author: MR. JUSTICE SEIDENFELD

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Dallas Erb and John Weiss, Defendants-Appellants.
    Gen. No. 69-201.
    Second District.
    August 18, 1970.

      Allan A. Ackerman and Thomas P. Durkin, of Chicago, for appellants.

      William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Malcolm F. Smith, Assistant State’s Attorney, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Dallas Erb and John Weiss were convicted by a jury of the offense of possession of a narcotic drug, marijuana. (Ill Rev Stats 1967, c 38, § 22-3.) Each appeals from the judgment of conviction and the sentence imposed. Defendant Erb was sentenced to a term of two years probation, the first fifteen days to be served in the county jail; defendant Weiss was sentenced to three years probation, the first ninety days to be served in the county jail.

Both defendants urge that their arrests were unlawful and that the court erred in refusing to exclude evidence thereby seized. In addition, both defendants claim prejudicial trial errors, and defendant Erb claims that she was not proven guilty beyond a reasonable doubt.

The occurrence testimony presented by the State consisted of the testimony of Deputies Neuman and Ory: At about 3:00 a. m. on October 8th, 1968, they were on routine patrol when they observed a car parked on a bridge in the east bound lane of Roosevelt Road. There appeared to be no lights showing on the car. As they approached, they observed two persons alight from the vehicle, and stand to its right talking to persons in the car. They pulled their squad car behind the parked vehicle and approached. Deputy Ory, upon asking for the driver’s identification, said that he smelled what he thought to be the odor of marijuana emitting from the car. He said he noted the same odor from the two persons in the car and later from the two who were standing at the side. He placed the driver and the other occupant of the car under arrest and searched them. A pistol was discovered on the passenger, and he was subdued after a short scuffle.

Deputy Neuman, meanwhile had been watching the two persons outside the car, later identified as the defendants. The defendants were observed getting out of the car and standing on the grassy shoulder of the road.

Deputy Ory testified that after he had placed the occupants of the parked vehicle in the squad car, he motioned defendant Weiss to come over and asked him to empty his pockets. After Weiss had finished, Deputy Ory placed his hand in Weiss’s jacket pocket and found a packet which appeared to him to contain a compressed form of marijuana. He then placed Weiss in the squad car.

Deputy Neuman testified that he then told Ory that he had seen Miss Erb appear to throw something to the ground some eight to ten minutes earlier. Ory testified that up to that time he did not intend to arrest Miss Erb, but when Neuman told him that he saw her throw something into the weeds, he placed her under arrest, before finding the packet in the weeds. Ory went to the designated spot and found the packet which was later identified as containing marijuana. He testified that the packet was not weather-beaten or dirty.

Defendant Erb testified that she did not see anyone pick a packet from the ground and that she saw the packet, which Ory alleged he found, for the first time at the trial. She testified that she did not throw any obj ect from her purse at any time.

Defendant Weiss denied that he had a packet of marijuana in his jacket. He testified that he saw an object in Ory’s hand at the scene but had not seen it before and that he saw the packet for the first time at the trial.

Upon a later search of Miss Erb’s purse at the police station, a corncob pipe and cigarette papers were found, which were introduced into evidence. A search of the glove compartment of the parked vehicle made after all four had been placed under arrest and put in the squad cars, revealed evidence of particles of marijuana, later collected at the police station by vacuum.

A motion to suppress evidence was filed prior to trial and was denied after a hearing in which Deputies Ory and Neuman testified for the State. Defendants argue that the motion to suppress should have been allowed on the theory that there was no probable cause to arrest either defendant, and that the alleged evidence against them was the product of an unlawful arrest.

We do not agree. Defendants seek to separate themselves from the occupants of the vehicle on the theory that they were merely standing outside and “doing nothing” prior to the arrest and search. Defendant Weiss suggests that the sole reason for his arrest and subsequent search was, as Deputy Ory testified, the alleged fact that the odor of both smoked and unsmoked marijuana was present in the car which Weiss and Erb had exited some minutes before. Defendant Erb argues that she was placed under arrest at a time when she was doing nothing at all and at a time before the alleged finding of the packet in the weeds.

The defendants argue that their mere presence in or at the car containing other passengers, which car and/or its other passengers gave evidence that a crime had been committed, did not give the deputies probable cause to make a valid warrantless search of their persons, and the defendants rely on United States v. DiRe, 332 US 581, 92 L Ed 210, 68 S Ct 222 (1948), and The People v. Bowen, 29 Ill2d 349,194 NE2d 316 (1963) as support for their contention. In DiRe, a warrantless search of DiRe, one of the passengers, was made solely on the statement of another passenger. The passenger was in possession of some counterfeit gas ration cards which he said he had received from still another passenger. (Not DiRe) The subsequent search of DiRe was properly held to be without probable cause. In Bowen, the police, acting on information that a woman was carrying a gun on the street concealed in a newspaper, secured a surrender. They then searched her husband, the defendant, who was standing nearby, for weapons and found nothing. A more thorough search of the defendant was later made and heroin was found on his person. The court held that the later search was not incidental to the original arrest of defendant’s wife and that there was no probable cause that defendant was guilty of a crime prior to the search. Both cases are distinguishable on their facts from the one before us.

The entire circumstances confronting the officers must be viewed to determine whether they had reasonable cause to arrest the defendants. The arrest and subsequent search proceeded directly out of an investigation pursuant to apparent violations of traffic laws prohibiting stopping or parking on a public highway or bridge (Ill Rev Stats 1967, c 95%, §§ 185, 187) and operating a motor vehicle on a public highway without proper lights (Ill Rev Stats 1967, c 95%, § 200). Testimony of the “odor of marijuana emitting from the vehicle and from all of the persons,” justified the further belief that more than a traffic violation was involved. Where the smell of contraband is established to the satisfaction of the court, it is a sufficient basis under proper circumstances for officers to believe that a crime is being committed in their presence. See United States v. King, 305 F Supp 630, 633 (1969) and cases therein cited; People v. Jackson, 241 Cal App2d 189, 50 Cal Rptr 437, 438 (1966); and People v. Christensen, 2 Cal App3d 546, 83 Cal Rptr 17, 19 (1969).

Defendants argue that “smell has been held insufficient as the basis of an arrest,” citing Johnson v. United States, 333 US 10, 92 L Ed 436, 68 S Ct 367 (1948), and Chapman v. United States, 365 US 610, 5 L Ed2d 828, 81 S Ct 776 (1961). In Johnson, narcotics officers entered a hotel room upon invitation after smelling burning opium. A warrantless search which uncovered opium was held to be without probable cause (the court indicating, however, that the smell would have been sufficient cause for a magistrate to issue a search warrant). In Chapman, entry into private premises, based upon federal agents smelling a strong odor of mash, was held an insufficient ground for an entry without a search warrant. However, the opinions in both cases are premised upon the conclusion that there were no exceptional circumstances, such as threat of destruction or removal of evidence or danger of flight, requiring an immediate search of private premises.

The courts, moreover, have long distinguished between an automobile and a home or office in terms of circumstances justifying a warrantless search. See Chambers v. Maroney, 399 US 42, 26 L Ed2d 419, 426, 90 S Ct 1975, 1979 (1970), holding that “automobiles and other conveyances may be searched without a warrant in circumstances which would not justify the search without a warrant of a house or an office, provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize.” Here, the mobility of the car, the fact that the occupants have been alerted, and the danger that evidence may never be found again if a warrant must be obtained, support the reasonableness of the search of the car after the apparent traffic violation and the detection of the odor of marijuana.

Other cases cited by the defendants as support for their assertion that herein the warrantless searches were invalid and illegal, such as Beck v. Ohio, 379 US 89, 13 L Ed2d 142, 85 S Ct 223 (1964), and United States v. Henry, 259 F2d 725 (1958), are similarly distinguishable on the basis that in those cases, there was no basis for the initial arrest of the defendants and, therefore, the subsequent search and findings of evidence were unlawful.

It was reasonable for Deputy Ory to arrest and search the occupants of the car, and it was reasonable for Deputy Neuman to meanwhile keep defendants, Erb and Weiss, under observation, as persons who had alighted from the car just previously and remained in the vicinity of it. While it is true that the finding of a weapon on the person of one of the other passengers justified a pat-down search of Weiss, Officer Ory was not confined herein to such a limited search because the smell of marijuana that he observed to emanate from the car and Weiss’s person afforded him sufficient probable cause to believe a crime had just been or was being committed. The officers were not obliged to assume that Weiss had emptied everything from his pockets and were reasonably justified in making the further search. Officer Neuman’s report to Ory as to defendant Erb’s suspicious movements and the finding of the packet near her, gave probable cause for her detention and search.

Miss Erb places considerable emphasis on a contention that she was not arrested until after the search of her purse at the police station. We do not deem this material even if it were justified by the facts. Since the police had probable cause in our opinion to detain her and undertake a search at the arrest site and later of her purse at the station (see 19 ALB3d 727, at 739-741), the probable cause to arrest Existed at the scene, and the arrest may be considered to have been made at that time even though formal charges may not have been brought until later. See Sibron v. New York, 392 US 40, 77, 20 L Ed2d 917, 88 S Ct 1889 (1968).

The further argument of defendant Erb that she was not proven guilty beyond a reasonable doubt, rests principally upon a claimed vagueness and inconsistency in the testimony of Deputy Neuman.

