep securities for Baker or deliver them to him. Certain repayments were made as in the ordinary course of a loan from Baker to Kellerhals.

The trial court found that there was no evidence of a fiduciary relationship, and that all of the other evidence simply went to the question of repayment. Since the trial court found it was without jurisdiction under the petition to try an ordinary case of debt collection, the order was simply to dismiss the citation.

A petition to recover property under sections 183-185 of chapter 3, Ill Rev Stats assumes title to property to be in the ward or decedent. It is held that title to money passes where the transaction is a loan. Johnson v. Nelson, 341 Ill 119, 173 NE 77. The trial court was correct in holding that in the absence of any evidence that respondent was to manage property for Lloyd H. Baker instead of simply borrowing from him, and in the absence of evidence that respondent took advantage of Lloyd H. Baker at the time of obtaining the money, and in the absence of any evidence of prior dealings, he could not find an agency or a fiduciary relationship.

The trial court made no finding on the issue of forgery of the alleged endorsements on the alleged repayments. Even if he found that the endorsements were not genuine, it would not give him jurisdiction to enter judgment for a balance due in this proceeding under the decisions hereinbefore referred to.

It is contended that the court erred in refusing to permit examination of respondent as to whether he had represented to Lloyd H. Baker that respondent was making loans to third parties with money of William T. Baker, the brother of Lloyd H. Baker. Without detail as to whether respondent was acting as a broker or in some other capacity than simply borrowing from William T. Baker, the evidence would have no tendency to prove whether the Lloyd H. Baker arrangement was an agency or a debtor-creditor relationship.

Complaint is also made that testimony of respondent in reference to his previous testimony regarding a list of names of persons to whom loans had been, or would be made, was not taken as an admission. We have previously referred to this testimony as evasive. It was impeaching, but it was not an admission.

The judgment of the Circuit Court is not a judgment on the merits of the account between the parties, but simply a judgment quashing the citation for want of evidence of a fiduciary relationship.

The judgment of the Circuit Court is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


author: CREBS, J.

text:
    Country Life Insurance Company, an Illinois Corporation, Plaintiff-Appellant, v. Bernadine C. Goffinet, Defendant-Appellee.
    Gen. No. 11,102.
    Fourth District.
    December 8, 1969.
    Rehearing denied January 28, 1970.

      Greanias & Owen, of Decatur (Robert D. Owen, Marshall A. Susler, and Jeffrey C. Taylor, of counsel), for appellant.
    Rosenberg, Rosenberg & Bickes, of Decatur (Emanual Rosenberg, Joseph L. Rosenberg and Wayne L. Bickes, of counsel), for appellee.
   CREBS, J.

Plaintiff, Country Life Insurance Company, brought action for declaratory judgment. It sought a determination that its insured, J. Everett Goffinet, did not die as a result of accidental injuries within the meaning of its insurance contracts. After answer was filed, plaintiff moved to dismiss the suit. This motion was denied. Cause was tried by a jury which returned a verdict in favor of the defendant, Bernadine Goffinet, beneficiary under said contracts. This appeal is from that verdict and the judgment entered thereon.

On review the appellant alleged error in the following matters: the sufficiency of the evidence, the ruling on the motion to dismiss, the rulings on admission of evidence, and the instructions to the jury.

J. Everett Goffinet, aged 58, was found dead in his home at approximately four o’clock January 12, 1967. Earlier that day he had been active and in apparent good health. He had a laceration and abrasion over the left eye and the bridge of his nose and some scratches on his fingers, where he wore a large ring. He had no such marks upon his face or hands when last seen alive about an hour and a half earlier. The coroner was called and he had an autopsy performed by Dr. Brosius. Dr. Brosius testified that upon opening the cranial cavity, he was able to view a hairline fracture in the middle of the cranial fossa approximately an inch long, which extended partially up the wall of the orbit on the right side. A small area of hemorrhage was found inside the skull in the area of the skull fracture. In examining the brain stem, he noted a small tumor on the dorsal aspect of the medulla oblongata, which he described as an astrocytoma, grade two. The tumor was the size of a pencil eraser. Grade indicates the rate of growth of the tumor, grade two being a tumor that grows slowly. An examination of the tumor showed nothing indicating any hemorrhage or sudden increase in size or swelling that was of recent origin. Dr. Brosius gave his opinion as to the cause of death as cerebral concussion. He further stated that, in his opinion, the injury to the skull was traumatic in origin and that decedent lived for at least a short period after receiving the blow as indicated by the development of the swelling.

There was other medical testimony. One doctor called by plaintiff gave his opinion that the cause of death was the astrocytoma. There was a great deal of conflict in the evidence as to certain points and the conclusions that could be drawn therefrom. There was evidence that the deceased had experienced no previous difficulty as a result of the astrocytoma. Decedent was found undressed in bed. The house was in order. There was medical testimony that the blow, which caused the skull fracture, would render decedent unconscious.

Plaintiff argues that there is no evidence of any accident to Mr. Goffinet and no set of circumstantial facts from which any such accident can be inferred. We disagree. When a person in apparent good health who is actively carrying on his usual affairs is found after an interval of an hour and a half, dead with his skull fractured, an accident can readily be inferred. In addition to these physical facts, some of the medical testimony supports the jury’s verdict. It is not necessary that all the evidence be accepted and reconciled by the jury. The jury heard the witnesses and it is their function to determine which witnesses are worthy of belief. We find that there was sufficient evidence for the case to go to the jury and that their verdict is not against the manifest weight of the evidence.

As regards the refusal of the court to allow plaintiff to dismiss the action, it is the position of the defendant that in a well pleaded action for declaratory judgment, an answer is a counterclaim. It would appear that it should be so treated in this case. The answer filed by defendant concluded with a prayer for the relief which was actually granted.

