text:
    (No. 57883.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JAMES BERRY, Appellee.

      Opinion filed February 22, 1984.

      Neil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Mark Rotert and Michael B. Weinstein, Assistant Attorneys General, of Chicago, and Michael E. Shabat, Richard B. Levy, and Marie Quinlivan, Assistant State’s Attorneys, of counsel), for the People.
    Steven Clark, Deputy Defender, of the Office of the State Appellate Defender, of Chicago (Nancy G. Abrahams, of Aaron, Schimberg, Hess, Rusnak, Deutsch & Gilbert, of Chicago, of counsel), for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, James Berry, was found guilty of murder and armed violence and was sentenced to a term of 30 years’ imprisonment. The appellate court reversed and remanded the cause for a new trial. (111 Ill. App. 3d 487.) We granted the State’s petition for leave to appeal pursuant to Rule 315. 73 Ill. 2d R. 315.

Three issues are raised on appeal: (1) Did the trial court’s failure to give Illinois Pattern Jury Instruction (IPI), Criminal, No. 25.05 (1968) constitute plain error? (2) Did defendant receive effective assistance of counsel? (3) Did the trial court err by not informing defendant that his attorney was ineffective and by not affording defendant the opportunity to retain competent counsel?

The State’s evidence revealed that on the evening of September 13, 1978, defendant was admitted to the apartment of Gertrude Hollie at 4429 South Federal in Chicago. He was there for less than one hour when a friend of his came to the door. Defendant left the apartment to speak with his friend, who was on the porch just outside the apartment. While defendant was on the porch, Richard Spaulding, who lived with Gertrude and was the father of one of her children, arrived at Gertrude’s apartment. Billy Square Hollie, Gertrude’s brother, was also in the apartment.

A short time after Spaulding entered the apartment, defendant returned to the apartment. Spaulding accused the defendant of selling him some “bad” marijuana. When the two men began shouting at one another, Gertrude stepped between them in an effort to prevent a fight. According to the testimony of Billy Hollie, defendant took out a gun and shot Spaulding, who was unarmed. Gertrude testified that she heard a gunshot and ran into a closet. When she turned around, she observed Spaulding lying on the floor with blood on his shirt. She then saw Billy and the defendant grappling over the gun, which discharged during the struggle. Billy was able to push the defendant out the door. Defendant was arrested at his apartment a short time later. At that time he told the arresting officers, “I did it. I shot him. Let’s go to the station.” Spaulding died in a hospital, approximately one month later, as a result of complications arising from the chest wound.

Contrary to the testimony of the above two witnesses, defendant testified that Spaulding was the first to draw a handgun. Defendant stated that when he finished his conversation with his friend, outside Gertrude Hollie’s apartment, he began walking toward his girlfriend’s apartment, which was on the same floor. At that time Gertrude called out to him to return to her apartment. When he approached the door, Spaulding forced him into the apartment with a gun and told the defendant he was going to shoot him because of the bad marijuana. Defendant stated that, at this point, he pulled out his gun and pointed it at Spaulding but told Spaulding to put his gun down. He also stated that he was trying to back out of the apartment when Billy grabbed his hand, and the gun fired. In an earlier oral statement, made at the police station following his arrest, defendant stated that he fired at Spaulding before the struggle with Billy.

The jury in this case received a series of definitional and issues instructions submitted by the State without' objection by defense counsel. These include:

IPI Criminal No. 2.03, the burden-of-proof instruction, which states that the burden is on the State throughout the case to prove the guilt of the defendant, beyond a reasonable doubt.
IPI Criminal No. 7.02, the issue instruction for a murder case, which requires the State to prove all elements of the offense of murder, beyond a reasonable doubt.
IPI Criminal No. 7.06, the issue instruction for voluntary manslaughter, which requires the State to prove, beyond a reasonable doubt, that defendant’s belief that circumstances existed which would have justified his killing the victim, was unreasonable.
IPI Criminal No. 24.06, the instruction defining when the use of force is justified in defense of a person.

In addition, definitional instructions IPI Criminal No. 7.01 (murder) and IPI Criminal No. 7.05 (voluntary manslaughter) were submitted to the jury. The jury was not, however, given IPI Criminal No. 25.05 which, in addition to proving the elements of the crime, requires the State to prove, beyond a reasonable doubt, that the defendant was not justified in using the force which he used. The appellate court, in this case, held that reversible error occurred because the instructions did not inform the jury that the State was required to prove beyond a reasonable doubt that the defendant’s actions were not justified. In addition, the court concluded that there was merit to defendant’s argument that his counsel was incompetent. 111 Ill. App. 3d 487.

This court has consistently held that the failure to object at trial to an asserted error in jury instructions waives the issue. (People v. Huckstead (1982), 91 Ill. 2d 536, 543; People v. Tannenbaum (1980), 82 Ill. 2d 177, 180; People v. Roberts (1979), 75 Ill. 2d 1, 14.) It is also well established that a party may not raise, on appeal, the failure to give an instruction unless he tendered it at trial. (People v. Huckstead (1982), 91 Ill. 2d 536, 543; People v. Tannenbaum (1980), 82 Ill. 2d 177, 180; People v. Underwood (1978), 72 Ill. 2d 124, 129; 73 Ill. 2d R. 366(b)(2)(i).) Additionally, objections not raised in a post-trial motion are deemed waived for appellate review. (People v. Huckstead (1982), 91 Ill. 2d 536, 543; People v. Tannenbaum (1980), 82 Ill. 2d 177, 181; People v. Foster (1979), 76 Ill. 2d 365, 380.) Supreme Court Rule 451(c) sets forth a limited exception to the waiver rule which allows the review of “substantial defects” in instructions “if the interests of justice require.” 73 Ill. 2d R 451(c); see People v. Huckstead (1982), 91 Ill. 2d 536, 544; People v. Tannenbaum (1980), 82 Ill. 2d 177, 182; People v. Roberts (1979), 75 Ill. 2d 1, 16.

There have been numerous- appellate court decisions regarding the failure to give IPI Criminal No. 25.05. As the parties and the appellate court in this case note, these decisions have been divided as to whether this constitutes plain error under Rule 451(c). (73 Ill. 2d R. 451(c); see People v. Huckstead (1982), 91 Ill. 2d 536, 544, and cases cited therein.) In Huckstead, this precise question was considered. There, the defendant had been charged with murder. The jury received IPI Criminal No. 7.02, the issues instruction for a murder case. Although self-defense had been raised by the defendant, defense counsel made no objection to this instruction and failed to tender IPI Criminal No. 25.05 or include this omission in his post-trial motion as error. Recognizing-the very limited use this court has given to the Rule 451(c) exception to the waiver rule, the Huckstead court applied the “grave error” and “closely balanced evidence” tests to the facts and circumstances of that case. (See People v. Tannenbaum (1980), 82 Ill. 2d 177, 182.) In so doing, the court held that the failure to give IPI Criminal No. 25.05 did not constitute plain error.

The State maintains, in the case at bar, that Huck-stead “put to rest” the division of opinion displayed by the appellate court on the question of whether the failure to give IPI No. 25.05 constitutes plain error. As such, it is the State’s position that the- appellate court ignored this court’s view of the concept of waiver stated in Huckstead. The defendant responds that Huckstead is not a per se waiver rule which would mandate a negative finding of plain error when IPI Criminal No. 25.05 is omitted in a case where self-defense is an issue.

We agree with defendant and for the reasons to follow affirm the appellate court’s holding that, under the circumstances of this case, reversible error occurred by the failure to give the jury IPI Criminal No. 25.05. Huekstead emphasized this court’s position that the plain-error exception to the waiver rule created by Rule 451(c) (73 Ill. 2d R. 451(c)) is to be confined to the correction of “grave errors” (People v. Huekstead (1982), 91 Ill. 2d 536, 544; People v. Tannenbaum (1980), 82 Ill. 2d 177, 182; People v. Roberts (1979), 75 Ill. 2d 1, 14) or to instances where the case is so close factually that fundamental fairness requires the jury be properly instructed. (People v. Huckstead (1982), 91 Ill. 2d 536, 544; People v. Tannenbaum (1980), 82 Ill. 2d 177, 182.) Application of this test to the evidence presented in the instant case reveals that there was “grave error” as well as circumstances that were so close factually as to require the tendering of proper jury instructions.

We turn first to the issue of “grave error.” In Huckstead, the court found that the instructions tendered (IPI Criminal Nos. 2.03, 7.02, 24.06), in conjunction with the closing arguments given by both litigants, sufficiently informed “the jury that the State had the burden of proving that defendant was not justified in the force he used.” (People v. Huckstead (1982), 91 Ill. 2d 536, 545.) Although issue instruction, IPI Criminal 25.05, had not been offered, defendant’s counsel, in closing argument, “repeatedly and specifically” impressed upon the jury the necessity of the State proving that the defendant was not justified in the force he used. Moreover, the State in rebuttal argument reiterated that it was its burden to show that the force used was not justified. As such, the court found that the failure to give IPI Criminal No. 25.05 did not constitute “grave error.”

The jury in the case at bar, as in Huckstead, was given IPI Criminal Nos. 2.03, 7.02 and 24.06, but, unlike in Huekstead, defense counsel failed to inform the jury in closing argument (or at any time during the trial) of the State’s burden of proving, beyond a reasonable doubt, that the defendant was not justified in his use of force. Defense counsel merely made a general reference to the State’s burden “of proving [defendant] guilty of each and every allegation that is charged beyond a reasonable doubt.” The instructional gap was not filled by the prosecutor who, in rebuttal, merely acknowledged that the State has the burden of proof.