Neuman’s testimony at the trial on direct examination was,

“A. As I was watching them, I saw an object being thrown approximately three to four feet away from Mrs. Erb — Miss Erb.
“Q. Do you know who threw that object, Deputy? “A. I believe it was Miss Erb.
“Q. What did you notice, if anything, about this object? Were you able to detect its color at all?
“A. It was within the scope of the headlights and it seemed like it was a silvery-type object. It had a flash to it.
“Q. Where did Miss Erb throw this silvery object?
“A. Further towards the ditch.”

and in further cross examination, defense counsel sought to impeach the witness with his testimony at the pretrial motion to suppress:

“Q. Do you recall this series of questions being asked and your answers, page 97, page 99:
“ ‘Q. And this packet of tinfoil that was thrown on the ground by Miss Erb did you see her do that?
“ ‘A. I saw it drop there, sir.’
“Page 99:
“ ‘Q. Officer Neuman, you said you saw Miss Erb throw something, is that right?
“ ‘A. No, sir. I saw this object drop.’
“Q. Do you recall that?
“A. No, sir, I don’t.
“Q. Does this refresh your recollection as to what really happened ?
“A. I can’t recall. It has been so long.”

On re-direct examination the witness testified,

“Q. Deputy Neuman, exactly what did you see Miss Erb do in relation to her purse and the silver obj ect that you saw ?
“A. She had her purse in her hand and I couldn’t tell you which hand, and this silver object being thrown. It was—
“Q. When you say ‘thrown,’ how .do you mean thrown?
“A. It was in the air underhanded.
“Q. Now, you say it went four to four and a half feet?
“A. Yes, sir.
“Q. Did you see the approximate location, Deputy, where it landed ?
“A. Yes, sir. I told Dry, Deputy Ory where it was at.”

In People v. Archie, 105 Ill App2d 211, 214, 245 NE2d 59 (1969), upon which defendant Erb relies, the court noted “there is no testimony indicating that anyone saw the defendant make a motion which would indicate that he was throwing something to the floor or discarding some item.” The record simply indicated that the defendant took his hand out of his pocket and placed it along his leg, and that it was not known whether this was the right or left hand. No one testified to seeing anything in his hand or anything drop through the air (as is the case with defendant Erb). The discovery of a marijuana cigarette near the defendant on his left side was held not to establish possession of narcotics.

However, in Archie, the court distinguished The People v. Richardson, 21 Ill2d 435, 437, 172 NE2d 801 (1961), which bears more of a similarity to the circumstances present here. In Richardson, the conviction for the possession of narcotics was affirmed on circumstantial evidence that the defendant was seen to “make a motion which suggested to him (the officer) that defendant was throwing something to the ground,” and the narcotics were found only a few feet from where Richardson was standing.

The People v. Jackson, 23 Ill2d 360, 178 NE2d 360 (1961), also cited by the defendant Erb, is authority for the proposition that mere suspicious behavior in the vicinity of narcotics is not proof of possession. There, the presence of the narcotics in a common stairwell which was also available to other tenants, as to whom no investigation was made, was insufficient to prove possession although the defendant acted suspiciously in locking herself in the bathroom when the officers appeared.

Here, an officer testified to the smell of marijuana on all the persons, including defendant Erb; she was observed making a motion which suggested to the officer that she was throwing something to the ground, and the marijuana was found in her immediate vicinity at the particular place where the officer indicated it would be found. The finding of the pipe, and cigarette papers commonly used to roll marijuana cigarettes in this defendant’s purse was an additional circumstance supporting the jury’s determination that her denial was not credible.

Miss Erb argues that the testimony of officer Neuman was unconvincing and could not be reconciled within the rule of The People v. Nelson, 18 Ill2d 298, 164 NE2d 21 (1960). We do not find that, on the whole record, Neuman’s testimony is necessarily inconsistent. The jury was justified in believing that the officer saw a motion on Miss Erb’s part which drew his attention to her in time to see a flying object, and they were entitled to disbelieve the testimony of defendant that she had never seen the object until the trial. We cannot substitute' our judgment under these facts for the jury’s findings. See The People v. Nicholls, 42 Ill2d 91, 95, 245 NE2d 771 (1969); The People v. Richardson, supra, at page 438. We conclude that Miss Erb was found guilty beyond a reasonable doubt.

Defendants next argue that certain cross-examination of the defendant Weiss, which elicited testimony regarding an unchaperoned automobile trip to California made by the defendants, was grossly prejudicial and prevented a fair trial. The questioning concerned defendant Weiss’s friendship with one Mr. Mud. Defendants testified that Mud had dropped off the defendant, and Whitcomb and Rudder (the two found in the car at the bridge), at the home of Miss Erb’s parents. This home was located some 150 feet away from where the car was found parked on the bridge. It was defendants’ testimony that Whitcomb and Rudder drove away together and that the defendants did not approach the stopped vehicle until after the squad car had passed them on the road, which was in contradiction to the officers’ testimony that the defendants alighted from the parked car at the bridge.

The State’s theory is that it was necessary to reduce the credibility of Mud, if he were to be called as a witness after defendant Weiss had testified, by showing the extent of his friendship with Weiss. Defense counsel objected to questions relating to a vacation trip Weiss had taken with Mud. The court stated in chambers that he was permitting the questioning to the extent it tended to show the friendship between Weiss and Mud. The witness then related in the presence of the jury a 2-3 day trip to California and a stay there with Weiss’s aunt. Weiss was then asked who was with him on the trip and answered without objection, “Dallas Erb.”

This question went beyond the purpose for which the particular cross-examination was being permitted and should not have been asked. However, defendant did not object nor request a jury instruction or make a motion for a mistrial. Ordinarily one who fails to object to the admission of evidence waives his right to complain of its admissibility. The People v. Williams, 28 Ill 2d 114, 116, 190 NE2d 809 (1963); The People v. Mc-Crimmon, 37 Ill2d 40, 47, 224 NE2d 822 (1967). However, plain errors or defects affecting substantial rights may be noticed although not brought to the attention of the trial court. (Ill Rev Stats 1967, c 110A, Supreme Court Rule 615.)

The testimony that the defendants drove together to California is not evidence of an illicit relationship such as we held to be so prejuducial as to constitute reversible error in People v. Smith, 74 Ill App2d 458, 221 NE2d 68 (1966). The admission of the testimony referred to is not an error which affects substantial rights of the defendant and is not ground for reversal.

The judgments of the trial court are, therefore, affirmed.

Affirmed.

DAVIS, P. J. and ABRAHAMSON, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE LEIGHTON

license: Public Domain

text:
    Stanley Werdell, Plaintiff-Appellee, v. Stanley Turzynski, Defendant-Appellant.
    Gen. No. 53,424.
    First District, Second Division.
    August 18, 1970.

      Stanley Turzynski, pro se, of Chicago, appellant.
    Tuohy and Martin, of Chicago, for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

This appeal arises from a bitter dispute between the plaintiff, a lawyer, and the defendant, a former client, concerning fees. The cause was heard by a jury that returned a verdict for the plaintiff. After overruling a posttrial motion, the trial court entered judgment on the verdict.

In urging us to reverse, defendant contends that (1), he was not given an opportunity to present his meritorious defense; (2), evidence, misleading to the jury and prejudicial to him, was erroneously admitted; (3), plaintiff’s conduct at the trial and that of his counsel while arguing to the jury, were prejudicial, misled the jury and prevented a fair and impartial verdict; (4), the trial judge gave the jury two erroneous instructions; and (5), the verdict of the jury was against the law and the evidence. The facts are before us in a voluminous record.

On May 4, 1961 the defendant, Doctor Stanley Turzynski, agreed to buy from a Doctor Samuel A. Libert his medical practice, a medical center and real estate at 6165 and 6169 Archer Avenue in the City of Chicago. A consideration for the sale was a restrictive covenant, without time limitation, that prohibited Doctor Libert from engaging in the practice of medicine, directly or indirectly, within a radius of 15 miles of the medical center he sold. In April 1963, Doctor Libert announced his return to medical and surgical practice in the same block on which the medical center was situated. Doctor Turzynski filed suit to restrain breach of the covenant. Doctor Libert’s defense was that on December 1, 1961, the restrictive covenant was canceled by a document which amended the 1961 sales agreement. Doctor Turzynski countered this defense with the claim that the document was obtained by fraud. The cause was referred to a Master who conducted hearings and filed his report.

Plaintiff, Mr. Stanley Werdell, has been a lawyer since 1930. His practice is restricted to chancery, probate and appeals. Ninety-five percent of his cases are referred to him by other members of the bar. On April 17, 1965, on the advice of his lawyer, Doctor Turzynski consulted Mr. Werdell. On April 21, 1965 Doctor Turzynski signed a written agreement to employ Mr. Werdell “as my attorney to prosecute or settle the . . . case: Stanley Turzynski v. Samuel A. Libert, . . . .” According to the document he and Mr. Werdell signed, Doctor Turzynski agreed to pay as a retainer $1500 within five days, an additional $1500 on or before June 9, 1965; “and the following additional amount: (a) the sum of $35 per hour for whatever time he devotes to the above matter. . . .” By the terms of the retainer agreement, Doctor Turzynski consented to pay all court costs, court reporter charges, master’s fees, documentary fees and title charges. If there was an appeal, the parties were to enter into a new agreement. The last paragraph provided “[i]t is further understood that the $3,000 above mentioned shall be applied to the amount of time that the said attorney shall devote to this cause.”

April 26, 1967 Mr. Werdell filed the suit involved in this appeal. To the complaint, as exhibits, were attached the retainer agreement of April 21, 1965 and a statement to Doctor Turzynski, which acknowledged receipts totaling $6,248 and showed 361 hours and 5 minutes of work devoted by Mr. Werdell to Turzynski v. Libert, at $35 per hour, making the sum of $12,635 for attorney fees. The statement showed disbursements of $48 for costs and $6,200 received and applied to fees. The statement claimed there was due a balance of $6,435. A judgment in this amount was prayed.