Plaintiff, on cross-examination of Dr. Brosius and Dr. Glenn, attempted to show that an astrocytoma would cause death. The court sustained objections to this testimony. We find this ruling to be correct. The matter in issue was the cause of death. The fact that this tumor would eventually cause death was not material and could be prejudicial matter to bring before a jury. Dr. Glenn was asked on cross-examination to assume facts not in evidence and answer hypothetical questions based on such facts. Objection to these questions was sustained even though it was suggested that evidence of these facts would be forthcoming. However, there was no formal offer of proof as to this testimony. The court refused an offer of proof of certain testimony of Dr. Voris. Dr. Voris had previously testified that in his opinion the astrocytoma was the cause of death; thus, the error, if any, in this ruling was not reversible error. Objection is also made to the refusal of the court to allow impeachment of witness David Eankin as to the place where he made a phone call. Under the circumstances, it was not material where the call was made and the court properly refused to allow the attempted impeachment on an immaterial statement. Plaintiff also alleges that the court erred in refusing to reopen the case during the conference on instructions to allow them to introduce the double indemnity certificates in evidence. The right to reopen after resting is in the sound discretion of the court. We find no abuse of discretion here.

Appellant has further objected to the refusal of three of its tendered instructions and the giving of three of defendant’s instructions. We will comment on these briefly. Plaintiff’s No. 2 and No. 5 contain elements concerning which there is no proof in the record. Plaintiff’s No. 5 also contains the exact language of the insurance policy, which is not a plain and concise statement. Plaintiff’s No. 6 singles out one point and concludes “cannot recover and your verdict should be for . . . .” It was properly refused. Of the given instructions, Defendant’s No. 17 is to the same effect as the issues instruction given the jury on voir dire by agreement and Plaintiff’s No. 1. Hence, plaintiff is precluded from objecting. Defendant’s No. 16 properly states the presumption against suicide. The suicide issue was injected into the trial , even though there is no real evidence thereof. In such a situation defendant is entitled to have the instruction given. Defendant’s No. 8 requires a preexisting disease or infirmity to be a proximate cause of the death if it is to prevent the death being accidental. Taken in connection with the other instructions, we find that the jury was properly instructed in this case.

Finding no reversible error, judgment is affirmed.

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


author: CRAVEN, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Nathaniel Scott, Defendant-Appellant.
    Gen. No. 11,139.
    Fourth District.
    December 8, 1969.

      Glenn O. Fuller, Assistant Public Defender, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur (Garry E. Davis, Assistant State’s Attorney, of counsel), for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

Having waived indictment, an information was filed charging the defendant with the armed robbery of the Imperial 400 Motel in Decatur, Illinois. A jury trial resulted in a verdict of guilty. The defendant was sentenced to the Illinois State Penitentiary for a term of not less than seven nor more than fourteen years. The defendant appeals, contending that the evidence was not sufficient to establish his guilt beyond a reasonable doubt. He also asserts the sentence as imposed by the trial court is excessive and seeks its reduction.

At around 11:00 p. m. on October 31, 1967, a man entered the Imperial Motel in Decatur. Mildred Werndler, a clerk in the motel, had been watching television in the reception area. As she walked behind the counter he followed her, pulled a gray automatic pistol and instructed her to go to a back room. When she informed him that there was a party going on in that room, he instructed the clerk to show him the cash drawer. She did so. He instructed her to look out the window, he took the money from the cash drawer, then compelled the clerk to walk with him out of the motel and told her to walk to the end of the parking lot. As she did so, he turned and ran. The clerk returned to the motel and reported- the incident to the manager.

Mrs. Werndler, in her testimony, described the robber—the clothing worn by him, with particular reference to a “slight mustache” and “slicked down” and combed “straight” back hair, and other physical features. At first she was unable to express an opinion as to his age but later stated his age to be in his late or mid-thirties. She was cross-examined and stated that she had only glanced at the man and was basing her identity and description upon his build and the opportunity she had to see his face when she turned around just as he followed her behind the counter. She also testified with reference to having seen his reflection in a plate-glass window while he was emptying the cash drawer. A police officer, Roger Davis, called as a witness for the People, described a lineup held at the Decatur Police Department on October 25, 1968, at which time Mrs. Werndler saw the defendant. Mrs. Werndler identified the defendant at the trial.

One Linda Mabon, with whom the defendant was living at the time of and prior to the robbery, testified that she was in the defendant’s automobile (which was described) as he drove by the motel. She testified that he told her he was going to rob the motel and that he was looking it over to ascertain a means of a fast getaway from the premises. They then returned to her apartment and shortly thereafter he left and returned in about an hour, stating that he had robbed the motel. She further testified that she owned a small gray automatic pistol and that the defendant had the pistol with him on the night in question. She was further cross-examined as to the defendant’s appearance in October of 1967 compared to his appearance at trial.

The defendant testified in his own behalf and denied his guilt.

One Yvonne Rawls also testified for the defendant. She stated that she was “going with him” in October of 1967; that she saw him “About every other day”; that he did not have a mustache during that period; that he had a missing front tooth; and she described the manner in which he groomed his hair, which was different from the description given by Mrs. Werndler.

Although we have not detailed the evidence, we have recited the essentials of the testimony to establish that this is a classic case wherein the trier of facts must determine credibility of witnesses and the weight to be given the testimony of witnesses. This court, on review, cannot substitute its judgment for that of the jury in the absence of a reasonable doubt as to the defendant’s guilt. People v. Slifer, 108 Ill App2d 275, 247 NE2d 174 (4th Dist 1969). Our review of this record establishes no such doubt.

