text:
    Geraldine Kay, Plaintiff-Appellee, v. The Village of Palatine, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 53,908.
    First District.
    June 12, 1970.

      Littlejohn and Glass, of Chicago (Bradley M. Glass, of counsel), for appellant.
    Herbert Lesser, of Chicago (Herbert Lesser and Willard J. Lassers, Elson, Lassers and Wolff, of Chicago, of counsel), for appellee.
   STOUDER, J.

Plaintiff-Appellee, Geraldine Kay, brought this action in the Circuit Court of Cook County against the Village of Palatine, Defendant-Appellant. The action sought an accounting and damages with respect to funds received by the Village from special assessments. William Kunkel and Helen Sutton are the owners of special assessment bonds issued by the Village in anticipation of the receipt of proceeds of certain special assessments and will be referred to as the plaintiffs, the named plaintiff being a nominee. The trial court entered judgment in favor of the plaintiffs in the amount of $54,760.52 and it is from such judgment that the Village of Palatine has appealed.

During the years 1922 to 1929, the Village of Palatine issued special assessment bonds payable out of special assessments levied for local improvements. The bonds were payable in yearly installments together with interest over a period of 10 years.

On account of the depression, defaults on the bonds occurred and the bonds which are the subject of this proceeding, were purchased by the present holders in the 1930’s and 1940’s after default.

The complaint alleges numerous violations of its duties by the Village as Trustee including commingling of funds, etc. The gist of the complaint is that the Village after collecting and receiving payments of the special assessments did not distribute the same according to law in that the Village failed to pay plaintiffs a pro rata amount of such collections.

Each party employed an auditor who independently audited the special assessment records of the defendant Village. Each auditor reached substantially the same conclusion concerning the amounts collected by the Village and not distributed to the plaintiffs, the only difference being that plaintiffs’ auditor claimed approximately $3,000 more was due on account of payments received before the maturity of the bonds. The trial court rejected plaintiffs’ claim for the extra amount and the judgment represents an amount based on the stipulation of the parties as to the amount due at the time the audit was made.

From the testimony of the Village auditor it appears that there were practically no special assessment records available for the period prior to 1934. Subsequent to 1934 but prior to 1960, Village records were inadequate and incomplete. Subsequent to 1960, the records of the Village were complete. Of the amount stipulated to having been collected but not distributed approximately $10,000 was on hand, the remainder, including interest and penalties, was collected but was neither on hand nor distributed to plaintiffs.

As revealed by audits the Village admitted that it had failed to pay over to the bondholders ratably the 'amounts collected from the special assessments and that such failure was contrary to law. The only defense raised by the Village in the Trial Court and on this appeal is the defense of laches. The testimony on this issue is largely undisputed.

Kunkel and Sutton were real estate brokers also engaged in the business of buying special assessment bonds. Each owned bonds in the estimated total amount of one half million to one million dollars. Each owned special assessment bonds of twenty to twenty five municipalities in northern Illinois and Indiana.

According to the testimony of Ahbe, agent for Kunkel as corroborated by Margaret Godknecht, Palatine Village Treasurer from 1934 to 1956, the bondholders or their agents made more or less regular annual inquiries concerning payments received by the Village Treasurer. Either the bonds themselves, or a list thereof were brought to the Village Treasurer and inquiries were made concerning what funds had been collected. If funds were available payment would be made to the bondholder. As shown by the audits only a portion of the funds to which the bondholder was entitled was paid. Amounts were collected and improperly distributed during the 1930’s, 1940’s and 1950’s.

According to Ahbe, he saw an undated letter in 1964 in which the Village in return for surrender and cancellation of the special assessment bonds, offered to pay such bondholder the amount collected for such bond or 10 per cent of the principal. The letter mentioned that if the amount in the special assessment fund was insufficient to pay the amount collected, the difference would be made up from the general fund. Ahbe discussed the proposed settlement with the then Village Treasurer in 1964 but declined to accept the approximate $9,500 which the Village claimed it had collected for the Kunkel bonds in full settlement thereof. As a consequence the letter was turned over to an attorney and the audit which revealed the Village’s improper distribution of special assessment funds was undertaken.