Doctor Turzynski appeared by counsel, asked for a jury trial and pleaded to the complaint with a “Separate Affirmative Answer” containing eight paragraphs. In these, Doctor Turzynski alleged he retained Mr. Werdell as his attorney on April 21,1965 “to represent him in the preparation and presentation of Objections to the Master’s Report in the case of Turzynski v. Libert, Case No. 63 S 8949, and for no other purpose; . . . [and that] Stanley Werdell orally represented to Stanley Turzynski that the estimated number of hours for this task would not exceed 60.” One paragraph of the “affirmative answer” alleged that because Mr. Werdell failed to perform his duties, he was discharged by Doctor Turzynski “for good cause ... on December 14, 1966.” The remainder of the “affirmative answer” contended that as a matter of law, an attorney who is discharged for good cause cannot enforce a written contract for fees “but may maintain such an action only on Quantum Meruit (sic), if at all, and further that the amounts charged by Stanley Werdell are not fair and reasonable and that the total number of hours claimed are unnecessary and not reasonable or justified.” Defendant alleged that the sum he paid Mr. Werdell was $6,700; that he was not indebted to the plaintiff in the amount claimed. On the contrary, it was alleged, Mr. Werdell owed Doctor Turzynski a refund in at least the amount of $2,000.

Doctor Turzynski filed a countercomplaint against Mr. Werdell. In it he alleged that from April 21, 1965 to December 14, 1966 he paid Mr. Werdell $6,700 for legal services; that Mr. Werdell had the duty to represent him “with all due and reasonable care and diligence such as is required of an attorney . . .”; that notwithstanding this duty, Mr. Werdell “negligently pursued his client’s cause and, in particular, negligently prepared the plaintiff’s Objections to the Master’s Report, . . . .” Ten subparagraphs alleged the manner by which, according to Doctor Turzynski, Mr. Werdell failed or willfully and negligently did acts which were either opposed by Doctor Turzynski or which were to his detriment in Turzynski v. Libert. The countercomplaint then alleged, in three consecutive paragraphs, that on and after December 19, 1966,. Mr. Werdell, “willfully and negligently and unethically . . .” injured the cause of his former client, Doctor Turzynski. The concluding paragraphs of the countercomplaint prayed for damages in the sum of $750,000.

In a trial that lasted from May 31 to June 7, 1968, Doctor Turzynski was called and examined as an adverse witness. He was aked whether when he signed the retainer agreement it contained the last paragraph that provided for application of the $3,000 retainer to the amount of time Mr. Werdell devoted to the case. Doctor Turzynski said, “No, was not (sic).” He then added, “he introduced himself as a very qualified lawyer and as a very honest lawyer. I didn’t know that I have to deal with a dishonest, corrupt man, and let’s state this corrupt and dishonest. I am able to prove this (sic).” Thereafter, over defendant’s objections, interspersed in other testimony, plaintiff called five character witnesses: a magistrate, an associate judge, a circuit court judge, a justice of the Appellate Court of Illinois and a justice of the Illinois Supreme Court. The lawyer who referred Doctor Turzynski to Mr. Werdell appeared as plaintiff’s occurrence and character witness. Then Mr. 'Werdell testified to the circumstances under which he was retained by Doctor Turzynski, the way he kept a record of the time he worked on Turzynski v. Libert and the way he discharged his professional responsibility to his client. Mr. Werdell’s secretary testified to the way she recorded the time spent by Mr. Werdell in Doctor Turzynski’s case, and the way she prepared and mailed letters which Mr. Werdell testified were sent to the client. These letters, and other exhibits totaling twenty-four in number, were admitted as plaintiff’s evidence. Doctor Turzynski then testified as the only witness for the defense. He described how Mr. Werdell told him the preparation of the objections to the Master’s report would not take much time and that the unused portion of the $3,000 retainer would be returned. Doctor Turzynski was shown the retainer agreement and he told the jury his understanding of its terms. He described his experiences with Mr. Werdell and their disagreements concerning the case.

When he was cross-examined, defendant was asked if he was the same Stanley Turzynski who on July 31, 1967 was found guilty of the offense of filing a false and fraudulent income tax return in violation of Section 7201, Title 26, United States Code. After objection to these questions were overruled, Doctor Turzynski admitted he was the defendant named. A certified copy of the record was admitted in evidence. At the conclusion of Doctor Turzynski’s testimony, the cause was argued and the jury instructed. After deliberation, the jury returned a verdict against Doctor Turzynski in the sum of $5,935. He appeals.

In this court Doctor Turzynski now represents himself because the lawyers who docketed his appeal, with our leave, have withdrawn from his case. He filed Excerpts of Record and a Brief and Argument for Defendant-Appellant. On a motion made by lawyers for the plaintiff, Mr. Werdell, we struck the Excerpts and Brief because as to form they violated our rules; and as to substance the Brief contained scurrilous attacks on the integrity of the opposing party, the lawyers connected with the case and witnesses who appeared for the plaintiff. Biggs v. Cummins, 16 Ill2d 424, 158 NE2d 58; Skolnick v. Nudelman, 95 Ill App2d 293, 237 NE2d 804. Doctor Turzynski has filed another set of Excerpts and Brief which corrects, in part, some of the faults that led us to sustain plaintiff’s motion to strike.

Doctor Turzynski’s first contention is that he was not given an opportunity to present to the jury what he claims was a meritorious defense. However, we are not told how or in what manner he was denied this opportunity. Other than in the statement of the issues presented for review, there is no reference to this contention in Doctor Turzynski’s Brief. Thus, the issue is not argued. An issue raised in a brief but not argued is waived. Supreme Court Rule 341 (e) (7), Ill Rev Stats 1967, c 110A, § 341 (e) (7); Rudolph v. Gersten, 100 Ill App2d 253, 241 NE2d 600; Soter v. Christoforacos, 53 Ill App2d 133, 202 NE2d 846; Louis v. Checker Taxi Co., 318 Ill App 71, 47 NE2d 351.

Doctor Turzynski’s second contention is that evidence, misleading to the jury and prejudicial to him, was erroneously admitted. In support of this contention, Doctor Turzynski argues that the sworn complaint was given the jury to read during their deliberation. Although Supreme Court Rule 341 (e) (7) requires that contentions on appeal shall contain references to the record page, we are not told where the record shows that the jury was given the complaint to read. Burdened as we are by this failure, we have, nonetheless, scoured this 1176 page record, but fail to find that the incident about which complaint is made occurred.

To the contrary, the record discloses that when the cause was argued to the jury, Doctor Turzynski’s lawyer told it that during deliberations it would have “a copy of all the pleadings that were filed in this lawsuit.” Mr. Werdell’s lawyer objected, saying that when it deliberated, the jury was not going to have copies of all the pleadings. He asked the trial judge to inform the jury accordingly. The trial judge then told the jury, “The only thing you will take with you in the jury room will be the instructions and the exhibits.” It is clear, therefore, that the record refutes Doctor Turzynski’s argument on this point.

Doctor Turzynski’s next argument concerning admission of evidence is that plaintiff’s exhibits 3 to 7 were erroneously admitted. These exhibits were copies of five letters, dated between March 25 and November 8, 1966 which plaintiff claims were mailed to Doctor Turzynski. Mrs. Loretta Branda, Mr. Werdell’s secretary, testified that she typed the original of these letters, addressed them, put on their envelopes the necessary postage and mailed them to Doctor Turzynski. The exhibits were copies she placed in the file. She said that the originals were never returned to Mr. Werdell’s office. Prior to trial, and pursuant to rules, plaintiff asked defendant to admit that letters described in the request were mailed to him and received. Doctor Turzynski denied receiving those letters. Plaintiff testified that after these letters were mailed to Doctor Turzynski, he responded by paying fees requested by the letters.

A properly stamped letter, correctly addressed, and deposited in the mail, is presumed to have been received by the addressee in due course of transmission. Keogh v. Peck, 316 Ill 318, 147 NE 266; Ladd v. Cochran & McCluer Co., 274 Ill App 427. If the addressee denies receipt of the letter, the presumption is rebutted and receipt becomes a question to be resolved by the trier of the fact. Winkfield v. American Continental Ins. Co., 110 Ill App2d 156, 249 NE2d 174. Plaintiff’s evidence raised the presumption. Doctor Turzynski’s denials made receipt of the letters a question of fact which the jury resolved. There was no error in the court’s rulings admitting the letters in evidence. Admission of them was necessary to enable the jury to decide the questions presented by the parties.

In addition to the letters, the trial court admitted plaintiff’s exhibits 15 to 23. These were abstracts of the pleadings and interrogatories, copies of time sheets kept by the plaintiff, index of abstract prepared by plaintiff and other work products in Turzynski v. Libert. Doctor Turzynski argues that these exhibits were self-serving declarations by Mr. Werdell; and that it was prejudicial error for the trial judge to have allowed him to give the jury lengthy and repeated descriptions of their content.

A self-serving declaration is a statement, oral or written, or an equivalent act, by or on behalf of a party which if admitted would constitute evidence in his favor. Lord v. Reed, 254 Ill 350, 98 NE 553. The exhibits about which complaint is made were prepared by Mr. Werdell contemporaneous with his claimed discharge of professional responsibilities to Doctor Turzynski. They were not offered to prove the truth of statements they contained. These exhibits were a part of the res gestae. “To be a part of the res gestae, a declaration, whether verbal or written, must affect the act which is the subject of inquiry and explain, illustrate, qualify, limit or characterize it, and must not be narrative of a past transaction.” Cooke Co. v. Miller Brewing Co., 316 Ill 46, 51, 146 NE 459. The nine exhibits were documents plaintiff offered to prove that he did the work he alleged in his suit. Mr. Werdell was allowed to explain their content so that the jury could have an intelligent understanding of them. Therefore, we conclude that no prejudicial error was committed by admission in evidence of plaintiff’s exhibits 15 to 23.