Finally, the defendant contends that the sentence imposed by the trial court is excessive and should be reduced on appeal. The Code of Criminal Procedure of 1963, section 121-9 (b)(4) (SHA, c 38, § 121-9 (b) (4)), contained a grant of authority to reviewing courts to reduce the punishment imposed by a trial court. That provision, now found as Supreme Court Rule 615 (Ill Rev Stats 1967, c 110A, § 615(b) (4)), was originally incorporated into the Code so that a reviewing court would have power to do complete justice when a case is before it and thus avoid retrials and delay, and presumably to avoid not only the subterfuge but also the necessity of making bad law to meet hard cases—at least this latter point is asserted by some writers (Rubin, The Law of Criminal Correction, p 148 (1963)). The Supreme Court has made it clear that use of this new grant of authority by reviewing courts is to be with considerable caution and circumspection. People v. Taylor, 33 Ill2d 417, 211 NE2d 673 (1965).

The authority to reduce the punishment imposed by the trial court should not be used as a form of judicial clemency nor should it be used by an appellate tribunal to substitute its judgment as to the appropriate penalty for the judgment of the trial judge. If, however, such authority is utilized only when a sentence exceeds the statutorily authorized sentence, or where a sentence is clearly so excessive as to constitute a great departure from the spirit and purpose of the law or is oppressive, then we will have, by indirection, condoned disparate sentencing and thereby frustrated the intent and promise of appellate review of sentences incorporated in the Code of Criminal Procedure. A provocative article—Halperin, Appellate Review of Sentence in Illinois—Reality or Illusion ?, 55 Ill BJ 300 (Dec. 1966), reviews in detail the cases decided to the date of the article. The article concludes (at 313):

“. . . It may well be that a case-by-case consideration of the merits of each sentence appeal will result in the great majority of sentences being affirmed; . . . but the reasons given, if they relate to principles of penology, will still serve as useful guides for trial courts. But reliance on a supposed lack of power to act, or on ‘general rules’ requiring affirmance in all but the most extreme cases, can only give impetus to the movement to take sentencing completely out of the hand of the judiciary. . . .” (Footnotes omitted.)

In this case the defendant is 24 years old. The record indicates a prior history of employment both in Decatur and in Detroit. There is nothing in the record showing any prior criminal behavior of the defendant— at least no prior conviction, either felony or misdemeanor, is shown. An item of aggravating circumstance indicates that a piece of metal was found on the defendant’s person while he was incarcerated. There is controversy with reference to the circumstance, but it is clear that the trial court considered this an aggravating circumstance, and we agree.

Counsel for the defendant strenuously urged that the high minimum in this case is fixed not as punishment for the crime, but as punishment for the crime and the exercise by the defendant of his right to a trial by jury. The trial court, at the time of sentencing, clearly expressed his view that one charged with a criminal offense is “absolutely entitled ... to have a jury determine his guilt or innocence, . . .” and that the exercise of the right should not and would not result in an enhanced penalty. This is a clear statement of an undebatable principle and one with which this court is in accord.

The determination of an appropriate sentence in a criminal case is probably the most difficult decision that trial judges must make. In People v. Jones, 92 Ill App2d 124, 235 NE2d 379 (1st Dist 1968), Mr. Justice Drucker quoted with approval the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures (the then Tentative Draft, 1967, now Approved Draft, 1968), by observing that “ ‘In order to preserve the principle of indeterminacy, the court should not be authorized to impose a minimum sentence which exceeds one-third of the maximum sentence actually imposed/ ” (At 128 of 92 Ill App2d, at 381 of 235 NE2d.) We would view the standard as quoted as only a guide and not as a hard-and-fast rule. Indeed, there may well be factual circumstances that compel deviation from the guide.

The principle to be preserved is that of an indeterminate sentence rather than hard-and-fast adherence to a mathematical formula that may arrive at an indeterminate sentence but does not permit of consideration of individual factors in a particular case.

The minimum sentence measures parole eligibility. The maximum sentence measures the length of time that the inmate may be incarcerated, even without favorable parole consideration. When there is a substantial spread between the minimum and the maximum of a sentence the inmate in the institution can be directed toward academic or vocational training, and favorable prospective parole consideration operates as quite a catalyst. The existence of a substantial spread between the minimum and the maximum ensures the availability to the defendant of supervision after incarceration. The principle of indeterminacy of sentence necessarily leaves to the professionals in the behavioral sciences the determination of the optimum date for release. The court, in fixing the maximum, determines the total length of possible incarceration.

In this case, with no indication of prior criminal propensities, we believe it appropriate that the minimum sentence be reduced from seven to five years. People v. Lillie, 79 Ill App2d 174, 223 NE2d 716 (5th Dist 1967); People v. Jones, 92 Ill App2d 124, 235 NE2d 379 (1st Dist 1968).

The minimum sentence is reduced from seven years to five years. As modified the judgment of the Circuit Court of Macon County is affirmed.

Sentence modified; as modified judgment affirmed.

TRAPP, P. J. and SMITH, J., concur.


author: MR. PRESIDING JUSTICE ADESKO

text:
    Texaco, Inc., Illinois Insulation and Construction Company, and Gilco Scaffolding Company, Plaintiffs-Appellees, v. McGrew Lumber Company, Defendant-Appellant and Third-Party Plaintiff-Appellee. McGrew Lumber Company, Third-Party Plaintiff-Appellee, v. Fred E. Bahr, d/b/a Bahr Lumber Company, Third-Party Defendant-Appellant.
    Gen. No. 51,949.
    First District, First Division.
    December 8, 1969.
    Rehearing denied December 30, 1969.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Karl M. Tippet and Donald W. Garlinger, of counsel), Peterson, Lowry, Rall, Barber & Ross, of Chicago (Henry P. C. W. Barber, Herbert C. Loth, Jr., Sheribel Rothenberg and Norbert J. Wegerzyn, of counsel), for appellants.
    Wildman, Harrold, Allen & Dixon, of Chicago (Bernard Harrold and Jon R. Waltz, of counsel), for appellees.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

This case involves two appeals from a jury trial which resulted in a verdict and judgment against McGrew Lumber Company and the trial court’s directing a verdict for McGrew on its Third-Party complaint against Fred E. Bahr, d/b/a Bahr Lumber Company. For the sake of brevity, the parties will be referred to as McGrew and Bahr, while the plaintiffs will be designated as a group, unless specific reference is necessary.