This court strives to apply the waiver rules narrowly and consistently in conformity with the posture of the United States Supreme Court (see generally Henderson v. Kibbe (1977), 431 U.S. 145, 154, 52 L. Ed. 2d 203, 212, 97 S. Ct. 1730, 1736, where the Court stated: “It is the rare case in which an improper instruction will justify reversal of a criminal conviction where no objection has been made in the trial court”) and the Seventh Circuit Court of Appeals (see generally United States v. Jackson (7th Cir. 1978), 569 E2d 1003, cert. denied (1978), 437 U.S. 907, 57 L. Ed. 2d 1137, 98 S. Ct. 3096, where the court looked to the record as a whole and concluded that omission of an instruction that placed the burden of proof on the self-defense issue on the government did not constitute “plain error”). Review of the record in this case reveals, however, that the jury was not apprised that the State had the burden of proving, beyond a reasonable doubt, that defendant was not justified in the force he used and, therefore, grave error resulted.

With respect to the “factually close” prong of the plain-error test, evaluation of the evidence presented indicates that this case was factually close. The record reveals that Richard Spaulding was angry with the defendant for selling him what he perceived as inferior marijuana. While there is nothing in the record to corroborate defendant’s testimony that Spaulding was in possession of a gtm, the testimony of both eyewitnesses, Gertrude Hollie and Billy Hollie, indicates that Spaulding was the initial aggressor.

Gertrude testified that Spaulding “grabbed” at the defendant and that she had to push Spaulding because he had his hand over his head and “he was getting ready to hit” the defendant. Billy testified that Spaulding “was going to hit [defendant] or push him” when Gertrude jumped between Spaulding and the defendant. In contrast, the defendant in Huckstead stated, prior to the shooting, that he was going to kill the victim. In addition, in Huckstead, the initial altercation between the defendant and the victim occurred some time before the fatal attack. The defendant actually left the scene, went home to obtain a .22-caliber rifle, and returned to confront the victim. On the basis of these circumstances, the Huckstead court concluded that the case was not close factually on the question of whether the shooting occurred as a result of self-defense. Based on the aforementioned facts, we find this case distinguishable from Huckstead and closely balanced on the question of whether the shooting occurred as a result of self-defense. See Ill. Rev. Stat. 1979, ch. 38, pars. 7 — 1, 7 — 4.

Under the circumstances of this case, we hold that the trial court’s failure to give IPI Criminal No. 25.05 was a critical error which “ ‘severely threatened the fundamental fairness’ of the defendant’s trial.” (People v. Huckstead (1982), 91 Ill. 2d 536, 547; People v. Roberts (1979), 75 Ill. 2d 1, 15.) For that reason, the judgment of the appellate court, reversing the judgment of the circuit court and remanding for a new trial, is affirmed. In light of this disposition, it is unnecessary to reach the other issues raised on appeal.

Judgment affirmed.


source: Caselaw Access Project

author: JUSTICE MORAN JUSTICE SIMON,

license: Public Domain

text:
    (No. 58233.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RONALD TERRY et al., Appellees.

      Opinion filed February 22, 1984.

      SIMON, J., dissenting.
    Neil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Mark Rotert and Michael B. Weinstein, Assistant Attorneys General, of Chicago, and Michael E. Shabat, Joan S. Cherry, James S. Veldman, Louis F. Stalzer, and Bruce A. Cardello, Assistant State’s Attorneys, of counsel), for the People.
    Keith F. Bode and C. John Koch, of Jenner & Block, of Chicago, for appellees.
   JUSTICE MORAN

delivered the opinion of the court:

In a jury trial in the circuit court of Cook County, defendants, Ronald Terry and Duane Terry, were each found guilty of murder and armed violence. Judgment was entered on the verdict. Each defendant was sentenced under the murder conviction; however, neither defendant was sentenced under the armed-violence conviction. The appellate court reversed and remanded the cause for a new trial. (113 Ill. App. 3d 302). Thereafter, this court granted the State’s petition for leave to appeal. 85 Ill. 2d R. 315.

The issues raised on review are: (1) Was the jury properly instructed on the law of accountability and murder? (2) Were the State’s comments during its closing argument improper and prejudicial? and (3) Were defendants proved guilty beyond a reasonable doubt?

The evidence produced at trial indicates that on March 27, 1981, defendants, along with Timothy Davis, Ricky Myers, and Bernard Lash, were at Priscilla Lyons’ apartment in Chicago. All five men were members of the same Chicago street gang. While at the apartment, a fistfight between Davis and Ronald Terry took place. After the fight subsided, Ronald Terry said to Myers, “we are going to violate [Davis],” to which Myers replied that he “was going to kill him a nigger.” Duane Terry stated that he heard what Ronald said; however, there is no indication that he heard Myers’ reply. Both defendants saw Myers take a knife from the kitchen in Lyons’ apartment. Ronald Terry stated that he knew that Myers intended to “[c]ut Timothy Davis with the knife.”

After being ordered by Lyons to leave her apartment, the five men went into the hallway, where they commenced attacking Davis. Duane Terry and Lash “violated” Davis by pulling and hitting him and then held Davis while Ronald Terry “violated” him by punching him in the face and chest. Myers tapped Ronald Terry on the shoulder and Terry stepped aside. Myers then stabbed Davis twice with the knife that he had taken from Lyons’ apartment. Davis later died from a stab wound to his chest which punctured the left thorax.

Ronald Terry hid the knife in the incinerator room of the apartment building. Sometime later, he retrieved the knife and Lyons washed the blood from it. Lyons also washed Myers’ bloodstained jacket which Ronald Terry found on the hallway floor.

While discussing accountability during closing argument, the assistant State’s Attorney stated, “[t]he law only requires that Ronald Terry and Duane Terry knew when they went out in that hall that there was a strong possibility that Timothy Davis was going to be hurt.” The State then used a felony-murder example to illustrate the law of accountability. He stated, “the getaway driver in an armed robbery, where the guy goes into the bank and sticks up the teller and he kills the teller, the getaway driver is guilty of armed robbery and murder.” The State’s Attorney also made references to defendants’ membership in the street gang. In her closing argument, the defense attorney stated that baseball fans who shout “kill the umpire” are not accountable if another fan throws a beer bottle and does kill the umpire. In rebuttal, the State’s Attorney argued, “how about the two guys that run out and hold the ump and hold him while the guy with the beer bottle comes out and smashes him in the head? They are guilty of murder. That’s the law in the State of Illinois.”

After both sides rested, the jury was instructed, inter alia, on the law of murder and accountability. At issue are two instructions, which were submitted to the jury over defendants’ objection. They state as follows:

“A person is responsible for the conduct of another when, either before or during the commission of a crime, and with the intent to promote or facilitate the commission of a crime, he knowingly solicits, aids, abets, agrees or attempts to aid the other person in the planning or commission of a crime.” (Emphasis added.)
"A person commits the crime of murder when he or one for whose conduct he is responsible, kills an individual if, in performing the acts which cause the death, he, or one for whose conduct he is responsible, intends to kill or do great bodily harm to that individual; or he, or one for whose conduct he is responsible, knows that such acts will cause death to that individual; or he, or one for whose conduct he is responsible, knows that such acts create a strong probability of death or great bodily harm to that individual.”

The first instruction, regarding the law of accountability, parallels the language of Illinois Pattern Jury Instruction (IPI), Criminal, No. 5.03 (1968), except that the second to last word was changed from “the” to “a.” The second instruction, the murder definition, follows the language of IPI Criminal No. 7.01 (2d ed. 1981), except that the phrase “or one for whose conduct he is responsible” was inserted before each of the state-of-mind propositions.

The appellate court found that the State proved, beyond a reasonable doubt, that defendants aided and abetted Myers in murdering Davis. But, in reversing defendants’ convictions, the court held that the instruction setting forth the law of accountability was inaccurate. It reasoned, “defendants could not be found guilty of murder unless the jury was satisfied that in committing a battery on the victim, defendants had the intent to promote or facilitate the murder and knowingly aided or abetted Myers in committing murder.” (Emphasis added.) (113 Ill. App. 3d 302, 305.) In light of the disposition of this issue, the appellate court did not reach defendants’ other contentions.

The State maintains that the accountability instruction was proper. It contends that defendants may be held accountable for murder if the murder was committed in furtherance of the planned and intended battery. Defendants argue that the accountability instruction was erroneous because it allowed the jury to hold them accountable for murder without finding that they possessed the required intent.

Defendants were convicted of murder by accountability under section 5 — 2(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 5 — 2(c)), which states:

“A person is legally accountable for the conduct of another when:
* * *
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.”

This court construed section 5 — 2(c) as incorporating the long-established “common-design rule.” (See People v. Kessler (1974), 57 Ill. 2d 493, 498-99; People v. Armstrong (1968), 41 Ill. 2d 390, 399.) That rule provides, “where two or more persons engage in a common criminal design or agreement, any acts in the furtherance thereof committed by one party are considered to be the acts of all parties to the common design and all are equally responsible for the consequences of such further acts.” People v. Kessler (1974), 57 Ill. 2d 493, 496-97.