Doctor Turzynski argues that the trial judge committed prejudicial error in allowing Mr. Werdell to call five members of the judiciary as character witnesses. The gist of the argument is that in a civil case character is an irrelevancy.

In a civil case the reputation or character of a party is not an issue. McBean v. Fox, et al., 1 Ill App 177; Holtzman v. Hoy, 118 Ill 534, 8 NE 832; Ellwood v. Walter, 103 Ill App 219. However, evidence of good character can be admissible in a civil suit when the reputation of a party is attacked by general evidence of bad character. Golden v. Gartleman, 159 Ill App 338; compare Weeks v. Jones, 200 Ill App 215. Where, for example, in a suit on a life insurance policy, a defense is interposed that in his application the insured made knowingly false statements with intent to defraud the insurer, evidence that the insured had a good reputation for truth and veracity became admissible. Woodruff v. Mutual Life Ins. Co. of N. Y., 229 Ill App 213. It is a rule of fundamental fairness that evidence otherwise irrelevant or incompetent, if offered by one party in the first instance, may become relevant in rebuttal or to explain evidence offered or injected into the record by the adversary. Beckner v. Barrett, Tex Civ App 1935, 81 SW2d 719. This doctrine has been applied in many situations involving questions of character. See Mutual Life Ins. Co. of New York v. Treadwell, 79 F2d 487 (CCA 5th 1935); Findlay v. Pruitt, 9 Port (Ala) 195 (1839); Goldsmith, Forcheimer & Co. v. Picard, 27 Ala. 142 (1855); Brook v. Morriss, Morriss & Boatwright (Tex Civ App 1948), 212 SW2d 257; Ferguson v. Simmons (Mo), 43 SW2d 875 (1931); Annot, 78 ALR 643.

In this case, Doctor Turzynski was called as an adverse witness under section 60 of the Civil Practice Act, Ill Rev Stats 1967, c 110, § 60. A characteristic of an adverse witness is that his testimony can be rebutted by the party that calls him. Indeed, a party is bound by the testimony of an adverse witness to the extent that it stands uncontradicted. Murphy v. Vodden, 109 Ill App2d 141, 248 NE2d 327; Lukasik v. Hajdas, 104 Ill App2d 1, 244 NE2d 404. When Doctor Turzynski testified, he gave an unresponsive answer to a question and told the jury that Mr. Werdell, was a dishonest and corrupt man. “I am able to prove this,” he said. Later, he said that Mr. Werdell fooled him, that (referring to Mr. Werdell) he did not know he had “to deal with bandits,” “He defrauded me,” “he is a swindler, . . . a thief, ... a crook, corrupt and fraudulent; and I challenge him to come right here to deny this.” Doctor Turzynski added, “I challenge him, so the jury can see if I am telling the truth or I lie before the jury.” Under these circumstances, the trial judge properly allowed plaintiff to rebut defendant’s testimony that attacked plaintiff’s character.

Doctor Turzynski’s third contention is that plaintiff’s conduct at the trial and that of his counsel while arguing to the jury were prejudicial, misled the jury and prevented a fair and impartial verdict. As to the plaintiff himself, Doctor Turzynski does not say what he did that misled the jury. As to plaintiff’s counsel, we have read his arguments to the jury. We find that the statements made in summation were proper comments on the evidence. The purpose of closing argument to a jury is to draw together all of the facts and present the theories of the litigants so that the jury may make a proper decision. Burgh v. Crane Const. Co., Inc., 102 Ill App2d 188, 243 NE2d 590. While it is true that counsel should avoid improper comment, they are permitted sufficient leeway within the evidence so as to properly present the litigation theory of the client. Hopwood v. Thomas Hoist Co., 71 Ill App2d 434, 219 NE2d 76. Our reading of the record discloses tempered presentations by both lawyers. The arguments were within the bounds of propriety; and when objections were made, they were the subject of correct rulings by the trial judge. We find no merit in the contention that the conduct of plaintiff or that of his counsel misled the jury and prevented a fair and impartial verdict.

Doctor Turzynski’s fourth contention is that the trial judge gave the jury two erroneous instructions. One, it is claimed, told the jury that Doctor Turzynski agreed to pay the plaintiff $12,635 for legal services. When he attempted to develop this argument, Doctor Turzynski discovered that the record on appeal did not contain this instruction. On June 25, 1969 he filed an affidavit stating that on June 7, 1968 the trial court gave the written instruction he describes. We have examined the record and we find that this did not occur.

The other criticized instruction is Illinois Pattern Jury Instructions, Civil, IPI 3.02. It told the jury that:

The credibility of a witness may be attacked by introducing evidence that he has been convicted of a crime. Evidence of this kind may be considered by you in connection with all the other facts and cirucmstances in evidence in deciding the weight to be given to the testimony of that witness.

The basis for this instruction was proof by plaintiff, over defendant’s objections, that in July 1967 Doctor Turzynski was found guilty of filing false and fraudulent income tax returns, a felony, in violation of federal laws. Doctor Turzynski argues that the trial judge committed reversible error in admitting the evidence of conviction and in giving the jury IPI 3.02. The core of this argument is that only conviction for an infamous crime can be shown to affect the credibility of a witness. A long line of cases, beginning with Lamkin v. Burnett, 7 Ill App 143 and ending with People v. Kirkpatrick, 413 Ill 595, 110 NE2d 519, is cited to buttress this argument. In addition, our attention is called to the list of infamous crimes defined in Ill Rev Stats 1967, c 38, § 124-1 which, defendant points out, does not include conviction for filing false and fraudulent income tax returns under federal law.

As an analogy, we observe that determination of what constitutes an infamous crime, insofar as it effects a vacancy in office, is not an exclusive legislative function, but is subject to judicial decision in the light of the common law as it existed when the constitution was adopted in 1870. People ex rel. Keenan v. Mc-Guane, 13 Ill2d 520, 150 NE2d 168; People ex rel. Symonds v. Gualano, 97 Ill App2d 248, 240 NE2d 467. The better opinion is that the nature of the crime, not the punishment, determines whether it is infamous. An infamous crime is an offense implying such a dereliction of morals that it shows a total disregard of the obligation of an oath. People v. Parr, 42 Hun (NY) 313, 316-17 (1886). Commission of an infamous crime is inconsistent with the principles of honesty and decency. People ex rel. Ward v. Tomek, 54 Ill App2d 197, 203 NE2d 744.

One of the crimes which was infamous at common law (because its commission displayed dereliction of morals, inconsistency with principles of honesty and decency) was perjury. Indeed, the origin of infamous crimes as a concept of the common law was perjury, one of the crimen falsi. Perkins, Criminal Law 15 (1957); Commonwealth v. Jones, Appellant, 334 Pa 321, 323, 5 A2d 804 (1939). Perjury is an offense which may be committed in making out a false income tax return. Levin v. United States, 5 F2d 598 (CCA 9th 1925), cert den 269 US 562, 46 S Ct 21, 70 L Ed 412. Thus, the crime of filing false and fraudulent income tax returns has as its essence, the elements of a crime that was infamous at common law.

Under our statutes, Ill Rev Stats 1967, c 38, §§ 124-1, 124-2, perjury is an infamous crime. It has been held that the crime of filing false and fraudulent federal income tax returns is infamous under the laws of this state. People ex rel. Keenan v. McGuane, supra. We are compelled by logic to conclude that for the purpose of affecting the credibility of a witness, conviction of the crime of filing false and fraudulent income tax returns is also infamous. Therefore, the trial judge ruled correctly when he admitted evidence of defendant’s conviction.

Doctor Turzynski’s fifth but most vigorously argued contention is that the verdict of the jury was contrary to the law and the evidence. Doctor Turzynski argues that when, in a lawyer’s suit for fees, a client attacks the employment contract as unconscionable, the lawyer must prove the allegations of his complaint and disprove the client’s charge. Further, Doctor Turzynski argues, when a client attacks as unconscionable a contract with his attorney, whether it be for excessiveness of attorney’s fees or for any other unfairness, the client is not required to establish fraud or imposition because the burden of proof is on the attorney to prove his complaint and disprove the client’s accusations. Upon the attorney’s failure to make such proof, equity treats the case as one of constructive fraud.

It is not to be doubted that this was our dicta in Ross v. Wells, 6 Ill App2d 304, 308, 127 NE2d 519, the case cited in support of these arguments. However, there is one thing wrong. These arguments do not apply to this case. Neither in his first answer filed by one lawyer nor in the second amended one filed by a different set of lawyers, did Doctor Turzynski allege that the retainer contract of April 21, 1965 was unconscionable. The “separate affirmative answer” and its eight paragraphs do not allege facts consistent with his present contention. Not even when he testified in his own behalf did Doctor Turzynski claim that the contract between him and Mr. Werdell was unconscionable. Needless to say, Dcotor Turzynski did not present any evidence to support the argument he now makes.

Despite the voluminous record, this was a simple case. Mr. Werdell filed his suit, supported it with copies of documents he said were a retainer agreement and a statement of his services. At trial, he testified and called witnesses in support of his claim that Doctor Turzynski was indebted to him in the sum alleged. Doctor Turzynski,- on the other hand, denied he was indebted to Mr. Werdell. Contrary to Mr. Werdell’s allegations, Doctor Turzynski contended that his relation with Mr. Werdell was for the limited purpose of filing of objections to a Master’s report. In his testimony, Doctor Turzynski described his relation with Mr. Werdell, told the jury how he understood the agreement and described his claim that Mr. Werdell told him the legal services would not cost more than $3,000. In direct contradiction of Mr. Werdell’s claim that he withdrew from the case, Doctor Turzynski testified that he fired him for cause. Thus, the jury had before it Mr. Werdell’s claims controverted by Doctor Turzynski. Because of the liberal rulings made by the able trial judge, questions of fact concerning the relation of the parties were presented to the jury. See Sokol v. Mortimer, 81 Ill App2d 55, 225 NE2d 496; Holley v. Knapp, 45 Ill App 372.