The trial court found that plaintiffs were not guilty of laches barring their rights to recover. It is this conclusion which defendant argues is erroneous as a matter of law. To the extent that the judgment includes approximately $10,000 which the defendant had in its possession at the time suit was instituted it is conceded by defendant that plaintiffs are entitled to such sum.

It is well settled that a municipality is by statute a trustee with respect to the levy, collection and disbursement of special assessment funds. Rothschild v. Village of Calumet Park, 350 Ill 330, 183 NE 337. In the case at bar it is admitted by the defendant Village that it collected funds which ought to have been paid over to plaintiffs and that in violation of its duty, distribution was not made as required. As indicated above, the auditor for plaintiffs and the auditor for defendant are in agreement concerning the amounts collected, disbursed and not disbursed.

The equitable doctrine of laches refers to the lapse of time accompanied by other facts and circumstances which makes the enforcement of the claim inequitable. Piff v. Berresheim, 405 Ill 617, 92 NE2d 113. Defendant relies principally on Whitaker Co. v. City of Carbondale, 55 F Supp 72 (SD Ill) in support of its argument that laches precludes plaintiffs’ recovery in the case at bar.

In Whitaker, the court held that plaintiff bondholder was barred from recovery for three reasons. First, the municipality had unconditionally repudiated its liability more than 14 years before the suit was filed, second, more than 20 years had elapsed since the municipality had made any payments on the bonds and third, either the plaintiff or his predecessor had actual knowledge of the defaults complained of more than 25 years prior to the commencement of the action. Since none of these circumstances exist in the case at bar, the Whitaker case, in its general reasoning, supports the action of the trial court rather than a contrary view. In the case at bar the Trustee Village did not repudiate its obligation at any time. It continued making payments until shortly before this action was filed and plaintiffs are not charged with actual notice of the defaults complained of.

Defendant insists that plaintiffs are guilty of laches because they failed to exercise due diligence to discover the Village’s breach of trust and also that the Village ought not to be compelled to pay such claims at such a late date because of undue hardship.

As can be seen from the foregoing facts, defendant argues that because the bondholders were “professional” or “sophisticated” their failure to discover the Village’s breach of trust was the result of their failure to exercise due diligence. We find no merit to this contention.

It is axiomatic that the Village as Trustee had a duty of fidelity toward its bondholder beneficiaries. They were not parties dealing at arms length but on the contrary the beneficiary was entitled to and did repose trust and confidence in the Village. The beneficiary bondholders were not required to be distrustful or suspicious of the conduct of the Village Treasurer absent circumstances which would have warranted a reasonable suspicion that the Trustee might not have been fulfilling its duties. From the foregoing facts it does not appear that there was anything suggesting misconduct by the Trustee which ought to have been investigated. The Trustee made more or less regular payments to the bondholders. Nothing in the manner of payment or the amount thereof suggested any reason for the bondholders to become suspicious. The evidence indicates not only that other special assessment bondholders of the Village of Palatine acted as did the plaintiffs but also that plaintiffs serviced their Palatine bonds in the same manner as they serviced their bonds with other municipalities. In this connection it should be observed that defendant has wholly failed to offer any evidence as to any time when its defaults should have become known to plaintiffs.

Special reference has been directed to the fact that Lawrence Sutton, who died in 1959, had two or three years prior to his death, filed suit against the Village of Palatine with respect to other special assessment bonds not the subject of this proceeding. His widow was questioned concerning this action and she indicated that she knew some proceeding had been filed and that it had been settled. According to her testimony the bonds included in the present action were apparently in the possession of a bondholders’ protective committee and their whereabouts were unknown to her until after her husband’s death. The defendant asserts that Mrs. Sutton is precluded from recovery on her bonds because of her deceased husband’s knowledge of the Village’s defaults. Such an assertion might be valid if supported by the evidence. However, so far as the record discloses the only reference to the prior suit is the fact that it was filed with respect to other special assessment bonds and settled. The basis for the action is not shown in the record and there is no indication that the action was based on the Village’s failure to ratably distribute special assessment funds. Accordingly such assertion is beyond the record.

We likewise find no merit to the Village’s contention that recompense for its breach of trust, ought to be denied because of hardship. So far as the record is concerned, the breach of duty of the Village is clearly established and the obligation to respond in damages as a consequence thereof is no more of a hardship than any other obligation to respond in damages.