The first case to discuss the common-design rule was Brennan v. People (1854), 15 Ill. 511, where the court held that an accomplice can be held accountable for murder even without a showing of an intent to kill. In Brennan, a group of persons pursued a man named Story to a bam, where they killed him. It is not clear what events led to the murder or which person actually killed Story. In holding the defendants guilty of murder, the court stated:

“The [defendants] may be guilty of murder, although they neither took part in the killing, nor assented to any arrangement having for its object the death of Story. It is sufficient that they combined with those committing the deed to do an unlawful act, such as to beat or rob Story; and that he was killed in the attempt to execute the common purpose. If several persons conspire to do an unlawful act, and death happens in the prosecution of the common object, all are alike guilty of the homicide. The act of one of them done in furtherance of the original design is, in consideration of law, the act of all. And he who advises or encourages another to do an illegal act is responsible for all the natural and probable consequences that may arise from its perpetration.” (Emphasis added.) 15 Ill. 511, 516-17.

This court recently applied the common-design rule in Kessler, and affirmed an attempted-murder conviction even though an intent to kill was not proved. The court reasoned:

“We believe the statute, as it reads, means that where one aids another in the planning or commission of an offense, he is legally accountable for the conduct of the person he aids; and that the word ‘conduct’ encompasses any criminal act done in furtherance of the planned and intended act.” (Emphasis added.) People v. Kessler (1974), 57 Ill. 2d 493, 497.

Here, the substantive offense which the group conspired to commit was battery. Each person therefore was responsible for the conduct of the other which was done in furtherance of the intended battery. The result of their concerted acts was murder and, under the common-design rule, all are legally accountable for that murder.

The trial court informed the jury, by its instruction, that defendants were accountable for any criminal act committed with the intent to promote or facilitate the commission of a crime. The instruction included the elements of accountability as set forth in section 5 — 2(c). We therefore hold that the jury was accurately instructed on the law.

Defendants argue that the common-design rule should be abolished because it creates a “misdemeanor murder rule.” We agree that the rule does impose liability for murder even though a misdemeanor was originally intended. As previously noted, the underlying intent of the accountability statute was to incorporate the principle of the common-design rule. This court has consistently reiterated its support for the rule (People v. Kessler (1974), 57 Ill. 2d 493; People v. Rybka (1959), 16 Ill. 2d 394; Hamilton v. People (1885), 113 Ill. 34; Brennan v. People (1854), 15 Ill. 511), and we see no reason to depart from it at this time.

Defendants assert that the murder-definition instruction was erroneous because the phrase “or one for whose conduct he is responsible” was inserted before each of the state-of-mind propositions. They contend that including accountability language in the murder definition emphasized and compounded the error of the accountability instruction.

In support of their argument, defendants cite the committee note to IPI Criminal No. 5.03 (2d ed. 1981), which indicates that the phrase “or one for whose conduct he is legally responsible” should be inserted before the state-of-mind propositions in “the issues instruction for the offense charged.” The committee note does not state that the phrase should be included in the definition instruction as was done here.

Instructions in criminal cases must be read as a whole. “It is sufficient if the series of instructions, considered as a whole, fully and fairly announce the law applicable to the respective theories of the People and the defense.” (People v. Kolep (1963), 29 Ill. 2d 116, 125.) In addition to the challenged definition instruction, the trial court gave IPI Criminal No. 7.02 (2d ed. 1981), which properly defined the issues that the State must prove, beyond a reasonable doubt, in a murder case. The jury was also accurately instructed on the law of accountability. When considered and read as a whole, the instructions in this case fully and adequately informed the jury of the applicable law. We agree that it was error to include the accountability language in the murder definition; however, for the reasons related above, and because the facts of this case are uncontroverted and overwhelmingly demonstrate the defendants’ guilt, we hold that the instruction did not constitute reversible error.

Defendants next contend that they were deprived of a. fair trial because statements made by the State during closing argument were improper. Defendants assert that the State’s repeated references to their membership in the street gang were solely for the purpose of inflaming the jury. The record discloses that statements given by defendants to an assistant State’s Attorney on the day of their arrest were read into evidence. In those statements, defendants stated that they, together with Lash, Myers and Davis were members of the same Chicago street gang. Defense counsel made a motion in limine to exclude that portion of the statement and to prohibit the State from referring to defendants’ gang activity. The trial court denied the motion because it found that the common membership of everyone, including the victim, was relevant.

Improper remarks made during closing argument constitute reversible error where they result in substantial prejudice to the defendant or where the statements serve no purpose except to inflame the jury. (People v. Tiller (1982), 94 Ill. 2d 303, 321; People v. Baptist (1979), 76 Ill. 2d 19, 29.) However, arguments and statements based upon the facts in evidence, or upon reasonable inferences drawn therefrom, are within the scope of proper argument. (People v. Williams (1967), 38 Ill. 2d 115, 125.) Since the evidence supports the State’s comments regarding gang activity, we find no error.

Defendants further argue that the State’s use of a felony murder example was erroneous and that comments during closing argument and rebuttal misstated the law of accountability. The record shows that the court responded to defendants’ objection in each instance by admonishing the jury that “the court will instruct the jury regarding the law.” Although an improper comment cannot always be remedied by an admonishment from the court (People v. Garrean (1963), 27 Ill. 2d 388, 391), we find that the admonishment here was sufficient to correct any alleged error. In light of our finding that the court properly instructed the jury on the law of accountability, we hold that the closing statements did not constitute error.

After our review of the record, we agree with the appellate court conclusion that there was sufficient evidence for the jury to find, beyond a reasonable doubt, that defendants were guilty of murder. For the reasons stated, the judgment of the appellate court is reversed and the judgment of the circuit court of Cook County is affirmed.

Appellate court reversed; circuit court affirmed.

JUSTICE SIMON,

dissenting:

The majority is not troubled by the prosecutor’s extensive commentary concerning the defendants’ common gang membership and gang activity. The reason given by the majority is that “the evidence supports the State’s comments.” (99 Ill. 2d at 517.) The defendants’ objection, however, was not that there was no factual basis in the record for making these statements, but that the statements were irrelevant and unfairly prejudicial. Gang membership and the activities of gang members may be relevant in cases in which the crime charged has some connection with the gang, such as where the members of one gang attack or take revenge on the members of another gang as the result of gang rivalry. However, in this case the victim was a member of the same gang as his attackers, and no gang-related motive for the slaying was argued or shown. The attack appeared to be spontaneous, and based on the evidence no reason for it is readily apparent.

Knowledge that Ronald and Duane Terry were street gang members did not aid in determining the extent of their involvement in the killing. Gangs are not popular among a great many members of our society, and the very knowledge that the defendants belonged to a gang might have served the impermissible purpose of causing the jurors to fear the defendants and to seek for that reason to convict them of a more serious crime than they might otherwise have. I would remand the cause for a new trial.


author: JUSTICE SIMON

text:
    (No. 58543.
    FONDULAC NURSING HOME, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Kim Levi, Appellee).

      Opinion filed February 22, 1984.

      Heyl, Royster, Voelker & Allen, of Peoria (Rex K. Linder and Robert E. Nesemann, of counsel), for appellant.
    Goldfíne & Bowles, P.C., of Peoria (James E. Bowles and John Lesaganich, of counsel), for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

This is an appeal by the claimant’s employer, Fondu-lac Nursing Home, from a decision of the circuit court of Peoria County reversing a decision of the Industrial Commission in its favor. The Industrial Commission reversed the arbitrator, who decided that the claimant’s back injury arose out of and in the course of her employment in a nursing home operated by Fondulac.

As a result of a previous work-related back injury that the claimant, Kim Levi, had suffered while employed by Fondulac, she was unable to return to work for several months. When she came back claimant was given light duties in order to comply with restrictions her physician had placed upon her because of her lumbar strain and in order to protect her against a recurrence of the injury. Her new assignment required her to give treatment to patients and care for their bedsores. The nursing home administrator as well as the assistant nursing director repeatedly instructed her that she was not to lift patients.

Two weeks after she returned to work, the claimant was making rounds which involved assisting patients who wanted to go to sleep. The head nurse at the time claimant was injured was Fondulac’s only witness. She testified that the wing of the nursing home in which the claimant was working at the time was one in which most of the patients were up and about and able to transfer themselves into their wheelchairs.

Upon entering the room of one of the patients who normally was able to ambulate without assistance, the patient asked the claimant for help in pivoting from her wheelchair into her bed. Claimant testified that when she began to assist the patient, she assumed she would be able to do so without actually lifting her. However, in the course of the maneuver the patient collapsed or commenced to fall; in order to save the patient from dropping to the floor and possibly injuring herself, the claimant held on to her and lifted her into bed. The result was that the claimant reinjured her back.

Fondulac contends that claimant’s back injury did not arise out of and in the course of her employment. The basis for this contention is that the claimant was instructed by her supervisors that her duties did not include lifting of patients and that she injured herself while doing something she was forbidden to do. Thus, Fondulac contends that the decision of the Industrial Commission that the claimant’s injury arose out of an unnecessary risk which her employer had instructed her not to undertake and which her employment did not require was not against the manifest weight of the evidence and should have been confirmed by the circuit court.

The claimant, on the other hand, argues that when she went to the assistance of the patient she did not anticipate it would be necessary for her to lift the patient. However, when the patient commenced to collapse or fall, an emergency arose which required the claimant to lift the patient in order to save her from possible injury and Fondulac from possible liability if she had been allowed to fall to the floor.