This action arose from a suit originally filed by Joseph Kovis against the plaintiffs in this cause for recovery under the Structural Work Act, chapter 48, sections 60-69, Ill Rev Stats (1967), filed in August of 1960. Kovis’ suit was for personal injuries he incurred in falling from a scaffold erected by Gilco Scaffolding Company and leased to Illinois Insulation and Construction Company, for work to be performed on an ammonia tank owned by Texaco, Inc. The fall occurred on March 20, 1960, when a plank upon which Kovis was standing broke in two while he was installing aluminum sheets under the direction of his employer, East Chicago Sheet Metal Company.

The pleadings disclose that Gilco filed a third-party complaint against McGrew and the latter asserted a fourth-party claim against Bahr. During the pendency of this cause, Texaco, Illinois Insulation and Gilco, on or about March 21, 1964, entered into a settlement of Kovis’ claim in the amount of $45,000, each party contributing one-quarter, one-half and one-quarter of that amount, respectively. Subsequently, all of these parties were granted leave to amend the counterclaim into a joint counterclaim against McGrew. After various amendments to each of the parties’ pleadings, the cause proceeded to trial in June of 1966, resulting in the instant judgment of $45,000 against McGrew and a similar judgment for that amount in favor of McGrew and against Bahr. The plaintiffs-appellees proceeded against McGrew for indemnity based upon a theory of strict liability for supplying the allegedly defective plank which caused Kovis’ injury and McGrew sought indemnity from Bahr upon an identical theory.

The facts reveal that Gilco, under contract with Illinois Insulation, erected scaffolding at the Texaco jobsite in late 1959 and early 1960. The structure was then rented to Illinois Insulation. On March 20, 1960, some two to two and one-half months later, Mr. Kovis fell from the structure as the result of a plank which broke while he was standing upon it. With regard to the plank, witnesses for Gilco testified that the plank had been ordered from McGrew for this particular job. Several invoices of McGrew Lumber Company were introduced into evidence which revealed that Gilco had ordered rough spruce scaffolding lumber. These same witnesses testified as to the standards for lumber used in the scaffolding industry in 1960, with particular comments concerning the presence of knots in lumber to be used in scaffolding and the process by which the lumber was examined as a structure was erected. Mr. Kovis and several of his fellow employees testified as to the occurrence and also identified several photographs of the plank in question. These photographs reveal a 2" x 10" plank of rough spruce lumber which had cracked in the middle of the board. These same witnesses also identified some discoloration at the point of breaking, which they characterized as a knot or knots of various sizes that extended across the board for some fraction of its width.

The President of McGrew, Robert S. Friedman, identified the invoices of lumber ordered by Gilco. He also stated that McGrew ordered all of its rough spruce scaffold lumber from Fred Bahr Lumber Company and that he ordered this particular type of lumber as indicated by an invoice of Bahr’s which was admitted into evidence. Friedman also testified that after receipt of the lumber from Bahr, it was unloaded, stored, and reloaded when McGrew received an order. According to him, at this time Bahr was MeGrew’s only supplier of this type of lumber and that all the lumber sent to Gilco was from shipments of lumber by Bahr. Mr. Friedman also examined the photographs introduced by plaintiffs and testified that knots were present, although it was difficult to state this accurately. Mr. Bahr testified that he was a lumber broker and that his company did not maintain a lumberyard, nor did any lumber ever come into the possession of the company.

The first issue raised by McGrew contests the liability imposed by the judgment rendered for the plaintiffs. The theory of liability advanced at the trial was a claim of indemnity under a strict liability theory for a defective product, as first expressed in Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182 (1965). McGrew contends that the Suvada theory was not intended to allow indemnity against persons in the distributive chain of a defective product; that in this State indemnity is generally recognized among tort-feasors who have some contractual relationship or their acts can be characterized as active-passive negligence, in order to shift the ultimate burden of liability; that the instant case did not proceed under any contractual theory but rather upon the active-passive theory which necessitated a process of fault weighing among the alleged tort-feasors; and finally that McGrew’s duty and the plaintiffs’ duty to the injured party were identical, i. e., the duty to inspect the lumber ordered and installed upon the scaffold. Thus, McGrew concludes that no indemnity could be given to the plaintiffs, since the law does not allow indemnity among tort-feasors who have been equally negligent with regard to the injured party. In this regard, appellant McGrew relies upon Chicago & Illinois Midland Ry. v. Evans Const. Co., 32 Ill2d 600, 208 NE2d 573 (1965), in which the Supreme Court denied a railroad company’s indemnity claim because no proof was submitted as to the responsible party who committed the culpable act of negligence in placing a railroad tie in such manner as to cause injury, where the same duty was imposed upon both indemnitee and indemnitor. See also Union Stock Yards Co. v. Chicago, B. & Q. Ry. Co., 196 US 217 (1905). The appellant Bahr has joined McGrew in this contention to avoid liability on an indemnity basis.