Finding no error in the judgment of the Circuit Court of Cook County, judgment is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: STOUDER, J.

license: Public Domain

text:
    Joseph F. Wijas and Anna Wijas, His Wife, Plaintiffs-Appellees, v. Hamilton Clorfene and Hilda Clorfene, His Wife, La Salle National Bank, a Banking Corporation as Trustee Under Trust No. 32395, Philip W. Regner, A-L Auto Driving School, Inc., a Corporation, Richard Bailey, and “Unknown Owners,” Defendants-Appellants.
    Gen. No. 53,911.
    First District.
    June 12, 1970.

      Rappaport, Clorfene & Rappaport, of Chicago (Hamilton Clorfene, of counsel), for appellants.
    Everett Lewy, of Chicago, for appellees.
   STOUDER, J.

Plaintiffs-Appellees, Joseph Wijas and Anna Wijas, husband and wife, brought this action in the Circuit Court of Cook County to quiet title to two parcels of land. Plaintiffs claim title by virtue of Ill Rev Stats 1967, c 83, § 1 (20 years adverse possession). Defendants are successors in interest to Rudolph Toth now deceased. The court granted the prayer of the complaint and from such decree defendants have appealed.

On April 12, 1935, plaintiffs, Joseph and Anna Wijas, purchased the house and sixty foot lot for $9,500 from Rudolph Toth and his wife. The premises were legally described in the warranty deed delivered to plaintiffs. Such premises are described in the complaint as parcel A and there is no dispute concerning plaintiffs’ ownership thereof.

At the time the Toths sold parcel A to the plaintiffs the Toths also owned the real estate contiguous to parcel A and constituting all of lot 1 south of parcel A between parcel A and Elston Avenue. Of the property owned by the Toths in 1935 lying south of parcel A, an immediately contiguous strip is described in the complaint by metes and bounds and referred to as parcel B and it is parcel B which is the area in dispute. Parcel B in general, extends from the south line of parcel A to a garage building located on the remainder of the Toths’ property.

There is not now nor was there ever any monument, fence or anything else which delineated the south line of parcel A or the north line of parcel B. Prior to their sale of parcel A in 1935, the Toths had built a rock garden and fish pond which was located at least in part on parcel B. The Toths had also built a concrete walk which led from the rear of the home across parcel B to Elston Avenue, which sidewalk remains in the same location. At the time of the sale there was a farm type wooden fence around three sides of parcel A and along two sides of parcel B, the filling station or garage building closing off the third side of parcel B.

Since plaintiffs’ claim was based on 20 years adverse possession of parcel B, they presented evidence concerning their conduct with respect to parcel B subsequent to 1935, it being the claim of the plaintiffs that they took adverse possession of parcel B at the same time they purchased parcel A. The only evidence presented by defendants was the testimony of an attorney who had handled the sale transaction in 1935. He had no knowledge of the property thereafter.

The trial court in a memorandum opinion later incorporated into the decree, made numerous findings of fact relating to and in support of the necessary factors or conditions which must exist before title based on adverse possession for more than 20 years can be asserted.

In seeking to reverse the trial court’s action the defendants argue principally that the evidence as a matter of law does not support the requirements necessary to establish title by adverse possession. In particular they argue that the evidence is insufficient to show one, that the possession of plaintiffs was hostile in its inception, two, that the plaintiffs were in adverse possession of parcel B or three, that plaintiffs’ possession of parcel B was exclusive.

The general rules regarding title by adverse possession are well settled. The possession must be hostile in its inception and so continued without any interruption for a period of twenty years. It must be an actual visible and exclusive possession acquired and retained under claim of title inconsistent with that of the true owner. Turney v. Chamberlain, 15 Ill 271. As a corollary to the nature and character of the possession required it has sometimes been said that the proof of possession must be strict, clear and unequivocal. Pullman Car v. Stroh, 349 Ill 492, 182 NE 399 and Zirngibl v. Calumet Dock Co., 157 Ill 430, 42 NE 431. As in other civil cases the adverse claimant has the burden of proof to prove his case by a preponderance of legally competent evidence. Grim v. Murphy, 110 Ill 271 and New York Central Railroad Co. v. Kinsella, 324 Ill 339, 155 NE 284.