In explaining its decision and opinion on review, the Commission stated that it was “obvious that some lifting would very likely be required” when the claimant undertook to assist the patient from her wheelchair. This is not a finding of fact, but only an assumption, and the Commission stopped short of finding that it was a certainty that lifting would be required. The only basis for the assumption, according to the Commission, was the fact that the patient was sitting in the wheelchair and needed help. However, it failed to note that patients who use wheelchairs vary in their ambulatory capabilities and the kind of assistance they need, a fact which, if it is not intuitively obvious, was established by the testimony in this case of two employees of the nursing home, the claimant and Fondulac’s head nurse, who testified from professional experience. The only evidence regarding the nature of the assistance the patient would require was the claimant’s testimony that the patient asked for help in pivoting from her wheelchair into her bed on this occasion. In addition to the testimony that this was the only assistance which the patient requested and the claimant planned to offer, the evidence shows that the patient in question was ambulatory and that she lived in an area of the nursing home in which most of the patients were able to transfer themselves into wheelchairs. Thus even if we conceded that whether “some lifting would very likely be required” were a finding of fact by which we as a reviewing court would be compelled to abide if it is not contrary to the manifest weight of the evidence, rather than a speculation of a general nature which would not bind us, the Commission’s conclusion regarding the possible need for lifting is against the manifest weight of the evidence in view of the testimony of the only two witnesses who were heard. These were the claimant on her own behalf and the head nurse, called as a witness by Fondulac. Their testimony establishes that, under the circumstances which presented themselves to the claimant at the time the patient requested assistance, the claimant could reasonably have decided that she would be able to help the patient without lifting her. She was entitled to assess the situation as it was presented to her and to decide, as she did, that in performing this duty she would not be required to do any lifting, and thus would not be assuming an unnecessary risk to herself.

Even assuming that the claimant undertook a task she was not authorized to perform when she attempted to help the patient, the fact that the employer has in general terms forbidden an employee to undertake an act is not by itself sufficient to remove the act from the scope of the employment. (Imperial Brass Manufacturing Co. v. Industrial Com. (1922), 306 Ill. 11.) In this case the evidence demonstrates that she would not have lifted the patient had an emergency not arisen when the patient started to fall. The claimant faced a choice at that point of coming to the rescue of the patient or doing nothing and thereby preventing bodily injury to herself but allowing the patient to sustain an injury, perhaps a severe one, while under the care of Fondulac. Her decision and conduct at the time of the emergency served her employer’s interest as well as that of the patient by protecting Fondulac’s patient and saving Fondulac from a possible suit for injuries the patient might otherwise have suffered.

As a noted commentator on workers’ compensation has observed, “the scope of an employee’s employment is impliedly extended in an emergency to include the performance of any act designed to save life or property in which the employer has an interest” (1A A. Larson, The Law of Workmen’s Compensation sec. 28.11, at 5 — 323 (1983)). Even where “the origin of the emergency was claimant’s own act,” an employee’s injury is compensable when “the immediate occasion of his injury was his attempt to deal with a threat to his employer’s property” or other interest (1A A. Larson, The Law of Workmen’s Compensation sec. 28.12, at 5 — 331 (1983)), provided that the threat is one not unlikely to arise in the usual conduct of the employer’s business and the interest the employer has at stake is a vital one with respect to his business. In this situation, as Professor Larson explains, the claimant must be viewed as having implied directions from his employer or at least authority to undertake the risk involved in the rescue effort regardless of how the emergency arose. (1A A. Larson, The Law of Workmen’s Compensation sec. 28.12, at 5 — 331 (1983).) Because what the claimant did in this case was in the vital interest of Fondulac as her employer and was not a gross deviation from the ordinary tasks of a nursing home employee, it was consequently not beyond the scope of her employment, even if it may have exceeded the limitations placed upon her by Fondulac.

The cases cited by Fondulac are distinguishable. In Segler v. Industrial Com. (1980), 81 Ill. 2d 125, the claimant, a metal stamper, was cooking a frozen pot pie for his own consumption in one of his employer’s industrial ovens when he was injured. His use of an industrial oven as a microwave oven obviously did not benefit the employer in any way. In Kensington Steel Corp. v. Industrial Com. (1944), 385 Ill. 504, a somewhat more difficult case, a former millwright’s helper who had been reassigned to another line of work by his employer attempted to fix machinery which was under the exclusive care of the employer’s millwrights and which he believed was malfunctioning; the court held that he had stepped out of the course of his employment in so doing because the circumstances did not reasonably indicate that there was an emergency. The circumstances of the case at bar are different. An employee of a nursing home has the implied discretion to take such action as is reasonable and necessary to protect patients from injury resulting from a clearly impending emergency even though the emergency was caused by the employee disobeying instructions from a superior. Were this not the case, an employee who is in a position to save a patient from injury would be faced with an impossible choice between doing so and refraining, against her better judgment and the ethics of her profession, from rendering assistance in order to save herself from an injury for which she could not be compensated. An employee who refrains from acting to save the patient in these circumstances because of limitations placed on her duties by her employer is fulfilling her obligations to neither the patient nor the employer.

Although in its decision and opinion on review the Industrial Commission Stated that “[tjhis was not an emergency situation,” in doing so it obviously was referring to the situation at the time the patient first requested assistance. At that time, as the Commission pointed out, the claimant could have gone to get someone else to render the assistance requested. However, after the claimant decided that she could assist the patient in the pivoting maneuver and the patient then unexpectedly began to collapse or fall, an emergency clearly existed and any finding of the Commission to the contrary would have been against the manifest weight of the evidence.

The decision of the Industrial Commission that the claimant’s injury did not arise out of and in the course of her employment was not only against the manifest weight of the evidence but erroneous as a matter of law. The circuit court reached the proper conclusion when it reversed the Industrial Commission’s decision; we affirm its judgment and remand the cause to the Commission for proceedings consistent with the views herein expressed.

Judgment affirmed; cause remanded, with directions.


author: Mr. Presiding Justice Scheineman

text:
    Ernie Piper, Plaintiff-Appellee, v. State Farm Mutual Automobile Insurance Company, Defendant-Appellant.
    Term No. 53-O-4.

      Opinion filed October 31, 1953.
    Released for publication December 22, 1953.
    Feirich & Feirich, of Carbondale, for appellant.
    Loyd M. Bradley, of Carbondale, for appellee.
   Mr. Presiding Justice Scheineman

delivered the opinion of the court.

The plaintiff, Ernie Piper, had obtained an automobile insurance policy from the defendant, State Farm Mutual Automobile Insurance Company. The policy was dated September 15, 1950, and was for six months’ period, expiring March 15, 1951.

During this period, on November 30,1950, the plaintiff’s automobile was involved in a collision resulting in injuries and damages to other persons. The company denied liability under the policy, informed plaintiff thereof, and also notified the parties asserting claims thereof, but the plaintiff effected settlements with the other persons and paid out sums of money to them aggregating $500 or more, and brought this suit to obtain reimbursement from the insurance company. A jury returned a verdict for $500 in favor of the plaintiff and judgment was entered thereon from which this appeal was taken. The defendant had filed appropriate motions for directed verdict and for new trial, all of which had been overruled.

The defenses offered were these: That the insurance policy had been cancelled as of November 28, 1950, for nonpayment of premium and due notice thereof was given plaintiff. The policy had been reinstated as of December 2, 1950, when the company received the premium from the plaintiff, without notice that the automobile had been involved in an accident in the interim.

The plaintiff did not deny any of these statements of fact, but asserted that the alleged nonpayment of premium, and cancellation, had been waived.

A second defense was that the evidence discloses the plaintiff was not driving his car at the time of the collision and no evidence of agency was offered nor any evidence of circumstances which would indicate liability or fault of the plaintiff or the driver of plaintiff’s car. The plaintiff paid the claims to avoid suspension of his license under the Safety Responsibility law, and made no attempt to show that he was actually liable to the claimants. From which the defendant argues there is no basis to hold it liable, even if the policy was in force, since it did not contract to pay without question, any asserted claims, regardless of their validity. °

There were also objections to rulings on evidence and instructions, and the further defense that the company was not liable for mere voluntary settlements made by the plaintiff. On this appeal, the plaintiff now asserts that his suit was not upon the policy but for damages for breach of contract.

There was no contract introduced in evidence other than the policy, and we know of no principle of law by which a plaintiff suing for damages for breach of contract can assert better or different terms of a contract than those in the contract alleged to be breached or cancelled. The case was tried by plaintiff on the theory that the nonpayment of premium had been waived, and the policy reinstated and in full force and effect; and the jury was instructed on that basis.

In our opinion the plaintiff has no possible basis to claim damages from the company if the policy was actually cancelled for nonpayment of premium before the collision and was not in force at that time.

On the other hand, if the policy was still in force as plaintiff contended, it contained this provision: “No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.”

Considering this last defense first, we are of the opinion it is decisive of the case. While no precedent has been cited to this court from the State of Illinois, this type of provision has been considered by many courts in a variety of jurisdictions.

There are some variations in the decided cases where an insured purports to make a settlement only for such liability as he may have in excess of his insurance coverage. No such question is presented in this case. Otherwise, every court which has considered the provision above quoted has held it valid, enforceable, and essential.