To buttress his contentions about these questions, Doctor Turzynski argues that when a lawyer is discharged by his client without cause, he may rescind the contract of employment and recover on a quantum meruit. If the lawyer is discharged because of corrupt and fraudulent conduct, claims Doctor Turzynski, the lawyer is not entitled to any compensation. The first point in this argument is an incorrect statement of the law; the second point has no application to this case.

It is true that a lawyer who is corrupt and fraudulent in dealing with his client forfeits the right to be compensated. See Harding v. Helmer, 193 Ill 109, 61 NE 838; and compare Wright v. Clark, 212 Ill App 289. The case before us, however, does not allow application to this doctrine. Other than Doctor Turzynski’s own vehement words, there is no evidence in this record to support his claim that Mr. Werdell dealt with him in a corrupt and fraudulent manner.

Vehemence is a poor substitute for credence. No matter how much denunciation is exuded, it will not hide Doctor Turzynski’s failure to convince the jury that what he said was true. The jury, after hearing both sides, returned a verdict consistent with law and the evidence.

Mindful that Doctor Turzynski is before us pro se, we have carefully examined each claim of error he has urged in this appeal. We find no reason to disturb the judgment. It is affirmed.

Judgment affirmed.

BURKE and LYONS, JJ., concur.


author: MR. PRESIDING JUSTICE STAMOS

text:
    James L. Gardner, Plaintiff-Appellant, v. Village of Chicago Ridge, a Municipal Corporation, et al., Defendants-Appellees.
    Gen. No. 53,380.
    First District, Fourth Division.
    August 19, 1970.
    Rehearing denied October 5,1970.

      Reidy, Gross & Dee, and Jurco, Damisch & Sinson, of Chicago (Richard H. Lucy and James R. Mitchell, of counsel), for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Harold W. Huff, of counsel), Crooks & Gilligan, Sullivan & Sullivan, and Dowd, Dowd & Dowd, of Chicago, for appellees.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff sued the Villages of Chicago Ridge and Worth, police officers Richard Demblon and Sgt. Bernard Bartuch of the Village of Worth Police Department, police officers Stanley Wank and Steve Horvath of the Village of Chicago Ridge Police Department and Frank Skubis, Gary LaValley, Richard Souliotis and Larry Posthuma for personal injuries he sustained. The theory of plaintiff’s case is that, under the circumstances shown by the evidence, defendant police officers and villages were negligent in not protecting him from attack by defendants Souliotis and LaValley.

This is the second occasion that this litigation has been before this court for review. The initial appeal was also by plaintiff from an order dismissing the complaint as to the municipalities. As to the duties of the police under the circumstances of this case, we refer to the opinion in 71 Ill App2d 373, 219 NE2d 147, which held that the dismissal was erroneous and remanded the cause. A trial ensued and at the close of plaintiff’s evidence the court directed a verdict in favor of the four police officers and their respective municipalities.

Plaintiff correctly contends that the trial court’s action must be viewed by the standard enunciated in Pedrick v. Peoria & Eastern E. Co., 37 I112d 494, 229 NE2d 504, wherein the court stated at page 510:

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

Generally, the facts, taken in their aspect most favorable to plaintiff, are as follows: Plaintiff was employed as a truck driver. He also held the position of trustee for the Village of Chicago Eidge and was Chairman of the police committee of the Board. On March 8, 1962, he was a chaperone at a teenage dance being held in the Legion Hall in Chicago Eidge, when defendants Eichard Souliotis, Gary LaValley and Frank Skubis entered the premises. They had obviously been drinking and when advised to depart, they treated plaintiff to a torrent of obscenity and profanity. They emerged from the building and continued their abuse and threatened plaintiff that they would return. Plaintiff went to the telephone to call the Chicago Eidge police and just as he completed dialing, he was grabbed by Souliotis who struck plaintiff and told him that if plaintiff summoned the police, these defendants would put him in the hospital. They then entered their car and drove off. Plaintiff immediately telephoned the Chicago Ridge police, advising them of what had occurred and furnished a description of defendants, their vehicle and license number. Defendant police officers Wank and Horvath arrived in response to plaintiff’s phone call. They observed that plaintiff’s shirt was torn and bloodstained. Plaintiff related in detail what had transpired and that plaintiff was warned not to summon the police or he would end up in the hospital.

An hour later officer Horvath returned to the Legion Hall and informed plaintiff that the police were detaining four young men and a car fitting the description furnished by plaintiff, about a half block from the dance hall. Horvath asked plaintiff to walk over to the scene of the arrest to identify them. As plaintiff reached a point where he was about to cross Ridgeland Avenue, he observed Sgt. Bartuch standing next to Souliotis at the right front fender of a police car. Officer Wank was on the shoulder of the road just behind Skubis and La Valley. When the assailants and their companions saw plaintiff coming across the street, they renewed their torrent of profanity and obscenity at the top of their voices and shouted that they were going to get plaintiff for calling the police and again threatened then and there to put him and members of his family in the hospital. At this point plaintiff told officer Horvath, “These are the boys, officer, please take them away.” Plaintiff was now out in the middle of Ridgeland Avenue and the heavy traffic compelled him to continue across to the west side of the road. Horvath then proceeded across and was between plaintiff and Skubis and LaValley.

The verbal abuse and threats to commit immediate harm continued without any effort or act by any of the police officers to subdue or control these defendants, except, to suggest they quiet down.

Sergeant Bartuch was standing next to Souliotis and had his hand on Souliotis’ shoulder, but did nothing to impede or restrain Souliotis from attacking plaintiff.

Souliotis moved a distance of about four or eight feet from Sgt. Bartuch and grabbed plaintiff, picked him up and slammed him upon the trunk of a police car. During this time Souliotis had plaintiff by the throat and shouted incessantly that he was going to keep his promise to kill him. At that instant plaintiff observed officer Demblon pull up in a police car and leap out, run and pull Souliotis from plaintiff and subdue him. As plaintiff was raising himself from the ground where he had fallen from the trunk of the car, plaintiff was grasped by LaValley who screamed in plaintiff’s ear that they had warned plaintiff not to call the police or they would kill him if he did so. Defendant Posthuma because of illness, intoxication or fatigue remained in the back seat of the car. Skubis did not participate in the physical attack upon plaintiff.

Eventually the assailants and their companions were placed under restraint and removed to the Village of Worth police station.

Although the initial call by plaintiff was for assistance from Chicago Ridge police, the Worth police participated at the request of Chicago Ridge police in apprehending the assailants, and this took place in the Village of Worth on Ridgeland Avenue, which is the dividing line between the two villages.

The evidence shows that officer Demblon, one of the Village of Worth policemen, arrived at the scene after the assault or at least just as it commenced and thus could not be charged with any negligence in not stopping or restraining the assailants. The court’s direction of a not guilty verdict in his favor was proper.

Plaintiff was at the scene at the request of the police to see if he could make identifications. This he did immediately upon arrival. Yet the record shows that for at least a five-minute interval Souliotis, LaValley and Skubis were on a heavily traveled thoroughfare, under arrest, and they engaged in shouting and yelling obscenities and profanities at plaintiff and casting aspersions on the morals of his daughter and loudly proclaiming their utter disdain, contempt and repeated threats to inflict physical violence upon plaintiff then and there for his failure to adhere to their prior admonitions and warnings.

Bartuch, of the Village of Worth Police Department, testified that at the time of the attack he was successfully restraining Skubis or LaValley from participating. Plaintiff, however, testified that Bartuch had his hand on Souliotis’ shoulder when Souliotis managed to leave Bartuch’s side and advance on plaintiff and attack him. Horvath and Wank, of the Village of Chicago Ridge Police Department, were standing in the midst of the assailants when the verbal and physical attack upon plaintiff occurred.

We believe that pursuant to Pedrick, supra, the evidence presents a factual question as to whether the defendant police officers, and therefore, their villages, were negligent in failing to take appropriate and sufficient precautions, under the circumstances, to protect plaintiff from being attacked and injured.

Defendant villages contend that the directed verdicts in their favor were proper because: (1) Plaintiff was a trustee of the Village and in that capacity he had a duty to direct and instruct police officers Wank and Horvath in the performance of their police functions and duties and since plaintiff failed to do so, his resulting injuries were the result of his own dereliction of duty; (2) Ill Rev Stats, c 24, § 3-9-4 designates a trustee a conservator of the peace and thus plaintiff had a duty to arrest the assailants and his failure to do so resulted in his being beaten. Neither contention is of any merit. There is no duty imposed upon plaintiff as a trustee to direct and instruct police officers in the performance of their duties, or to make arrests. Plaintiff’s authority under the statute is permissive and does not, with great wisdom we discern, oblige a mayor, alderman and other enumerated officeholders to engage in performing the duties of policemen.