Defendants insist that the evidence fails to support any conclusion that the possession of plaintiffs was hostile in its inception. In accord with allegations set forth in their complaint, the plaintiffs testified that at the time of the purchase of parcel A from the Toths in 1935, the Toths indicated that the improvements on and the area now designated as parcel B, would be the property of plaintiffs.

For possession to be hostile in its inception, no spirit of animosity or hostility is required nor need the adverse claimant be guilty of deliberate or wilful tortious conduct. The essence of such possession is that it be in opposition to the possession of the true owner and not be subordinate thereto. Hunsley v. Valter, 12 Ill2d 608, 147 NE2d 356. Defendant argues that if the adverse claimant believed at the time of the inception of his possession that he was the record owner his possession could not be hostile. The only authority for such argument called to our attention by defendant is dicta in LeMont National Bank v. Boza, 65 Ill App2d 1, 213 NE2d 72. We do not believe that such dicta is or was the prevailing rule in Illinois since it is not supported by the case cited (Wiedrich v. Howard, 7 Ill2d 589, 131 NE2d 508) and is contrary to other cases namely, Krause v. Nolte, 217 Ill 298, 75 NE 362, Grim v. Murphy, 110 Ill 271, Cassidy v. Lenahan, 294 Ill 503, 128 NE 544 and Weber v. Anderson, 73 Ill 439. Where a purchaser takes possession of property which the seller intends to convey possession of the purchaser is neither subordinate nor permissive. Indeed there could hardly be a more unequivocal claim of ownership by such possession in opposition to the claim of a record owner.

If, as we believe, the possession of plaintiffs was hostile in its inception then it follows that cases where the original possession was not hostile are not applicable and notice that the legal owner’s title will no longer be recognized is not required.

According to the testimony of plaintiffs and the several neighbors who testified in their behalf, the plaintiffs used and maintained the fish pond, rock garden and sidewalk which were on parcel B. They also maintained and repaired the “farm type” wooden fence and hedges around parcels A and B as described above. The plaintiffs also replaced the wooden fence by a chain link fence also known as a cyclone fence. The witnesses were in some disagreement as to when the fence was replaced, their opinions ranging from twelve to twenty-two years. Additionally plaintiffs planted flowers, bushes, mowed the grass on parcel B and kept the sidewalks adjacent thereto free from snow when required. They also built a barbecue pit on parcel B as well as a flag pole.

Defendants argue that the acts and conduct of plaintiffs amounted to at most the acts and conduct of permissive trespassers and were of insufficient significance to conclude that the plaintiffs were exercising the dominion and control of parcel B as owners. We do not believe this conclusion is warranted from the evidence or by the cases cited by defendants.

The thread which runs through most of the cases discussing title by adverse possession is that the extent or degree of dominion or control required is largely determined by the nature of the property. The use and control of property is the usual mode evidencing ownership. Leonard v. Leonard, 368 Ill 572, 17 NE2d 553. Such improvements or acts of dominion over the land as will indicate to persons residing in the immediate neighborhood who has the exclusive management control of the land are sufficient to constitute possession. Augustus v. Lydig, 353 Ill 215, 187 NE 278. Important as the specific uses of parcel B as heretofore outlined are, they become even more important when parcel A and parcel B are considered together. So far as the evidence is concerned parcel B was used and the witnesses so considered it as an integral part of the homestead conveyed to plaintiffs. The fences as they existed in 1935, and as maintained and rebuilt by the plaintiffs, significantly contributed to the conclusion that parcels A and B were both owned and possessed by the same owner. See Augustus v. Lydig, supra.

Defendants direct our attention to the absence of evidence that plaintiffs paid the real estate taxes on parcel B. Wijas, one of the plaintiffs, in response to a question relating to real estate taxes, indicated that he did not know whether or not he had paid real estate taxes on parcel B. Ill Rev Stats 1967, c 83, § 1, does not require the payment of real estate taxes to establish title by adverse possession, such circumstances being covered specifically by other sections of the statute. Nonpayment of real estate taxes is a factor to be considered in determining the character of the possession of land but it is not conclusive and under the circumstances of this case the nonpayment of real estate taxes is not particularly inconsistent with plaintiffs’ claim of ownership.