In the case of Wisconsin Zinc Company v. Fidelity & Deposit Co., 162 Wis. 39, 155 N. W. 1081, the court said: “It is pretty evident that, if the insurer entrusted the matter of making settlements to its numerous policy holders, its existence would be precarious. We are all apt to be generous when it comes to spending the money of others. So long as the law countenances, and to some extent encourages, insurance of this character, the right of making voluntary settlements must, almost as a matter of necessity, rest with the insurer rather than with the insured. An insurance company could hardly be expected to do business on any other basis, because it furnishes the only safeguard available against the payment of excessive damages.”

In Thacher v. Aetna Accident & Liability Co. of Hartford, Conn., 287 Fed. 484, 28 A. L. R. 1280, the court held that the above type of clause was valid and the insurer was entitled to its protection on the specific ground that an insurance company does not agree to recognize liabilities whenever a claim is presented.

In Marvel Heat Corp. v. Travelers Indemnity Co., 325 Mass. 682, 92 N.E.2d 233, the court held under a similar clause that when the insured made a voluntary settlement without the consent of the insurer and without its obligation to pay determined by judgment, the insurer is released from all liability. Other jurisdictions reaching a similar result include: Hughes v. Hartford Accident & Indemnity Co., 223 Ala. 59, 134 So. 461; Royal Indemnity Co. v. Jenkins Const. Co., 248 Ky. 839, 60 S.W.2d 105; Kennelly v. London Guarantee & Accident Co., 184 App. Div. 1, 171 N. Y. Supp. 423; Stephens v. Pennsylvania Casualty Co., 135 Mich. 189, 97 N. W. 686; New Amsterdam Casualty Co. v. East Tennessee Telephone Co., 71 C. C. A. 568, 139 Fed. 602, cert. denied, 201 U. S. 646, 50 L. Ed. 903, 26 S. Ct. 761. The reasoning in these various decisions is unassailable.

We, therefore, hold in this case that the quoted clause is unequivocal, valid and enforceable, and that this clause bars the present action on the undisputed facts. It is unnecessary for the court to pass upon the other questions raised. The judgment entered in the court below is reversed.

Judgment reversed.

Culbertson and Bardens, JJ., concur.


author: Mr. Presiding Justice Feinberg

text:
    Virgil Johnson, Plaintiff-Appellee, v. James V. Moon, Administrator of Estate of James George Moon, Deceased, Defendant-Appellant. James V. Moon, Administrator of Estate of James George Moon, Deceased, Counterplaintiff-Appel-lant, v. Safeway Truck Lines, Inc. et al., Counter-defendants-Appellees.
    Gen. No. 46,059.

      Opinion filed December 2, 1953.
    Rehearing denied December 30, 1953.
    Released for publication December 30, 1953.
    Ralph F. Himmblhoch, of Chicago, for appellant; Ralph F. Himmblhoch, of Chicago, of counsel.
    Kirkland, Fleming, Green, Martin & Ht.t,ts; for certain appellees; Saul A. Epton, of Chicago, for certain other appellee; Edward A. Scott, Max E. Wild-man, and John M. O’Connor, Jr., all of Chicago, of counsel.
   Mr. Presiding Justice Feinberg

delivered the opinion of the court.

Plaintiff brought this action against James V. Moon, administrator of the estate of James George Moon, deceased, to recover for property damage to plaintiff’s tractor and trailer, arising out of a collision with an automobile owned and driven by the deceased, alleging negligence on the part of the deceased.

The administrator, by leave of court, filed a counterclaim against plaintiff and making Safeway Truck Lines, Inc., Philip K. Saxton and Kenneth Johnson third-parties defendant, alleging negligence against all of the counterdefendants in the operation of the trailer-tractor involved in the collision causing the death of said deceased. Summons was issued against the last named counterdefendants.

After appearance and jury demand, counter defendant Safeway Truck Lines made a motion to vacate the order entered February 16, 1951, which allowed the filing of the counterclaim against it and the other counterdefendants, and to dismiss the action as to said counterdefendants. On June 16, 1952, this motion was allowed and the suit dismissed as to said counter-defendants, with costs taxed against said counterclaim-ant.

The following day the administrator moved to vacate the order of June 16 upon the ground, principally, that Judge Ward had no right or authority to review the order of Judge Sbarbaro entered on February 16,1951, allowing the filing of said counterclaim, and therefore the order entered by Judge Ward was void ab initio. This motion was denied on October 16, 1952. This appeal is by counterclaimant from the orders of Judge Ward entered June 16,1952, and October 16,1952.

The only questions presented by this appeal are whether Judge Ward was without authority in entering the order of June 16, 1952, and whether there was error in dismissing the action as to said counterdefend-ants.

There is no merit in the point as to lack of authority. It appears that Judge Ward had been designated and was acting as head of the law division and

assignment and motion judge in jury cases, hence the reason for bringing the motion to dismiss for hearing before him. The order entered by Judge Sbarbabo, granting leave to file the counterclaim, was merely interlocutory, not a final order or judgment, and was subject to change at any time before final judgment entered in the case. Roach v. Village of Winnetka, 366 Ill. 578, 581.

Counterclaimant contends that he had a right under sections 25 and 38 of the Civil Practice Act (Ill. Bev. Stat., ch. 110 [1953, §§ 149, 162; Jones Ill. Stats. Ann. 104.025, 104.038]) to file his counterclaim bringing in third parties as counter defendants.

Section 25 allows bringing in new parties “where a complete determination of the controversy cannot be had without the presence of other parties . . . where a person, not a party, has an interest or title which the judgment may affect.”

Section 38 provides: “Subject to rules, any demand by one or more defendants against one or more plaintiffs, or against one or more co-defendants, whether in the nature of set-off, recoupment, cross-bill in equity or otherwise, and whether in tort or contract, for liquidated or unliquidated damages, or for other relief, may be pleaded as a cross-demand in any action, and when so pleaded shall be called a counterclaim.”

It will be noted that section 38 allows the filing of such a counterclaim against one or more plaintiffs, or against one or more codefendants. The instant counterclaim is directed against those who were not at the time codefendants and, therefore, section 38 is not applicable to them. Aaron v. Dausch, 313 Ill. App. 524, 538; Countiss v. Whiting, 306 Ill. App. 548, 552; and Chicago Title & Trust Co. v. Wolchinovesky, 326 Ill. App. 194.

Counter claimant relies chiefly upon Curran v. Harris Trust & Savings Bank, 348 Ill. App. 210. The case cited is not applicable. It involved the question as to whether a defendant could, by countercomplaint in the nature of interpleader, and for injunctive relief, bring in a third-party defendant, not a party to the action, but who made claim to the fund in question. The court there observed, p. 215, that sections 25 and 38 of the Civil Practice Act, when construed together, were designed to continue the previous chancery practice with respect to parties to cross-bills.

Counterclaimant argues that section 4 of the Civil Practice Act [Ill. Rev. Stats. 1953, ch. 110, § 128; Jones Ill. Stats. Ann. 104.004] provides that the Act be liberally construed, and that when read in connection with sections 25 and 38, it furnishes sufficient basis for the right to maintain the counterclaim.

Section 25, it will be seen, provides that new parties may be brought in “where a complete determination of the controversy cannot be had without the presence of other parties.” In the instant action, the counterclaim directed against the plaintiff as the owner of the trailer-tractor, and which alleged negligence in the operation of the trailer-tractor, causing the death of decedent, can be fully determined as to plaintiff without the presence of the counterdefendants named. Furthermore, said counterdefendants would not be bound or their rights affected by any determination of the issues raised by the counterclaim against plaintiff. Hence, section 25 is not applicable to this situation.

We think the court correctly dismissed the counterclaim as to the counterdefendants, not parties to the original action.

The judgment is affirmed.

Affirmed.

. Kiley and Lews, JJ., concur.


author: Mr. Presiding Justice Peinberg

text:
    Katherine L. Gillam et al., Appellees, v. 661 Sheridan Apartments, Inc. et al., Defendants. On Appeal of 661 Sheridan Apartments, Inc., Andrew S. Krantz, and Edward G. Krantz, Individually and as Directors and Officers of 661 Sheridan Apartments, Inc., Appellants.
    Gen. No. 46,144.
    Opinion filed December 2, 1953.
    Released for publication December 30, 1953.
    Eckert, Peterson & Deeming, and Daniel A. Costi-gan, all of Chicago, for appellants; Daniel A. Costi-gan, Owen Ball, and Herbert C. Doth, Jr., all of Chicago, of counsel.
    Bussell J. Topper, of Chicago, for appellees.
   Mr. Presiding Justice Peinberg

delivered the opinion of the court.

This is an interlocutory appeal by defendants from an order granting a preliminary injunction restraining until the further order of the court the corporate defendant and its officers from taking, withdrawing or paying, or otherwise applying, any of the funds, moneys, credit or other assets of the corporate defendant for the payment of expenses, costs or fees incurred, or to be incurred, by said officers in their separate or joint defense of these proceedings, and from paying or receiving any of the funds of the corporate defendant for the purpose of paying the salaries, fees or compensation of said officers in connection with the conduct, operation or management of the corporate defendant.

The injunction was issued upon the verified complaint, the sworn petition for the issuance of the restraining order, and the sworn answers to said complaint and petition. No evidence was heard.