In response to this contention, the plaintiffs argue that Suvada was an indemnity action. They contend that the rationale and policy considerations of that decision would allow this court to grant indemnity for their claim against those persons in the distributive chain of a defective product. Further, they contend that the policy considerations of Suvada would allow recovery by way of indemnity without any fault-weighing process to determine if one tort-feasor’s negligence can be characterized as passive, while another’s negligence, can be considered active. Thus, plaintiffs-appellees argue that the theory of strict liability is applicable to the suppliers of multipurpose products which are placed in the stream of commerce with the knowledge of the product’s intended use.

We agree with the plaintiffs-appellees’ contention and hold that indemnity was properly awarded against the appellant, McGrew Lumber Company. First of all, there is no dispute among the parties as to the applicability of Suvada to the product involved in this case. Secondly, we are of the opinion that the Supreme Court intended that decision to apply to sellers and suppliers of defective products, as well as the manufacturer involved in that decision. Haley v. Merit Chevrolet, Inc., 67 Ill App2d 19, 214 NE2d 347 (1966). See: Restatement (Second), Torts, Sec 402A and comments. The entire opinion and authorities cited within that decision repeatedly make reference to a “sellers” liability for a defective product which causes injury to an innocent user. Finally, we agree with the plaintiffs’ contention that Suvada intended to eliminate the fault-weighing process of active-passive negligence in determining any grant of indemnity relief. In this respect, the Court stated, at page 624:

“Indemnity here is not, however, premised on any theory of active and passive negligence. (To require proof that Bendix [the indemnitor] was actively negligent would be the antithesis of strict liability.) ”

That last quoted statement directly refutes McGrew’s contention as to the indemnity theory necessary for recovery under strict liability. We are of the opinion that the policy considerations announced by Suvada in imposing strict liability justify the relief of indemnity against persons in the distributive chain, who have placed a product in the stream of commerce with the knowledge of its intended use. In this respect we agree with the following statement from Suvada, at page 619:

“Without extended discussion, it seems obvious that public interest in human life and health, the invitations and solicitations to purchase the product and the justice of imposing the loss on the one creating the risk and reaping the profit are present and as compelling in cases involving motor vehicles and other products, where the defective condition makes them unreasonably dangerous to the user, as they are in food cases.”

This statement manifests a strong public policy that insists upon the distribution of the economic burden in the most socially desirable manner, even to the extent of ignoring the indemnitee’s fault. Sweeney v. Matthews, 94 Ill App2d 6, 236 NE2d 439 (1968). Hence, we concur in the judgment rendered in favor of the plaintiffs’ indemnity claim against McGrew.

The appellant cites the case of Vykruta v. Thomas Hoist Co., Inc., 75 Ill App2d 291, 221 NE2d 99 (1966), in which this court expressed the principle that one who leases machinery and equipment cannot be held liable under the Structural Work Act. In Vykruta, the contractor rented a hoist from the defendant, Thomas Hoist Company, to lift bricks, mortar and other material from the ground floor to the upper parts of the building. The plaintiff rode the hoist and was injured. We believe this case is inapplicable on the facts.

The final contention of McGrew concerns the sufficiency of the evidence with regard to proof of a defect in the plank which caused the plank to break. Concomitant with this evidentiary issue, McGrew also contends that the use of photographs of the allegedly defective plank was improper and the plaintiffs were under a duty to produce the defective plank into evidence. We are not persuaded by either of the appellant’s contentions concerning the evidence in this case.

First of all, several of plaintiffs’ witnesses testified from experience in the field of scaffolding construction with regard to acceptable standards for lumber used in that field. Special attention was given to the presence of knots in a plank which could cause a defect in such lumber. Then the plaintiff produced several witnesses who testified of the breaking of the plank and identified photographs upon which they noted a portion of the plank where knots in the lumber were identified. On the strength of this evidence, we feel that substantial evidence was introduced which would allow the jury to conclude upon the proof of causation.

Secondly, with regard to the contention concerning the photographs used in evidence, the appellant McGrew makes reference to Shramek v. General Motors Corp., 69 Ill App2d 72, 216 NE2d 244 (1966). That case affirmed a dismissal of a complaint because the plaintiff failed to produce a tire which was allegedly defective in causing a blowout that resulted in plaintiff’s injury. The court reasoned that the plaintiff would not be able to prove causation since a blowout could be the result of many causes and without the actual tire, the plaintiff could not demonstrate the defendant-manufacturer’s negligence. We are of the opinion that the Shramek case is not applicable. We believe that the evidence elicited by the photographs of this plank showed that the knots identified by several witnesses were sufficient to indicate a cause for the break in this plank. It was not incumbent upon the plaintiffs to disprove other possible causes. Furthermore, there was sufficient evidence based on the expertise of several witnesses to substantiate the cause of the break which occurred with this particular plank. We are further convinced of this conclusion by the record which is devoid of any objection made to the introduction of these photographs and their use at the trial.

With reference to the appeal prosecuted by Bahr from a judgement in favor of McGrew on its third-party complaint, Bahr questions the trial court’s action in directing a verdict. The contention is that there were questions of fact concerning whether Bahr in fact had supplied the defective lumber to McGrew and as to whether Bahr had knowledge of the intended use of the lumber when ordered by McGrew. Thus, Bahr contends that McGrew failed to sustain its burden of proof so the trial court improperly directed a verdict for McGrew and that the trial court should have granted Bahr’s motion for a judgment notwithstanding the verdict. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967).