In view of our resolution of this appeal, we are constrained to discuss the propriety of the trial court’s order that limited defendant police officers’ testimony under section 60 of the Civil Practice Act on the basis that it was not binding on the codefendants. This was erroneous. In Edwards v. Martin, 2 Ill App2d 34, 117 NE2d 864, this court responded to a similar contention and at page 39 said:

“A further contention of the defendant is that the testimony of his codefendants, Evans and Reiser, called under section 60 of the Civil Practice Act was not admissible against him.
“The complaint in separate counts charged liability against Evans, Reiser and the defendant. Plaintiffs called Evans and Reiser as witnesses under section 60 of the Civil Practice Act. Without citation of authority in support thereof the contention is made that their testimony could not be considered as against the defendant. The statute under which Evans and Reiser were called provides substantially that any party to a suit may be examined as if under cross-examination at the instance of the adverse party or parties. There is no indication in such provision that the testimony adduced from a party called as a witness thereunder is not admissible against all parties to the suit. So far as the testimony of a party called adversely is concerned, it differs in no respect from any other evidence in the record. It is offered as proof of the facts and circumstances upon which the plaintiff bases his claim to a right to recover. The trial court did not err in holding that the testimony of Evans and Reiser was admissible against the defendant. Illinois Malleable Iron Co. v. Brennan, 174 Ill App 38; Kokan v. Costello, 347 Ill App 41.”

We, therefore, affirm the judgment as to defendant Demblon, but reverse and remand for a new trial as to the other police officers and the Villages of Worth and Chicago Ridge.

Affirmed in part, reversed and remanded in part.

DRUCKER and ENGLISH, JJ., concur.

       Defendants Souliotis, Skubis and Posthuma were dismissed from the instant litigation just prior to trial, Souliotis and Skubis having died. After the directed verdicts were granted in favor of the police officers and their respective municipalities, the trial continued and resulted in a $20,000 jury verdict against LaValley, who failed to appear or defend. This judgment is not involved in this appeal.

       Conservators of the Peace — Powers
      “The mayor, alderman, president, trustees, marshal, deputy marshals, policemen and watchmen, in municipalities, shall be conservators of the peace. All persons specified in this section, or authorized by any ordinance, shall have power (1) to arrest . . . .”


author: MR. JUSTICE ENGLISH

text:
    Cosmopolitan National Bank of Chicago, Guardian of the Estate of William Heap, Plaintiff-Appellant, v. Richard Heap, Defendant-Appellee.
    Gen. No. 53,408.
    First District, Fourth Division.
    August 19, 1970.

      John G. Phillips, of Chicago (Ellis B. Rosenzweig, of counsel), for appellant.
    William P. Nolan, Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

William Heap (herein referred to as plaintiff), an eleven-year-old minor, allegedly suffered fractured cervical vertebrae as a result of a fall down a stairway in his parents’ home. Cosmopolitan was appointed as his guardian and filed suit on his behalf against plaintiff’s father, seeking $50,000 in damages. Upon defendant’s motion, plaintiff’s amended complaint was stricken by the trial court, the suit dismissed, and judgment entered in favor of defendant. Plaintiff has appealed from that judgment.

Plaintiff’s amended complaint stated that, on February 20, 1966, he resided with his parents on premises owned and controlled by his father in Glenview. It alleged that plaintiff was “exercising that degree of care required by law for a minor age 11”; that defendant negligently created a private nuisance on his premises by causing or permitting a “loose, ill-fitting stairway rug to exist between floors and on a stairway”; and that defendant did not give proper warning of this condition or take precautions to avoid or avert injury to persons, especially minors, rightfully using the stairway. It also averred that the “basis of the complaint lies in the regular, usual or customary manner of maintaining the premises . . . , a duty which defendant owed to all persons.” It further alleged that defendant maintained a liability insurance policy which provided that defendant did not have to conduct the defense of any such claim for personal injury; that “the matters, charges, complaints, allegations and averments of the plaintiff herein are not directly against his father, but, in fact, against the Worcester Mutual Fire Insurance Company, the plaintiff seeking an amount within said policy limits.”

The central point of defendant’s motion to dismiss was that the suit, in essence, is an action bought by a son against his father for negligence in the operation of the family home, and that no such cause of action exists. In view of the trial court’s ruling on the motion, the specific issue presented for our review is whether an unemancipated minor child may maintain a cause of action against his father for personal injuries caused by his negligence in permitting a “loose, ill-fitting stairway rug” to be used in the family home. At the heart of this issue, the question is not one of the absence of a duty of reasonable care owed by a father to his son, but, rather, one of immunity from suit, based on public policy.

Plaintiff argues that the doctrine of parental immunity has no valid foundation in the common law and that in no Illinois Supreme Court cases has the court been called upon to apply it in mere negligence situations. Plaintiff has cited decisions from foreign jurisdictions which have discarded the parental immunity doctrine, but, as defendant’s brief shows, there are many other jurisdictions which have recently affirmed application of the doctrine. We, therefore, think that an analysis of the divergent views from outside sources would needlessly extend this opinion and offer little toward solution of the immediate problem. See citations and discussions in 19 ALR2d 423; 60 ALR2d 1284; Prosser, Law of Torts 3d ed, 1964, § 116, p 885.

The courts of this state have made favorable passing comment on the public policy bases for maintaining the doctrine of parental immunity in cases involving mere negligence. The decision in Nudd v. Matsoukas, 7 Ill2d 608, 619, 131 NE2d 525, permitted suit for wilful and wanton misconduct in the driving of an automobile, but the court made reference to the issue now before us when it stated:

Any justification for the rule of parental immunity can be found only in a reluctance to create litigation and strife between members of the family unit. While this policy might be such justification to prevent suits for mere negligence within the scope of the parental relationship we do not conceive that public policy should prevent a minor from obtaining redress for wilful and wanton misconduct on the part of a parent.

The doctrine was examined again ten years later in Mroczynski v. McGrath, 34 Ill2d 451, 454-455, 216 NE2d 317, when an incompetent sued his father’s estate, alleging, among other complaints, that he had suffered severe mental and emotional distress through destruction of the family unit by his father’s desertion and subsequent divorce. The court affirmed dismissal of the action on other grounds, but discussed its position with respect to the doctrine of parental immunity as follows:

Under the common law, a child could not maintain an action against his or her parents sounding in tort. This was a matter of public policy due to the interests of the State in maintaining harmony within the family. This doctrine of parental immunity was recognized and adopted as the public policy of Illinois in Foley v. Foley, 61 Ill App 577 and Meece v. Holland Furnace Co., 269 Ill App 164. We had occasion to review this principle in Nudd v. Matsoukas, 7 Ill2d 608, where we recognized the public policy of Illinois as declared by early decisions. We there held that while there might be sufficient justification to prevent suits for mere negligence, public policy in a case of wilful misconduct did not prevent redress of a minor from his parent, as to deprive the minor of redress in such a case would not foster family unity.

Since the instant complaint alleges mere negligence, we believe that we are required to apply the rule of parental immunity. In so doing, we consider the result to be consistent with both our Supreme Court dicta and sound public policy. On policy grounds, we are confirmed in our conclusion by the views of the court in Schenk v. Schenk, 100 Ill App2d 199, 206, 241 NE2d 12, to which we subscribe:

. . . there are no impelling reasons for eroding or emasculating the family immunity rule for conduct of either parent or child arising out of the family relationship and directly connected with the family purposes and objectives in those cases where it may be said that the carelessness, inadvertence or negligence is but the product of the hazards incident to inter-family [sic] living and common to every family. In such instances the immunity doctrine is neither unjust, unreasonable nor without a sound and solid foundation. To hold otherwise is to inject into the courts a judicial supervision over everyday family conduct of parent and child, and invite endless litigation over what is or is not ordinary negligence in the operation of a household. The assumption of the role of paterfamilias by either the courts or State, except under most compelling circumstances, is foreign to our way of life.

Plaintiff argues that these reasons are negated by the existence of the policy of liability insurance which allegedly would protect defendant from economic loss in this action. We deem this point to be without merit, since the existence or nonexistence of insurance coverage is not a proper factor in determining liability, and the introduction of such a policy into evidence would constitute error in a negligence action.

Accordingly, the judgment is affirmed.

Affirmed.

STAMOS, P. J. and DRUCKER, J., concur.

       The decision in Schenk permitted suit by a father against his daughter for injuries resulting from her negligent driving of an automobile on the public street. The court held such conduct to be outside the scope of parent-child relationship.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Leo Boney, Defendant-Appellant.
    Gen. No. 53,488.
    First District, Fourth Division.
    August 19, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Harold A. Cowen, 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 and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Defendant, a prisoner in a federal penitentiary, brings this appeal from a trial court order denying his motion for a declaratory order that a certain sentence imposed by that court had expired. Defendant originally filed this appeal in the Illinois Supreme Court, but that court, on its own motion, transferred the cause to this court with the following explanation:

The proceeding was not a habeas corpus action, nor was it brought under the Post-Conviction Hearing Act. No substantial constitutional question is involved.

Defendant, under indictment for a federal offense and in federal custody at Leavenworth, Kansas, was brought, by means of a detainer, to Cook County, where he was tried and convicted of unlawful possession of narcotic drugs on February 17, 1959. He was sentenced to a term of 2 to 4 years. Defendant was then returned to federal custody, tried on a federal narcotics offense in March, 1959, and sentenced to 15 years in the federal penitentiary. The Illinois authorities placed a detainer with the U. S. Penitentiary at Leavenworth to hold defendant for return to Illinois at the conclusion of his federal sentence. On December 9, 1959, and February 9, 1960, defendant, by counsel, presented motions which were calculated, generally, to release defendant from any obligation under his Illinois sentence. The motions were denied.

In April, 1968, defendant filed in the Circuit Court of Cook County a “Motion for Judgment,” the basis for the instant proceeding. On April 15,1968, a hearing was held on the motion without the presence of defendant, who was represented by court-appointed counsel. The court was advised of the facts as set out above, and defense counsel argued the proposition, citing authority, that defendant’s Illinois term had expired while he was in the federal penitentiary, and that his sentence should be considered served.