The only question presented by this appeal is whether the chancellor abused his discretion in issuing the preliminary injunction upon the pleadings. Forster v. Fruin & Walker Co., 170 Ill. App. 89. The determination of the question necessitates a recital of the essential facts alleged in plaintiffs’ pleadings as well as the defendants’ answers.

Plaintiffs’ complaint, as amended, and the petition for the restraining order allege, inter alia, that the corporate defendant owns and operates an apartment building containing furnished and unfurnished apartments, which it rents; that defendant Andrew Krantz since May 1946, continuously has been the president and director of the corporation, and defendants Hanson and Edward Krantz, respectively, have been vice president and secretary and treasurer as well as diree-tors of the corporation; that said building is encumbered with a mortgage, upon which there is due approximately $65,000; that plaintiffs have been stockholders since the date of the original issue of capital stock and are the record holders and owners of 10,907 shares of common capital stock of the corporation; that the corporate property was the subject of a reorganization plan approved in proceedings in the United States District Court, in which bondholders were allowed to exchange the defaulted bonds for stock in the corporate defendant; that under said reorganization plan, defendants Andrew Krantz, Edward Krantz and Fred Hanson have been acting as such officers and directors of the corporation; that Andrew Krantz is the principal party in interest; that Edward Krantz, his brother, has continuously and exclusively acted in the interest of Andrew; and that defendant Hanson is the nominee of Andrew and also has acted throughout the period in the interest of Andrew in the management of the corporate assets and property.

It is further alleged that the individual defendants named have for a long time and are presently engaged, jointly and severally, in a systematic and fraudulent program designed to acquire the ownership and majority control of the corporate stock of the corporate defendant for their exclusive personal benefit and profit; that to carry out their said scheme, said defendants secretly purchased and acquired a substantial number of shares of capital stoclc at prices substantially less than their true value by withholding and concealing from the owners of said stock their true value, and the material and necessary facts to reasonably determine such value; that they unlawfully solicited stock proxies, and thereafter wrongfully used and voted fraudulent or expired stock proxies at the only meeting of stockholders, which was a special meeting, and not an annual meeting, held November 27, 1950; that such fraudulent or expired proxies represented shares of stock exceeding 50,000 shares; that said defendants unlawfully and fraudulently retained the management and control of said corporate property by wilfully suspending all stockholders’ meetings and refusing to call stockholders’ meetings, except the said meeting of November 27,1950, which was a special meeting; that by such suspension of annual meetings, the defendant unlawfully and fraudulently prevented the stockholders from challenging the propriety of the management and authority of said defendants.

It is alleged that it became necessary for plaintiffs, after their many efforts during a period of five years to obtain information concerning the true financial condition and operation of said corporate property, to institute in February 1952, a mandamus proceeding in the circuit court of Cook county; that through such proceedings they were for the first time able to obtain any material information as to the condition of said corporation; that said defendants have charged, assessed and paid out of the corporate funds to themselves illegal, excessive and fraudulent salaries or compensation, which absorbed all of the corporate profits and earnings for the entire six-year period of their management and operation; that said defendants mismanaged the said corporation in that they grossly neglected for a number of years to file corporate annual reports with the Secretary of State, as required by law, and to pay state franchise taxes, which mismanagement resulted in the filing by the State of Illinois a proceeding to dissolve the said corporation, and a decree of dissolution was entered in said proceeding on April 30, 1947; that because of said gross neglect and mismanagement, one of the stockholders of the corporation on August 25, 1947, instituted a partition proceeding, which sought the sale of the corporate property; that in such proceeding a receiver for the corporate property was appointed; that said proceedings were settled and were dismissed, resulting in substantial fees and expenses charged and paid out of the funds of said corporation at the direction of said defendants; and that substantial penalties, taxes, fees and costs in connection with the dissolution decree obtained by the State of Illinois for the failure to pay franchise taxes were charged to and paid out of the corporate funds.

It is further alleged that for a long time prior to March 8,1948, defendants unlawfully violated the Federal Housing and Kent Act by charging twenty-one tenants of said corporation rents in excess of the lawful maximum; that said tenants instituted an action against the corporation in the United States District Court to recover treble damages, which action defendants were compelled to compromise and settle, and substantial fees, expenses and costs were charged to and paid out of the funds and moneys of the corporation at the direction of said defendants; and that there are in excess of 250 stockholders in said corporate defendant, to whom the benefit of the instant proceedings are extended and brought on their behalf.

Defendants, by their answers, categorically deny the charges in the complaint, as amended, and the petition, except that they admit the facts relating to the proceeding instituted by the State of Illinois for the failure to file annual reports and the payment of franchise taxes, and the institution of the partition suit following. Defendants allege as an excuse for failure to hold annual meetings that C. T. Burnett, formerly a director of the corporation, fraudulently issued and raised the number of shares of outstanding certificates of stock, which stock so issued was declared fraudulent and void in an action instituted in the circuit court of Cook county by other stockholders, and a decree entered in said proceeding on November 10, 1949; that no annual meetings of stockholders were called between 1946 and 1949 because it was impossible to determine the extent of the outstanding stock so fraudulently issued and which would not be qualified to vote at meetings of stockholders; and that following the decree referred to, a meeting of the stockholders was held on November 27, 1950.

Defendants earnestly contend that the chancellor abused his discretion in issuing the temporary injunction without hearing evidence, when answers were on file denying the material averments of the complaint and petition.

An examination of the cases relied upon by defendants discloses they are either injunction proceedings where the granting of the preliminary injunction is virtually the granting of the ultimate relief upon final hearing, or cases where, under the particular circumstances, it was declared an abuse of discretion to issue the preliminary injunction. However, all of the cases agree that the primary question presented upon an appeal from a preliminary injunction is whether the chancellor abused his discretion in its issuance, and whether such a preliminary injunction destroys rather than preserves the status quo. Upon careful consideration of the charges in the complaint and the supporting petition in the instant case, and defendants’ answers, we are satisfied that the chancellor did not abuse his discretion in the issuance of the preliminary injunction.

In Forster v. Fruin & Walher Co., 170 Ill. App. 89, a preliminary injunction was issued to restrain the payment of salaries to the officers of the corporation. There was an answer on file denying the allegations of the complaint. No evidence was heard, and the propriety of the issuance of said injunction was attacked. This court there held that the issuance of the temporary injunction had merely the effect of holding matters in status quo until the final disposition of the case, and that there was no abuse of the discretionary powers of the chancellor. To the same effect is Fitzgerald v. Christy, 242 Ill. App. 343.

We are convinced, weighing the relative harm to the defendants by this injunction and the benefit to the plaintiffs, that the injunction properly preserves the status quo and does no serious harm to the rights of the defendants.

Accordingly, the order is affirmed.

Affirmed.

Kilet and Lews, JJ., concur.


author: Mr. Justice Kilby

text:
    Mae Cox Tailby, Plaintiff-Appellant, v. Clarence Burr Tailby, Margaret S. Tailby, and Henry Scarborough, Defendants-Appellees.
    Gen. No. 46,075.

      Opinion filed December 2, 1953.
    Released for publication December 30, 1953.
    Isaac I. Bender, of Chicago, for appellant.
    Bussell J. Topper, of Chicago, for appellees.
   Mr. Justice Kilby

delivered the opinion of the court.

This is an action to discover assets, for an injunction and for a receiver, in aid of collection of a judgment for accrued alimony. The chancellor dismissed the complaint for want of equity as to the defendants Tail-by. Plaintiff filed a notice of appeal from the decree of dismissal and from subsequent orders denying motions to modify the decree and for change of venue.

Plaintiff is not a resident of Illinois. She sued the defendants Tailby, who reside in Macon county, Illinois, and Scarsborough, a resident of Cook county, in the superior court of Cook county. Margaret S. Tailby was not served. Clarence B. Tailby was served, but did not appear, and was defaulted. Scarsborough was served and answered.

The suit was upon a judgment against Clarence B. Tailby rendered in Shelby county, Illinois. Though Margaret S. Tailby was not served, she appeared specially and made the motion to dismiss. The motion rested on two grounds, but only one — that of wrong venue — is now relevant.

The chancellor dismissed the action against the defendants Tailby for want of equity, and the implication is that he thought Margaret S. Tailby’s motion constituted a general appearance. If the implication is true, the court erred. Her motion constituted her special apearance under § 20 of the Civil Practice Act (chap. 110, par. 144, Ill. Rev. Stat. (1953) [Jones Ill. Stats. Ann. 104.020]). Under that section as amended in 1945, she was entitled to appear specially by her attorney. The dismissal is improper in dismissing “for want of equity.” Thurber Art Galleries v. Rienzi Garage, 288 Ill. 35, 39. The suit should have been dismissed simply or for improper venue.

In an affidavit supporting her motion to dismiss, Margaret S. Tailby relied upon a material deficiency in the complaint. She pointed out that there was no allegation that at the time of the filing of the “creditor’s bill” Scarsborough had in his possession assets due Clarence B. Tailby. (Chap. 22, par. 49, Ill. Rev. Stat. (1953) [Jones Ill. Stats. Ann. 106.12].) The allegation was necessary to lay venue in Cook county of the action against her, and was not made. Plaintiff, instead of amending her complaint to supply the deficiency, filed an answer to the motion to dismiss. The answer did not aid the complaint and, therefore at the time the dismissal order was entered she had made a proper showing that venue was improperly laid in Cook county as to her.