The evidence introduced by McGrew in support of its third-party complaint against Bahr consisted of the testimony of its President, Milton S. Friedman. This witness identified his company’s invoices to Gilco which consisted of several orders of rough spruce scaffold lumber. Furthermore, Mr. Friedman identified an invoice from Bahr dated September 25, 1959, which evidenced an order of McGrew’s from Bahr for a shipment of rough spruce scaffold lumber. On two separate occasions, Friedman stated that at that time, the Bahr Lumber Company was McGrew’s only supplier of that type of lumber. On the strength of this evidence we feel that the trial judge properly entered a directed verdict for McGrew depending on the jury’s verdict as to McGrew’s liability to the plaintiffs in their case. We are of the opinion that the record substantiates the fact that under the Pedrick test, the trial judge properly concluded that “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.” 37 Ill2d 494, 510, 229 NE2d 504 (1967).

Therefore, we affirm the judgment of the trial court for the plaintiffs’ claim against McGrew and also affirm the directed verdict for McGrew in its third-party complaint against Bahr.

Affirmed.

MURPHY and BURMAN, JJ., concur.


text:
    City of Chicago, a Municipal Corporation, Plaintiff-Appellee, v. Bernadine Harmon, Defendant-Appellant.
    Gen. No. 52,433.
    First District, First Division.
    December 8, 1969.
    Rehearing denied January 16, 1970.
    Ron W. Fritsch, of Chicago, for appellant.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Edmund Hatfield, Assistant Corporation Counsel, of counsel), for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

This cause was transferred on November 22, 1967, to the Illinois Supreme Court on motion of the appellee due to the constitutional questions involved. After we granted the request, the Supreme Court reassigned the matter for our consideration on December 4,1968.

The defendant has appealed the denial of her motion for a new trial after her conviction for violation of the disorderly conduct provision of the Municipal Code of the City of Chicago, chapter 193, section 1. The facts show that on February 9, 1967, at 11:00 a. m., the defendant was arrested by police officers and taken to the Fillmore Street Police Station. She was in custody for about one hour at that location and was subsequently transported to the womens’ lockup at 11th and State Streets in Chicago. The defendant remained in custody until 2:00 p. m. on February 10,1967, when she was brought to trial.

■ At the hearing on her motion for a new trial, the defendant claimed that on several occasions while at the Fillmore and Central Police stations she was denied a request to make a phone call while making said request to a number of police officials. When her case was called for trial in Women’s Court, the defendant answered ready for trial, waived a jury, and conducted her own defense. The complainant and another witness testified for the City but the defendant did not cross-examine them. The defendant denied the charge and the court found her guilty. Miss Harmon then offered to prove that she was not at the scene of the alleged occurrence and stated that if given time she could prove that she was working at another location on the date and time in question. The court stated it was too late, and imposed a fine of twenty-five dollars. Since defendant was without adequate funds, she was sentenced to the House of Correction to satisfy her fine at the rate of Five Dollars a day. Defendant’s relatives learned of her arrest, trial and detention on February 12, 1967, whereupon her uncle paid the remainder of her fine and defendant was released.

On this appeal, the defendant contends she was denied a fair trial and due process of law because of the period of detention, from arrest to trial, without being afforded the opportunity to communicate during this time. Defendant contends that this amounted to unreasonable incommunicado detention which unnecessarily restricted her right to prepare a defense. The appellant refers to section 103-3 of the Criminal Code which provides that persons arrested have the right to communicate with an attorney and a member of one’s family within a reasonable time after arrival at the first place of custody, with a renewal of this right if one is transferred to a new place of custody. Chapter 38, section 103-3, Ill Rev Stats (1967). The defendant initially relies upon the above statutory expression but asserts that the right of one who is in custody to communicate is not based on the statute alone. Rather, the defendant asserts that the right is also guaranteed by the due process clauses of the Federal and State constitutions.

The City answers these contentions by citation to several cases which establish that several provisions of the Criminal Code are not applicable to proceedings for the enforcement of a violation of a municipal ordinance. Thus, in City of Chicago v. Joyce, 38 Ill2d 368, 232 NE2d 289 (1967), the Supreme Court established that municipal code violations need not be established by proof beyond a reasonable doubt, as would be required in criminal cases. Similarly, in Village of Park Forest v. Bragg, 38 Ill2d 225, 230 NE2d 868 (1967), it was held that a municipality could appeal an acquittal for a violation of a municipal ordinance. Thus, the City argues that section 103-3 of the Criminal Code was not available to this defendant because these proceedings were civil in nature.

We are of the opinion that based upon the above cases, the City’s argument for the inapplicability of section 103-3 of the Criminal Code is entirely correct. We believe the rationale for this holding was expressed in City of Highland Park v. Curtis, 83 Ill App2d 218, 226 NE2d 870 (1967), where it was stated at page 228:

“A prosecution for the violation of a municipal ordinance and to recover a fine or penalty therefor, while quasi-criminal in nature, is civil in form and is tried and reviewed as a civil proceeding.”

However, the defendant has argued that the right involved is grounded upon basic principles of due process. Thus, the defendant contends that factually, she has been denied her liberty and property without that fundamental justice required from our constitutional law. The City attempts to answer this factual contention by claiming that the report of proceedings is insufficient to show that the defendant was denied her right to communicate by phone while in police custody. The defendant’s testimony at her motion for a new trial was uncontroverted; she stated that she was denied any communication before trial, despite repeated requests while in custody of the police; that she answered ready for trial out of fear of being further detained if a continuance had been granted. We feel that the record substantiates the defendant’s factual assertions.

In response to this, the City argues that because of the quasi-criminal nature of the proceedings the defendant was not entitled to any communication with her friends or an attorney. On the other hand, the City contends that the defendant had a right to a speedy trial which she received by answering ready for trial and conducting her own defense. Thus, the City’s argument appears to be that constitutional due process was not available for the right the defendant now claims, but that the exercise of another constitutional safeguard was available and properly exercised by the defendant. We are not persuaded by this reasoning, nor do we agree with the City’s assertion that the procedures followed in Women’s Court were sufficient to allow defendant opportunity to secure assistance in preparing her case. The City’s brief actually characterized this as “potential assistance” which could have been extended to the defendant, while their brief acknowledges that “unfortunately many defendants do not realize this.” We feel that this is not an adequate reason for denying the defendant the opportunity to at least make a phone call to inform someone in order to assist her during her incarceration and preparation for trial.