Defendant’s primary contention is that the court should not have proceeded to hearing without defendant’s being present, and because defendant’s petition was defective due to his not having been afforded adequate representation by counsel. In this court, defendant relies solely on the statutory requirements as established under the Post-Conviction Hearing Act. HI Rev Stats 1967, c 38, § 122-2. In view of the transfer order from our Supreme Court, finding that this proceeding was not brought under that statute, we must regard defendant’s contention to be without merit. The motion filed by defendant is not a post-conviction petition but seeks an order in the nature of a declaratory judgment that defendant’s Illinois term has expired. Further, it appears that defendant was adequately represented in the hearing. Defense counsel accurately stated the pertinent facts, and demonstrated, through a creditable argument, that he was well prepared with respect to the legal issues raised in defendant’s motion. Defendant has not shown, nor do we find, that he was prejudiced as a result of defense counsel’s representation or defendant’s inability to be present at the hearing.

The substantive allegations of defendant’s motion raise two basic questions: (1) As a matter of law, must the prior Illinois sentence of 2 to 4 years be considered concurrent with the later federal sentence, and therefore be considered as having been served? (2) Did Illinois relinquish jurisdiction when it turned defendant over to federal authorities? We answer both in the negative.

With respect to the first, two or more sentences to the Illinois penitentiary are presumed to run concurrently, unless otherwise specified in the order of the court. People v. Toomer, 14 Ill2d 385, 152 NE2d 845; People v. Oldsby, 119 Ill App2d 412, 414, 256 NE2d 27. When, however, one sentence is to a federal penitentiary and another to the Illinois penitentiary, the contrary is true, and one must commence upon the completion of service of the other unless expressly stated otherwise in the commitment order. People ex rel. Hesley v. Ragen, 396 Ill 554, 562-563, 72 NE2d 311; People v. Hopkins, 55 Ill App2d 371, 204 NE2d 613; United States v. Kanton, 362 F2d 178; Ponzi v. Fessenden, 258 US 254, 265. Thus, defendant, who has not yet served his Illinois term, must satisfy the sentence through actual confinement, in conformity with the terms and conditions of the Illinois judgment, upon completion of his federal sentence.

With respect to the jurisdictional issue, a sovereign, having jurisdiction over a convicted criminal, “may deliver such convicted person to the court of a different jurisdiction for trial, without losing its right to have him returned to serve his sentence.” People ex rel. Hesley v. Ragen, supra, at 559. Moreover, in light of a defendant’s overriding constitutional right to a speedy trial, a procedure such as that employed in the instant case is necessary. It has been held that a state must make a “diligent, good faith effort” to bring to trial a defendant, incarcerated in another jurisdiction, lest that right be violated. Smith v. Hooey, 393 US 374. Applying that principle to the case at bar, after a proper judgment was entered against defendant in Cook County, Illinois, retains jurisdiction to accomplish its execution.

The judgment is affirmed.

Affirmed.

DRUCKER and LEIGHTON, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Melvin D. McKibbins, Defendant-Appellant.
    Gen. No. 54,173.
    First District, Fourth Division.
    August 19, 1970.

      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 and Paul P. Biebel, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSE CHARGED

Theft. Ill Rev Stats 1965, c 38, § 16-1 (a).

JUDGMENT

After a bench trial, defendant was found guilty and sentenced to a term of 2 to 6 years.

CONTENTION RAISED ON APPEAL

Defendant was not proven guilty beyond a reasonable doubt.

EVIDENCE

Ann Vozikis, for the State:

She is a saleslady in the leather goods department of the downtown Marshall Field & Company store. On February 10, 1967, at closing time (6:00 p. m.), she took approximately $240 in currency out of a cash register and placed it into a green bag. The denominations of bills included twenties, tens, fives and singles, in addition to change and several checks totaling at least $100. She estimated the total of money and checks at about $350, based upon an actual count which she had taken at 3:00 p. m., when there was $200 in the register, and additional sales made before closing. She then placed the bag next to the register, bent down to change her shoes, and, upon straightening up, noticed that the bag was gone. She identified the bag offered into evidence as being exactly like the one in which she had placed the money belonging to Marshall Field & Company.

Charles Brown, for the State:

On February 10, 1967, he was working as a store detective for Marshall Field & Company. At approximately 6:00 p. m., as he was standing on the balcony overlooking the main floor on the Wabash Avenue side of the store, he noticed a person reach behind the counter in the leather goods section, take a green bag, proceed down the main aisle, and leave the store. He identified defendant as that person. He had seen him in the store “a couple of times” before.

The witness and a fellow detective followed defendant and a companion one block north to the corner of Wabash and Lake, where he saw them enter a restroom in a small building on a parking lot. The witness tried the restroom door and found it locked. Since there was no other exit, they sat and waited for approximately twenty minutes, when defendant and his companion emerged. Defendant had a brown bag which he placed on a chair outside the restroom.

The witness arrested defendant, looked into the bag, and found some sweaters and a green bag. He opened the green bag and found it to contain $16.71 in change and over $100 in personal checks payable to Marshall Field & Company. A search of defendant’s person produced four $20 bills, one $10 bill, one $5 bill, and twenty-four $1 bills loose in his pocket. Defendant’s wallet contained one $5 bill and nine $1 bills. The witness identified the same green bag which had been identified by Mrs. Vozikis.

Defendant, on his own behalf:

He was shopping with a friend in Field’s at approximately 6:00 p. m. on the day in question, but was not in the leather goods section, nor did he take anything from any counter. He had a shopping bag from another store, but the green bag, bearing the name Marshall Field & Company, was never in his possession, nor had he ever seen it before. He and his friend had gone to the parking lot to use the washroom.

At the hearing on aggravation and mitigation, it was shown that, between the years 1959 and 1967, defendant had been convicted on four separate occasions for petty larceny or shoplifting, and each time had been given jail sentences of 6 months. He is also under sentence of a year to a year and a day for jumping bail.

OPINION

Defendant contends that there are substantial conflicts in the evidence sufficient to raise a reasonable doubt of his guilt. He asserts that the evidence of the theft, as related by the saleslady who stated that she placed the bag next to the cash register, conflicts with that offered by the detective who testified that defendant reached behind the counter to take the bag. Both could be factual, but if there is a discrepancy, it is so minor as not to affect the judgment of the trial court. There is overwhelming evidence of guilt, including the detective’s positive identification of defendant as the man who committed the theft. Also, the detective testified that he kept defendant in sight from the time of the theft until defendant entered the restroom at the parking lot. Defendant admitted being in the store and at the parking lot where he was arrested immediately upon coming out of the locked restroom and having possession of the green bag, bearing the name Marshall Field & Company, money, and checks payable to Marshall Field & Company. This exclusive and unexplained possession of recently stolen property may, by itself, raise an inference that defendant had obtained possession of the property by theft. People v. Reynolds, 27 Ill2d 523, 525, 190 NE 2d 301; People v. Boulahanis, 50 Ill App2d 440, 442, 200 NE2d 372.

Defendant also urges that a variance existed between the indictment, which charged that $222 was taken, and evidence of the crime, which showed that only $133 was recovered from defendant’s person. However, $16.71 in change and over $100 in checks were found in the green bag. (Defense objections, which were erroneously sustained, precluded the State from introducing evidence of whatever might have been found on the person of defendant’s companion at the time of arrest.) We are of the opinion that this proof relating to the amount taken was in substantial conformance with the charge in the indictment, any discrepancy in the amount of the money stolen being unimportant on the issue of guilt. People v. Kelly, 66 Ill App2d 204, 210, 214 NE2d 290.

While defendant has argued that conflicting testimony as to the amount of money stolen raised a doubt of defendant’s guilt, no point has been made as to the propriety of defendant’s sentence which depends for its validity on proof that the property stolen exceeded $150 in value. Ill Rev Stats 1965, c 38, § 16-1. We believe the proof was adequate in this regard, as the test must be applied to the value of the property stolen, and not the value of that which may have been recovered in possession of defendant after he had had an opportunity to dispose of some of the proceeds. People v. Hansen, 28 Ill2d 322, 340, 192 NE2d 359.

Defendant’s testimony of denial raised only a question for the trier of fact whose duty it is, when considering contradictory testimony, to determine the credibility of the witnesses and the weight to be accorded their testimony. People v. Coulson, 13 Ill2d 290, 149 NE2d 96; People v. Cool, 26 Ill2d 255, 186 NE2d 254.

The judgment is affirmed.

Affirmed.

DRUCKER and LEIGHTON, JJ., concur.


text:
    Benjamin Seaman, Plaintiff-Appellant, v. Lawn Savings and Loan Association, a Corporation, et al., Defendants-Appellees.
    Gen. No. 54,631.
    First District, Fourth Division.
    August 19, 1970.

      Philip S. Aimen, Morris Topol, and Martin S. Gerber, of Chicago (Philip S. Aimen, of counsel), for appellant.
    Pope, Ballard, Kennedy, Shepard & Fowle, of Chicago (Jack Osswald and Michael A. Warner, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiff has presented his case in this court as an interlocutory appeal under Supreme Court Rule 307(a) (Ill Rev Stats 1969, c 110A, § 307 (a)), claiming that, by the two orders appealed from, the trial court had refused to modify an injunction. Defendant Federal Savings and Loan Insurance Corporation, as Receiver for Lawn Savings and Loan Association, has moved to dismiss the appeal.