Lastly we find no merit in defendants’ claim that plaintiffs were not in exclusive possession of parcel B. In 1929 the Toths executed a written lease to the Spartan Petroleum Company, the lease running for ten years. The leased premises included a ten foot strip north of the garage building, such strip being included in the property described and designated parcel B. The lease was recorded and it is defendants’ assertion that on account of such lease the plaintiffs’ possession could not therefore have been exclusive.

We find no merit to this argument. It confuses the right of possession with actual possession which is the issue involved in the case at bar. The Toths as record owners of the remainder of parcel B, also had the right of possession thereof so far as the legal rights thereto are concerned. Whether the garage building lessee had the right of possession of the strip is immaterial so long as it was not in actual possession thereof. The evidence in this regard is undisputed and uncontradicted. The side of the garage building next to the strip which in fact formed a closure of the third side of parcel B, had no doorway or other means of entrance to or onto the ten foot strip. The only access thereto from the garage would have required a circuitous route around the fences enclosing parcel B. The only evidence presented to the trial court was that the ten foot strip was occupied and possessed in the same manner as the remainder of parcel B.

Finding no error in the decree of the Circuit Court of Cook County the decree of said Court is affirmed.

Decree affirmed.

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


author: MR. JUSTICE ADESKO

text:
    Jimmy Napier, a Minor, by Orlena Napier, His Mother and Next Friend, Plaintiff-Respondent, v. Angelo DiCosola, Willett Motor Coach Co., and Sam Solomone, Defendants-Petitioners.
    Gen. Nos. 52,756, 52,759. (Consolidated.)
    First District, First Division.
    June 15, 1970.
    Rehearing denied July 13, 1970.

      McKenna, Storer, Rowe & Haskell, of Chicago (John W. Storer and John D. Daniels, of counsel), for defendants-petitioners, Sam Solomone and Willett Motor Coach Company.
    Vogel & Vogel, of Chicago (Robert C. Vogel and Robert Guritz, of counsel), for defendant-petitioner, Angelo DiCosola.
    Lloyd P. Douglas, of Chicago (Lloyd P. Douglas and Gerald M. Chapman, of counsel), for plaintiff-respondent, Jimmy Napier.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Plaintiff, Jimmy Napier, a deaf-mute since birth, aged 6 years and 4 months at the time of the occurrence, was a passenger in defendant Willett’s bus, returning from a school for handicapped children. Codefendant, Sam Solomone, was the driver of the bus. Jimmy lived at 2117 West Ohio Street on the south side of the street, about three doors west of the intersection with Hoyne Avenue, in Chicago. On October 6, 1961, about 3:50 p. m., the bus arrived at the intersection, having travelled north on Hoyne Avenue, a four-lane street, including parking lanes on each side. The bus stopped at the southeast corner. There was no one waiting for Jimmy. The driver stopped the bus and angled it across the north and southbound lanes to block both lanes of traffic. He activated the red flasher lights on top of the bus and extended the “stop signal” out from the left side of the bus.

Defendant, Angelo DiCosola, was driving his car south on Hoyne Avenue and stopped at the northwest corner of Ohio Street. Solomone motioned Jimmy to get off the bus which he did. He walked to the west curb, looked back toward the bus, waving to the children on the bus. He stepped up on the west curb of Hoyne Avenue and stepped down into the street into the path of a southbound car. Defendant, DiCosola, had started his car forward toward an empty parking space south of Ohio Street in the west parking lane of Hoyne Avenue. Solomone saw this and blew his horn and yelled. Di Cosola’s car struck Jimmy, who was then two feet from the west curb in the crosswalk. The car stopped immediately upon impact.

Jimmy was taken to the hospital, but allowed to go home after receiving first aid. His face and arms were cut and he had bruises on his hip and leg. He seemed unsteady and had difficulty standing up. He was taken back to the hospital where he remained until the next day. A doctor’s diagnosis at the hospital was “Abrasions and contusions, right elbow. Contusions of right thigh. Possible brain concussion, mild.”

After this occurrence, Jimmy did not get along with his brothers and sisters or the other children. Electroencephalograms were made of Jim on December 14, 1964, and August 10, 1967. The doctor’s opinion at that time was that Jim had an epileptic process, initially located at the left temporal area, but subsequently involving both the temporal and parietal areas of the left side. The doctor indicated that with increasing time and age, an epileptic process increases. The doctor testified that Jim’s injuries could be caused by the occurrence involved.