We are of the opinion that under the facts and circumstances of the instant case, the defendant was denied due process of law when she was denied the right to communicate after her arrest and detention for the Municipal Code violation involved.

Furthermore, in answer to the City’s contention that the defendant waived her rights by proceeding to trial, we think it cannot be said that the defendant knowingly and intelligently waived her right to counsel or the opportunity to prepare a defense to these proceedings. Johnson v. Zerbst, 304 US 458 (1938).

Thus, we conclude that the judgment of the Circuit Court denying the defendant’s motion for a new trial is reversed and the cause is remanded.

Reversed and remanded.

MURPHY and BURMAN, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Fred C. Brown, Defendant-Appellant.
    Gen. No. 52,441. (Abstract of Decision.)
    First District, First Division.
    December 8, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney and Robert Kelty, Special Assistant State’s Attorney, of counsel), for appellee.
   Opinion by JUSTICE MURPHY. Not to be published in full.


author: MR. JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. David Olbrot, Defendant-Appellant.
    Gen. No. 52,718.
    First District, First Division.
    December 8, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Professor James R. Thompson, Northwestern University School of Law, Theodore A. Gottfried, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, David Olbrot, was found guilty of armed robbery after a trial before a jury. He was sentenced to a term of ten to fifteen years in the penitentiary.

The defendant contends, on appeal, that (1) the lineups in which the defendant was identified were so suggestive and unfair as to deny him Due Process of Law; (2) the State failed to prove him guilty beyond a reasonable doubt; (3) the introduction of evidence of another crime deprived him of a fair trial; and (4) the court erred in refusing to allow defense counsel to impeach the State’s rebuttal witnesses with inconsistent statements made at a prior hearing.

At approximately 1:30 a. m., on January 3, 1967, Edwin A. Zaraza, a pharmacist, and Jerry Roche, a clerk, were working at the Musket and Hendricksen Pharmacy at 4200 North Central Avenue when two men entered with drawn guns and announced a robbery. Zaraza was behind the prescription counter, and Roche was alongside. A man whom Zaraza and Roche identified in court as the defendant, stood at the cash register about twelve feet from them. The other man said that he wanted certain drugs. Zaraza put them in a bag and gave it to him. The man asked for needles and took a handful of boxes of needles when shown where they were. This man also went to the cash register which contained about $150. When the men left the money was gone. This other man also took some money from a drawer. Zaraza and Roche were then told to lie on the floor which they did just before the robbers left. The incident took from three to five minutes.

Zaraza testified that he described the defendant to the police as being about five feet three, 130 pounds, and either Puerto Rican or Italian. He had long black hair and wore a black leather jacket and sun glasses of the wraparound type. The other man was five feet eight or nine, with a lighter complexion and lighter hair. He wore a light colored jacket, a sweater shirt, light slacks, and was in his early twenties.

Zaraza testified on cross-examination that he identified the defendant when he attended a lineup of four men in the lockup at a police station two or three days after the robbery. One of the men in the lineup was about six feet tall, while the other two were five feet ten or five feet eight, or maybe shorter. The defendant was the shortest one in the lineup, and at that time his face was badly bruised. Zaraza said that he did not look much different from the time when he was in the store. He said that he requested the police to put sunglasses on the defendant. He requested this because, although he was fairly sure, he wanted to make certain that it was the same man. Zaraza stated that the pharmacy was well lit with fluorescent lighting. He testified that he looked directly at the defendant several times in the pharmacy. At one time they were within five feet of each other.

Jerry Roche also identified the defendant in court as the man who stood next to the cash register. He testified that while the other man took the money out of the cash register, the defendant had a gun pointed at him and told him not to move or he would be a dead man. At that time the defendant was two feet away from him. Roche described the defendant’s wearing apparel as being black pointed shoes, black pants, a black sweater, a shirt underneath the sweater and wraparound sunglasses. He said the defendant’s hair was long, black and combed straight back. He described the other man as being three to four inches taller, with a lighter complexion and lighter hair. He said the men were in the store about three minutes.

Roche testified on cross-examination that he attended a lineup at the police station before Zaraza did. The lineup consisted of three men, one of whom was over six feet, another about five feet seven and the defendant who appeared badly beaten up. Roche didn’t want to identify the defendant until they put sunglasses on him. He explained that the defendant looked as much like the man in the store as anybody could, but that he wasn’t ready to identify him without the sunglasses. During the course of the robbery he paid more attention to the defendant.

Officer Raymond Golnick testified that he and several officers were staked out in an apartment on the second floor of 3423 West Drummond on January 6, 1967. At 5:00 a. m., they heard a knock on the door. As Officer Golnick opened the door, he identified himself as a police officer. The defendant pulled a revolver from his pocket and pointed it at the officer who heard a click. Force was necessary to subdue him. The officers found three cartridges in the weapon after arresting the defendant. Officer Raymond Springer corroborated Officer Golnick’s version of what took place. He also testified that the defendant later kicked him in the groin several times. He then struck the defendant in the head several times with the stock of his gun.

Frank Kopp, a bartender at the Club Caravan, located at 2119 South Halsted, testified for the defense that he saw the defendant in his tavern on the night of January 2nd and 3rd, between 9:30 or 10:00 p. m. and 4:00 a. m. He said that the defendant shot pool that night with a Kenneth Eichert and an Omar Wilson. He didn’t see the defendant leave the tavern during that time period. Kopp testified that he had never seen the defendant before that night, but knew the other two men. He said that he was introduced to the defendant that night.