In 1966, plaintiff filed his complaint, alleging in Count I that he was entitled to an accounting from Lawn, and in Counts II through VIII seeking reimbursement from certain mortgagors. Some two years later, Lawn became insolvent, a receiver was appointed, and in May, 1968, a liquidation proceeding was commenced. On June 17, 1968, an injunction was entered in the liquidation case restraining all persons from attempting to obtain any judgment against Lawn, or proceeding against its assets.

On July 17, 1969, plaintiff presented a two-part motion in the instant case: (1) for leave to file an amended complaint; and (2) for modification of the injunction in the liquidation proceedings to permit him to pursue his claim for accounting against Lawn in this case.

The proposed amended complaint in Counts I, II and III would again have sought an accounting from Lawn, adding as a defendant the Federal Savings and Loan Insuranee Corporation, as Receiver for Lawn; and in Counts IV through XI would again have sought other relief from mortgagors. Thus, the part of plaintiff’s motion asking for modification of the injunction had no bearing upon any counts of the proposed amended complaint other than Counts I, II and III.

After hearing, an order was entered on October 10, 1969, denying both parts of plaintiff’s motion, without prejudice to plaintiff’s right to seek redress in the liquidation proceeding.

On November 3, 1969, plaintiff presented a motion for "modification and correction” of the order of October 10, 1969. In this motion, plaintiff again asked for leave to file an amended complaint, but this time limited to Amended Counts IV through XI. The concluding paragraph of the motion stated:

It was the intention of this Court to deny to the plaintiff leave to file Counts I, II, and III of the Amended Complaint as to defendant, Lawn Savings and Loan Association, and as to the Federal Savings and Loan Insurance Corporation and not to deny leave to file Counts IV through XI of the Amended Complaint as to the other defendants, so that the order of October 10, 1969 should be modified and corrected accordingly and plaintiff should be given leave to file Counts IV through XI inclusive of the Amended Complaint instanter.

The motion was denied.

Thereafter, on November 26, 1969, plaintiff filed a Notice of Interlocutory Appeal, purporting to appeal from both the order of October 10, 1969, and the order of November 3, 1969, specifically describing the latter order as having denied to plaintiff “leave to file Counts IV through XI of the Amended Complaint.”

In the F. S. L. I. C. motion to dismiss this appeal, it is pointed out that Rule 307, which is the only authority for interlocutory appeals relating to injunctions, establishes a period of 30 days within which a notice of appeal must be filed in order to perfect the appeal. If we assume that the order of October 10 was appeal-able under Rule 307 (even though it was entered in an action other than the one in which the injunction had been entered), it is apparent that the Notice of Appeal filed on November 26 did not meet this time restriction for the purpose of appeal from the order of October 10, unless the permissible time was extended in some way.

Plaintiff argues that his motion of November 3, being within 30 days after the order of October 10, started over again the time for filing a notice of appeal, under the authority of section 68.3 of the Civil Practice Act. Ill Rev Stats 1969, c 110, § 68.3. But that statute deals with motions to vacate or modify final decrees or final judgments in cases tried without a jury. It does not appear to have any relation to interlocutory orders. The same is true, also, of the tolling of time after final judgment by the filing of a post-trial motion as provided for in Supreme Court Rule 303(a). Ill Rev Stats 1969, c 110A, § 303(a).

Furthermore, as can be seen from the factual recital above, the motion of November 3 did not ask the court to vacate or modify the October 10 order in its entirety. It sought a modification only with respect to those counts of a proposed amended complaint which were outside the scope of the relief which plaintiff had sought through modification of the liquidation proceeding’s injunction as it related to plaintiff’s claim for accounting against Lawn. The only part of the October 10 order which might be considered “injunctional” in its nature, was therefore not affected, and any issue relating thereto remained settled and disposed of. See Kerner v. Thompson, 365 Ill 149, 155, 6 NE2d 131.

The notice of appeal filed on November 26 would have been timely if the order of November 3 denying leave to file an amended complaint were appealable. Plaintiff asks us to consider the November 3 order as appealable either as an interlocutory injunctional order under Rule 307, or as a final judgment under Rule 303, and plaintiff’s notice of appeal has been amended accordingly. We think it was neither, and therefore not appealable. Koontz v. Public Service Co., 325 Ill App 260, 59 NE2d 351; Allensworth v. First Galesburg Nat. Bank, 15 Ill App2d 49, 145 NE2d 264.

The case is still pending on the issues drawn under the original complaint, and there has been no final disposition of the rights of the parties. See Harris Trust & Savings Bank v. Briskin Mfg. Co., 63 Ill App2d 12, 211 NE2d 32.

Appeal dismissed.

STAMOS, P. J. and DRUCKER, J., concur.

       This interpretation of the statutory language is borne out by the Joint Committee Comments which refer to the fact that the section “provides a procedure for post-trial motions in nonjury cases comparable to the procedure prescribed by section 68.1 for motions after verdict in jury cases.” SHA c 110, § 68.3.


author: STOUDER, J.

text:
    Montgomery Ward & Company, an Illinois Corporation, Plaintiff-Appellant, v. Henry Simmons, a/k/a Henry H. Simmons, Ewing Kennedy and Ella Kennedy, Defendants-Appellees.
    Gen. No. 70-7.
    Third District.
    August 19, 1970.

      Harold C. Lounsberry, of Rock Island, for appellant.
    Winstein, Kavensky & Wallace, of Rock Island, for appellees.
   STOUDER, J.

Plaintiff-Appellant, Montgomery Ward & Company, brought this action in the Circuit Court of Rock Island County against Henry Simmons, Ewing Kennedy and Ella Kennedy, Defendants-Appellees, seeking to set aside a deed from Simmons to the Kennedys as being in fraud of creditors. The action was dismissed after plaintiff had presented its evidence, the motion therefore being described as a motion for a directed verdict. Since no jury was involved, reference to a verdict was not the correct phraseology but the purport of defendants’ motion was for judgment in their favor which as applied to the particular proceeding, meant that the defendants sought to have the complaint dismissed for want of equity. Plaintiff has appealed from the dismissal of its cause of action.

On February 1, 1967, Montgomery Ward & Company brought suit against Henry Simmons and Modeana Nabors, to recover for merchandise purchased on the Simmons’ charge account during 1964 and 1965. Judgment for $695 was entered on this claim on October 25, 1967.

Henry Simmons and his wife conveyed the property which is the subject of this proceeding, to the Kennedys, Ella Kennedy being the daughter of the wife of Henry Simmons.

Details of the conveyance were elicited from Ewing and Ella Kennedy, called by plaintiff as adverse witnesses under section 60. Their testimony was the only evidence regarding this issue.

According to their testimony, the property involved was low value income property subject to a mortgage in the amount of $2,600. The conveyance was subject to such mortgage and no monetary consideration was given by the Kennedys to Simmons for the conveyance. At the time of the conveyance and prior thereto, the building on the property was in such a poor state of repair that it had been condemned by the Rock Island authorities and would have to be either torn down or substantially repaired. Henry Simmons, the record owner, was at the time old, unemployed and without funds to do anything with the property. Ewing Kennedy was willing and able to undertake the subtantial repairs required and did so after the conveyance. Such work included completely rewiring the building, installing a new heating system, as well as other necessary repairs. It also appears that at the time of the transfer, Ella Kennedy indicated to Simmons that he could always have a home with them. Simmons did not live in the subject property, so no question of homestead is involved. Neither of the Kennedys had any knowledge of the Montgomery Ward claim or the pending legal action relating thereto.

Plaintiff argues that on the basis of the foregoing facts, it made out a case of fraud uncontradicted by any other evidence.

It is not claimed that either Simmons or the Kennedys are guilty of fraud in fact, and there is no suggestion that the evidence indicates that there was any deliberate intention to defraud creditors by the conveyance. Rather, the basis for setting the deed aside is referred to sometimes as fraud in law or constructive fraud.

Thompson v. Williams, 6 Ill2d 208, 127 NE2d 457 and Till v. Till, 87 Ill App2d 358, 231 NE2d 641, discuss the principles applicable to constructive fraud. The principles relating thereto are designed to implement the general equitable maxim that a party ought to be just before being generous. The general principle is that where there has been a voluntary transfer without consideration or for an inadequate consideration which hinders or delays the rights of creditors against the transferor, such transfer will be deemed to be fraudulent and set aside. No specific intent to defraud is required and it is the effect of the transfer under the circumstances which is the gist of the action. Birney v. Solomon, 348 Ill 410, 181 NE 318. Where the transfer is between members of a family, the burden is upon the debtor or his transferee to rebut the implication of improper intent and to show that the transfer was in good faith.

Based on the authorities cited above, there is little doubt that the plaintiff in the case at bar made out a prima facie case. However, the same testimony presented evidence rebutting such prima facie case. It is our view that such rebuttal evidence raising a question of fact as it did, amply supported the trial court’s action and its resolution of the factual issue in favor of defendants. That there may be evidence which would have supported a contrary result does not render the trial court’s decision erroneous. Broncata v. Timbercrest Estates, Inc., 100 Ill App2d 569, 241 NE2d 569.

We do not regard the promise of the Kennedys to provide a home for Simmons as consideration for the transfer, the promise was entirely executory and created no equities superior to those of creditors. On the other hand, the facts indisputably show that the value of the property at the time of transfer was speculative and contingent and whether it was retained by Simmons or transferred would have no effect on the rights of creditors in the collection of their claims. Furthermore, equities of the Kennedys intervened between the transfer and the commencement of this action. As indicated above, substantial repairs were made on the building in good faith and under such circumstances, there is evidence from which the trial court could have properly concluded that setting aside the conveyance would be inequitable.

For the foregoing reasons, the judgment of the Circuit Court of Rock Island County is affirmed.

Judgment affirmed.

RYAN, P. J. and ALLOY, J., concur.