The suit was dismissed also as to Clarence B. Tailby. He was in default at the time. No decree was, and none could have been, rendered against him in Cook county because a decree was not also rendered against Scarsborough, the resident defendant. This is because section 7 of the Civil Practice Act (chap. 110, par. 131, HI. Rev. Stat. (1953) [Jones Ill. Stats. Ann. 104.007]) authorizes decrees against non-resident de-fondants, where damages or recovery of money is sought, only (a) when a decree is also rendered against the resident defendant, or (b) where the non-resident appears generally and defends on the merits and the record or evidence shows probable cause for, and good faith in, joining the resident defendant. Language contained in section 11 of the Civil Practice Act before the 1947 amendment similar to that in the latter alternative in section 7 [set forth above in (b)] was construed by this court in Heldt v. Watts, 329 Ill. App. 408 as precluding non-residents who had not appeared.

A decree in Cook county against Clarence B. Tailby therefor presupposes that plaintiff has pleaded and proved Scarborough had something of value due Clarence B. Tailby at the time suit was filed. This implies a proper amendment to the complaint supplying the deficiency responsible for dismissal as to Margaret S. Tailby. Under the amendment and proper service on Margaret S. Tailby she would be in the same position as Clarence B. Tailby. The dismissal order was not a decision on the merits. City of Geneseo v. Illinois Northern Utilities Co., 378 Ill. 506, 514; 27 C. J. S. 197.

Scarsborough’s answer raised the issue of whether he had anything of value due Clarence B. Tailby when suit was filed. That issue is still pending. As to Clarence B. Tailby, a non-resident, the dismissal decree was therefor premature.

Normally a court or chancellor could transfer a cause to the proper county. Heldt v. Watts, 329 Ill. App. 408. The chancellor in the instant case, however, properly denied the motion which was not limited to the defendants Tailby. Scarborough by answering the complaint disclosed his willingness to proceed in the county of his residence. Had the suit been commenced in Shelby or Macon county, Scarsborough would have had the privilege of objecting to the venue. It would be unfair to deprive him of the privilege in Shelby or Macon county which Margaret S. Tailby used to defeat plaintiff’s suit in Cook county.

For the reasons given the order appealed from is modified by eliminating the words “for want of equity” and is affirmed as to Margaret S. Tailby. The order is reversed as to Clarence B. Tailby. The cause is remanded for further proceedings consistent with this opinion.

Order modified and affirmed as to Margaret 8. Tail-by, reversed as to Clarence B. Tailby and the cause remanded.

Feinberg, P. J. and Lews, J., concur.


author: Mr. Justice Lews

text:
    Czeslaw Tomaszewski, Appellant, v. Sam George, Appellee.
    Gen. No. 46,045.

      Opinion filed December 2, 1953.
    Released for publication December 30, 1953.
    Ader & Ader, of Chicago, for appellant; Morris K. Levinson, of Chicago, of counsel.
    Harvey K. Cousens, of Chicago, for appellee.
   Mr. Justice Lews

delivered the opinion of the court.

Plaintiff brought an action to recover damages alleged to have been caused by defendant’s wanton and malicious alienation from plaintiff of his wife’s affection.

Defendant having been defaulted for failure to file an appearance or answer, the cause was submitted to a jury on June 20, 1952, which found that malice was the gist of the action and assessed plaintiff’s damages at $5,000. Judgment was entered accordingly on the same day.

August 20,1952 defendant filed his verified petition, supported by three affidavits, signed by defendant’s wife and two other persons praying that service of summons be quashed and that the default judgment be vacated. After a hearing on the petition the relief prayed for was granted. Plaintiff appeals.

As grounds for quashing the service of summons, the petition alleged that (a) the deputy sheriff who filed the return purporting to serve defendant by leaving a copy of the summons with his wife on May 1,1952 did not inform her of the contents thereof as provided by chapter 110, section 137, paragraph 13 of the Illinois Revised Statutes of 1949 [Jones Ill. Stats. Ann. 104.013]; (b) that the service of summons had upon defendant’s wife was not at defendant’s usual place of abode as required by statute; (c) that the person serving the summons did not identify himself as an officer of the law; and (d) that defendant never received a copy of the summons in the United States mail.

At the hearing one Sarli, a deputy sheriff, was asked to tell how he served Martha George, defendant’s wife. He replied, “I drove up to this address and parked my car ten or fifteen feet away from there. I walked toward the address that I was looking for. As I was walking up to the place Mrs. George came over. She thought at first that I was a contractor. She was expecting a contractor. This is the story she told me, that she was getting her steps fixed. I asked for her husband but he was not in, so I served her. I told her I had a summons for her husband, that she could accept it, and she accepted it.” The witness also testified that he did not tell Mrs. George “the contents of the summons”; that at the time he delivered the summons to Mrs. George she was talking to “two or three other women there on the sidewalk about ten or fifteen feet away from her residence.”

The sheriff’s return signed by Sarli, his deputy, states that a copy of the summons was mailed on “the first day of May 1952 in a sealed envelope with postage prepaid addressed to defendant at his usual place of abode.”

The record discloses that the following question was propounded to Sarli: “Do you recall whether you sent Mr. Sam George a copy of the summons in an addressed envelope to him at that address properly postmarked with the proper postage?” The witness answered: “As far as I can remember I do not believe I sent him a copy.”

The petition alleges inter alia that the first notice defendant received of the judgment entered against him was when his wife was served with a writ of execution on or about August 8, 1952; that defendant never received a copy of the summons in the United States mail, and that defendant and his wife cannot read or write the English language.

From a careful reading of the petition we think it alleges facts which constitute a good and meritorious defense to the alienation suit.

Plaintiff contends that the sheriff’s return may not be impeached after lapse of the term at which the judgment was entered.

In Nikola v. Campus Towers Apt. Bldg. Corp., 303 Ill. App. 516, plaintiff filed an action to recover damages for personal injuries and a default judgment was entered against defendant. After term time defendant filed a verified petition averring that defendant was never served with summons. In that case plaintiff contended that a judgment cannot be vacated in the same proceeding after thirty days from the entry thereof except under the provisions of section 72 of the Civil Practice Act [Ill. Rev. Stats. 1953, ch. 110, § 196; Jones Ill. Stats. Ann. 104.072]. After tracing the use of the writ of error coram nobis in this State, its abolition, and the substitution of a motion in its place under the provisions of section 72 of the Civil Practice Act, this court concluded that relief could be granted by a motion in the same case, for the reason that in equity a person may have relief against a false return occasioned by mistake, thus dispensing with the necessity of filing a bill in chancery as formerly required. See Owens v. Ranstead, 22 Ill. 161; O’Conner v. Wilson, 57 Ill. 226. The Nikola case was cited with approval in the recent case of Ellman v. De Ruiter, 412 Ill. 285. In the Ellman case the defendant was defaulted and judgment was entered in favor of plaintiff. More than thirty days after the date on which the judgment was entered, defendant filed a motion supported by affidavits, under section 72 of the Civil Practice Act, to set aside the judgment on the ground that the entry had resulted from an error of fact and excusable mistake. The court said, at page 292:

“While our present Civil Practice Act has not effected a complete amalgamation of the practice and procedure in common-law and suits in equity in this jurisdiction it is our opinion that there has been a fusion sufficient to enable a court of law, when the occasion demands it, to apply equitable principles in administering the summary relief available under the motion which has been substituted for writ of error coram nobis. Stated differently, it is our belief that the motion may, under our present practice, be addressed to the equitable powers of the court, when the exercise of such power is necessary to prevent injustice.”

The petition filed in the instant case is addressed to equitable powers of the court. We think it falls within the purview of section 72 of the Civil Practice Act, and the question determined in Ellman v. De Ruiter, 412 Ill. 285, is so nearly analogous to the one presented in this case, that the decision in the Ellman case should control.

Plaintiff says that the sheriff’s return will not be set aside upon the uncorroborated testimony of the person upon whom the service was made. The testimony of the deputy sheriff, Sarli, substantially corroborated the allegations of the defendant’s verified petition and the statements contained in the three affidavits attached to the petition.

The return of an officer making service of a summons for a defendant by copy delivered to another person must show a strict compliance with every requirement of the statute authorizing such service or the court will not obtain jurisdiction of the person. (Werner v. W. H. Shons Co., 341 Ill. 478.) In the instant case the testimony of the deputy who made the return impeaches the sheriff’s return. This testimony and the uncontroverted allegations of the verified petition and affidavits are in our view sufficient to warrant setting aside the judgment.

For the reasons stated, the order is affirmed.

Order setting aside default judgment affirmed.

Feihberg, P. J. and Kiley, J., concur.


author: Mr. Justice Culbertson

text:
    John Heimsoth, Plaintiff-Appellant, v. Falstaff Brewing Corporation, Defendant-Appellee.
    Term No. 53-O-6.

      Opinion filed December 14, 1953.
    Released for publication January 4, 1954.
    John R. Sprague, of Belleville, and Gilbert Rosch, of Granite City, for appellant.
    McGlynn & McGlynn, of Bast St. Louis, for appel-lee.
   Mr. Justice Culbertson

delivered the opinion of the court.