Marian Olbrot, the defendant’s mother, testified that she saw her son at 2:00 p. m. on January 2, 1967, at their home with Omar Wilson. At that time, the defendant was wearing a corduroy tan jacket, dark slacks and a white shirt. Mrs. Olbrot said that she bought her son’s clothes and that he never owned a black leather jacket or sunglasses. The next time she saw him was when he came home late on January 3rd. She testified that she didn’t know where her son was between 1:00 and 2:00 a. m. of January 3rd. Rosalie Shaw, the defendant’s sister, testified that she saw the defendant on January 2, 1967, at 4:00 p. m. at her home. He was with Omar Wilson, her brother-in-law. The defendant wore a tan jacket and dark slacks. The two men left her house at 9:00 p. m.

The State called Josephine Tripoli, Leonard Jay, Jr. and Leonard F. Jay as rebuttal witnesses. Mrs. Tripoli testified that at approximately 1:00 a. m. on January 3, 1967, two men entered her tavern at 6232 W. Addison with guns in their hands. One of them was the defendant. There were six customers in her bar at that time, including Mr. Jay, Sr. and Mr. Jay, Jr. She gave a description of the defendant to the police. She said that the defendant was about six feet away from her and that the robbery took about ten minutes. Leonard Jay, Jr. testified that he was in the tavern shooting pool with his father and brother when he saw the defendant who was wearing a black leather jacket enter with another man about 1:00 a. m. on January 3, 1967. Both were carrying guns in their hands. Leonard F. Jay testified that he was in the tavern with his two sons when the defendant and another man entered carrying guns about 1:00 a. m. on January 3, 1967, and held up the tavern.

The defendant contends that the lineups from which he was identified were so unfair and suggestive as to deny him his right to due process of law. He also contends that it was reversible error to admit the courtroom identifications into evidence because they were tainted by the prior illegal lineups. It is argued that in both lineups the defendant was considerably shorter than the other men and that neither witness made a positive lineup identification until after the defendant was caused to wear sunglasses, while at the trial both witnesses positively identified the defendant without sunglasses.

In People v. Terczak, 96 Ill App2d 373, 238 NE2d 626, the defendant also attacked a lineup where he claimed the other three persons were not sufficiently comparable to him in size, age and appearance. The Appellate Court held, as we do here, that these matters go to the weight of the testimony rather than its admissibility. The record is clear in the case at bar that both witnesses had ample opportunity to observe the defendant in a well lit drugstore. They gave a complete description to the police of the defendant which included his clothing and style of hair. Neither witness made a hasty identification at the lineup. Each requested to see the defendant with sunglasses on, as they had seen him in the store. All of this, including the description of the lineups, was presented to the jury. The identifications were unshaken during cross-examination. Under all these circumstances we cannot say that these identifications violated the due process standards of Stovall v. Denno, 388 US 293, 87 S Ct 1967. We hold that the lineup identifications were admissible and did not taint the courtroom identifications.

The defendant further contends that the introduction of evidence of other crimes was reversible error. Although this is normally a valid contention, we think that the evidence was proper in this case. It placed the defendant with a companion in the immediate area of the pharmacy a short time before the robbery. It showed that at this time he possessed a gun. It thus rebutted the contention of the defendant that he was in another tavern during that time period. The great detail about this other robbery was brought out by the defense on cross-examination. Since the detail was not presented by the State, it does not even fall under decisions such as People v. Bond, 99 Ill App2d 45, 241 NE2d 218, which disapproved such detailed testimony, but did not hold that its admission required reversal. We think the testimony was properly admitted.

It is also argued that the court erred in refusing to allow defense counsel to impeach the State’s rebuttal witnesses with inconsistent statements made at a prior hearing. The defendant contends that a contrary statement made at a prior court hearing may be testified to by anyone who heard it, and relies on People v. Whitehead, 35 Ill2d 501, 221 NE2d 256, and People v. DeBerry, 72 Ill App2d 279, 219 NE2d 701. In Whitehead the court held that defense counsel had been effectively foreclosed from impeaching the State’s most important identification witness when the trial court prevented him from bringing in the court reporter from the prior proceeding. In DeBerry the court said that the reporter’s testimony based on his notes is the best evidence, but would have admitted the testimony of a witness to the preliminary hearing in which the alleged inconsistent statement was made since there had been no reporter present. However, a proper foundation had not been laid.

In this case, defense counsel asked Mr. Jay if he had testified before that the small robber was five feet eight. Mr. Jay replied that he might have said that. There was therefore no need for further impeachment on that point. In regard to Mrs. Tripoli, defense counsel sought to bring in a lawyer who was present at the prior hearing where her testimony was given. The court informed counsel that he could bring in the transcript or the court reporter if he wished to prove impeaching statements. No claim was made by defense counsel, who apparently participated in the other trial that he could not obtain a transcript or was unable to bring in the court reporter to testify from his notes. Under DeBerry the court reporter’s transcript or his notes were the best evidence. Absent a showing that they were not obtainable, there was no foundation for the testimony of the witness to the impeaching statements, and it was not error to exclude him.

Finally, it is alleged that the State failed to prove the defendant guilty beyond a reasonable doubt. The defendant argues that this is so because of the weak identification evidence and the testimony of an alibi for the defendant. It is well established that we will not disturb the findings of the jury or the judgment of the trial court unless the proof is so unsatisfactory as to justify a reasonable doubt as to defendant’s guilt. We conclude that the testimony was sufficient to establish the guilt of the defendant beyond a reasonable doubt.

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

Judgment affirmed.

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