This appeal arises from an action which was brought to recover damages occasioned by appellant, John Heimsoth (hereinafter called plaintiff) becoming ill from consuming a portion of a bottle of Falstaff beer, which contained a “prophylactic latex.” At the trial with the jury, the court below granted defendant’s motion at the close of plaintiff’s evidence to find defendant not guilty and judgment was entered on the directed verdict in favor of appellee, Falstaff Brewing Corporation (hereinafter called defendant). The sole question before us is whether or not the court properly-directed a verdict at the close of plaintiff’s case.

A motion for directed verdict presents the single question of whether there is any evidence fairly tending to prove plaintiff’s case, and the court on such motion should not weigh the evidence or consider its preponderance (Blumb v. GetZ, 366 Ill. 273; Peters v. Peters, 376 Ill. 237). The evidence must be regarded in its aspect most favorable to the plaintiff against whom the motion is directed (Mitchell v. Louisville & N. R. Co., 375 Ill. 545; Shutan v. Bloomenthal, 371 Ill. 244).

A bottling company impliedly warrants to the public that the product it sells when it leaves the control of the bottling company is fit for human consumption (Williams v. Paducah Coca Cola Bottling Co., Inc., 343 Ill. App. 1; Patargias v. Coca-Cola Bottling Co. of Chicago, Inc., 332 Ill. App. 117; 1951 Illinois Revised Statutes, chapter 56%, paragraphs 7, 8 and 41 [Jones Ill. Stats. Ann. 53.007, 53.008, 53.043]).

The purchaser of food from the seller, in view of the implied warranty of quality in the sale of food, has a remedy either as against the person from whom the food was last purchased, or against any prior seller, or the producer of the article (Williams v. Paducah Coca Cola Bottling Co., Inc., supra; Bowman v. Woodway Stores, Inc., 258 Ill. App. 307). If a customer, however, elects to fix a liability upon a remote seller he must assume the burden of proving that the condition of the food or the article at the time when it left the control of that remote seller was the same as immediately prior to its consumption, or that it had not been tampered with, or adulterated in the interim. That burden, it has been stated, could be fulfilled in a case of the type before us, in one of two ways: (First) By

proof that there was no reasonable opportunity for tampering with the bottle, in which case there would be an inference that the bottle was in the same condition as when it left the manufacturer’s control; and, (secondly) If the evidence disclosed that there was a reasonable opportunity for tampering with the bottle, by proof that there actually was no tampering or adulteration (Williams v. Paducah Coca Cola Bottling Co., Inc., supra). The evidence on these issues may be direct or circumstantial, of necessity (Williams v. Paducah Coca Cola Bottling Co., Inc., supra). There is no requirement that the plaintiff prove his case beyond a reasonable doubt, or exclude every possible hypothesis suggesting a cause other than negligence. The maximum requirement is that there be a preponderance of the evidence that the defendant breached its warranty and that the breach resulted in the injury (Coca-Cola Bottling Co. of Henderson v. Munn, 99 F. 2d 190).

The evidence presented by plaintiff in the case before us showed that the defendant Brewing Company had a brewery in St. Louis, Missouri; that the bottle of beer which was the subject of the action left defendant’s control when it was delivered to Murdock Distributing Company, which had a branch in East St. Louis, Illinois, about one block from the Biedel Tavern. The Biedel Tavern was one of the Murdock Distributing Company’s customers. The beer was picked up by the Murdock Company in one of its own tractor trailers. These trucks were all closed, van bodies, with doors on them, and when the beer is loaded on the trucks it is the practice to keep the doors locked. The beer was then taken six miles from the defendant Brewing Company to the Murdock place of business in East St. Louis, in the locked vans. Thereafter, the beer was taken to the Murdock Distributing Company’s premises and placed in a warehouse in charge of the manager, which warehouse is kept under lock and key when no one is there, and under the supervision of the employees of Murdock when it is not locked. The manager of the warehouse testified that none of the Falstaff beer which was in the warehouse had ever been tampered with in his presence. The manager, of course, had no independent recollection of the particular bottle of beer. There was no specific evidence as to how long the beer had been in the possession of the Murdock Distributing Company. Falstaff beer was delivered at the Riedel Tavern and taken downstairs by Mr. Riedel. The beer was never stored on the street floor of the Riedel tavern.

On April 2,1951, beer, including the particular bottle of beer in question, was brought up from the basement by Riedel. The beer was put in a cooler-box by Riedel, underneath the bar. From 4:00 p. m. to 10:00 p. m. on April 2, 1951, a Phil Lendfried was the bartender at the bar. He testified he had not tampered with the bottle in question and no one else tampered with the bottle. He also testified that he had been a bartender for nine years and had dispensed thousands of bottles of beer, and knew the difference between flat beer and beer with life in it, and stated that if the cap comes off with a pop the beer has life in it, but if the cap comes off easily and there is no foam the beer is dead, or flat, and that beer which had been opened would be flat. This same observation was concurred in by another bartender who testified on behalf of plaintiff. Both bartenders testified that if the cap had been taken off the bottle of beer and put back on the bottle of beer, the beer inside the bottle would get flat, and that it would take about an hour or so for the bottle to get flat.

The bartender also testified that he remembered the plaintiff coming into his place of business about 10:00 or 10:30, and he recalled the plaintiff purchasing the bottle of Falstaff beer. The bartender said he took the cap off the bottle and when he took the cap off it was a live bottle of beer, made a popping noise, and foamed. Another witness confirmed the fact that the beer had foam on it and was a live bottle of beer. The bartender testified that no one tampered with the bottle during the six hours he was on duty, from 4:00 p. m. to 10:00 p. m. on April 2,1951.

The plaintiff testified that he drank about half a bottle of beer and as he was drinking it he felt a slime go over his throat and he immediately had to vomit. After he had vomited and come back to the table he asked a friend who was sitting with him, who also testified, what was in the bottle, and both he and the friend, and the bartender, and other witnesses, looked at the bottle and saw that it contained a foreign substance which was a substance often referred to as a “rubber prophylactic contraceptive latex.” The plaintiff, another witness, and three doctors, testified that plaintiff became ill and suffered nausea, sustained a fixation neurosis, and had considerable loss in his business as a result of having consumed the bottle of beer with the latex prophylactic in it.

At the conclusion of all the evidence for the plaintiff, the trial court stated, “It is the opinion of the Court that after consideration of the testimony in its most favorable light, that the plaintiff has failed to prove his case in view of the necessary proof to be made by him, as set forth in the case of Williams v. Paducah Coca-Cola Bottling Co., Inc., supra. The Court takes the position that even by considering the plaintiff’s evidence in the most favorable aspect, the plaintiff has failed to prove that there was no reasonable opportunity for tampering with the bottle of beer in question, and where the evidence has disclosed there was reasonable opportunity for tampering, plaintiff has failed to prove that there actually was no tampering or adulteration.” The court entered an order directing the verdict. Plaintiff filed appropriate supplementary motions and the issue before this court is whether the court below properly allowed the motion, as indicated.

The plaintiff’s position is that the testimony introduced in evidence raises a question of fact which should have been submitted to the jury, as to whether or not there had been a reasonable opportunity to tamper with the Falstaff beer in question. In the Williams v. Paducah Coca Cola Company case referred to, the defendant had denied that it had bottled the coca-cola in question, and that in the particular store in consideration in that case, beverages from seven different companies were delivered and placed on the floor in the front of the store, which was accessible to the general public and to all the different competitors of the defendant, and the cooler in which the beverages were cooled was accessible to anyone who desired to raise the lid and reach the container, and customers frequently served themselves out of the cooling case. In the case before us, the evidence showed that the beer was placed in the basement and under the control of Mr. Riedel and his employees; and that the beer had been picked up at the brewery and transported in reasonably secure fashion from the brewery to the warehouse, stored in the warehouse in a manner which would not necessarily indicate an opportunity for tampering, and was delivered to the tavern in such a manner as would not necessarily indicate an opportunity for tampering. In the case of Sullivan v. Coca Cola Bottling Co. of Chicago, Inc., 313 Ill. App. 517, the court found that testimony that plaintiff purchased the coca-cola from a pharmacist, who opened the bottle and poured the contents in a glass in his presence, and that the plaintiff became ill and nauseated, would present a question of fact for the jury. Similarly, in Duval v. Coca-Cola Bottling Co., 329 Ill. App. 290, and in Patargias v. Coca-Cola Bottling Co. of Chicago, 332 Ill. App. 117, the circumstance that the evidence shows that the bottle was sealed and capped was given consideration by the court in determining that the testimony was sufficient to justify allowing a jury to pass upon the questions of fact.

When the product of the manufacturer involves a sealed or capped bottle of the type under consideration before us, and particularly, where the evidence shows circumstances inconsistent with tampering, such as the foaming of the beer upon the bottle being opened, the direction of a verdict on the ground that there was a possibility of tampering through some activity which would not normally or reasonably be anticipated or probable on the basis of the evidence presented, is not justified. It would raise an unreasonable and impossible standard of proof which would require that a claimant who seeks to recover as against a manufacturer must trace the particular bottled and sealed item, minute by minute, from the time of its delivery by the manufacturer until actual consumption by the consumer, before a plaintiff would have the right to a jury determination of whether or not there had been tampering or possible tampering, as a question of fact. Under the facts and circumstances in the case we believe that the trial court erred in allowing the motion for a directed verdict.

The judgment of the circuit court of St. Clair county will, therefore, be reversed and this cause will be remanded to such court for a new trial.

Reversed and remanded.

Scheineman, P. J. and Bardens, J., concur.