Suit was filed on August 27, 1962, against Willett, DiCosola and Solomone. All of the defendants denied liability. Motions of all the defendants at the close of plaintiff’s evidence and at the close of all the evidence were denied. The cause was submitted to the jury which returned a verdict finding each of the defendants not guilty, and judgment was entered thereon.

Plaintiff’s post-trial motions for judgments notwithstanding the verdict against each and all of the defendants and for a new trial as to damages only were denied. On November 22, 1967, the trial court granted plaintiff’s motion for a new trial on all the issues as to all defendants.

Petitioners’, Willett Motor Coach Co., and Sam Solomone, petition for leave to appeal maintains that the trial court’s ruling granting a new trial was based either on an erroneous determination of law or constituted an abuse of discretion in usurping the function of the jury.

Petitioner Angelo DiCosola’s petition for leave to appeal raises the question whether there is any justification in the law for the trial court’s decision granting the plaintiff a new trial.

Plaintiff filed notice of cross appeal in order to protect the issues arising upon the denial of his motion for judgment notwithstanding the verdict as to the issue of liability.

The record of this appeal presents several factual evidentiary disputes. Did Jimmy Napier, after leaving the bus, walk in front of the bus or in back of it? There is a conflict in the testimony as to whether Sam Solomone, the bus driver, was directed to deliver the boy in front of his home or at the nearest corner under certain circumstances. Who gave Sam Solomone such a directive? Was it his employer, the boy’s mother, or the principal of the school which Jimmy Napier attended? The jury heard all of this conflicting testimony and reached a verdict.

In Kahn v. James Burton Co., 5 Ill2d 614, 126 NE2d 836 (1955), the court said at page 623:

“A verdict will not be set aside merely because the jury could have found differently or because judges feel that other conclusions would be more reasonable. (Lindroth v. Walgreen Co., 407 Ill 121.) In the trial of a law suit, questions of one’s due care, another party’s alleged negligence and the proximate cause of such injured party’s injuries and damages are pre-eminently questions of fact for a jury’s determination. Under our system of jurisprudence, jury determinations can be set aside only when a court of review, or a trial court upon proper motion, is clearly satisfied that they were occasioned by passion or prejudice or found to be wholly unwarranted from the manifest weight of the evidence.”

In Ney v. Yellow Cab Co., 2 Ill2d 74, 117 NE2d 74 (1954), at page 83, Justice Maxwell said:

“Certain facts may exist which a jury of reasonable men would consider as determinative in leading to a conclusion of liability or nonliability, all according to the circumstances of the particular case.”

Also, in the Ney case, at page 84, the Supreme Court said:

“Questions of negligence, due care and proximate cause are ordinarily questions of fact for a jury to decide. The right of trial by jury is recognized in the Magna Charta, our Declaration of Independence and both our State and Federal constitutions. It is a fundamental right in our democratic judicial system. Questions which are composed of such qualities sufficient to cause reasonable men to arrive at different results should never be determined as matters of law. The debatable quality of issues such as negligence and proximate cause, the fact that fair-minded men might reach different conclusions, emphasize the appropriateness and necessity of leaving such questions to a fact-finding body. The jury is the tribunal under our legal system to decide that type of issue. To withdraw such questions from the jury is to usurp its function. Bailey v. Central Vermont Railway Co., 319 US 350.”

The trial judge in considering the questions raised by the motion for judgment notwithstanding the verdict denied it and said:

“So the question now is whether or not I can say that no reasonable mind could conclude other than that Solomone was negligent. In other words, whether or not that constitutes negligence as a matter of law. I don’t think it is for me under those circumstances to say what I would do if I were the finder of fact. I cannot say as a matter of law that these facts make him guilty of negligence.”

The evidence in this case presents a jury question upon which reasonable men might differ. The trial court erred in vacating the verdict and ordering a new trial. The issue of negligence and proximate cause were properly submitted to the jury and its verdict was within the manifest weight of the evidence.

Our decision above makes it unnecessary to consider plaintiff-respondent’s cross appeal. The trial court’s order granting a new trial as to all defendants is reversed and the judgment entered on the jury verdict is hereby reinstated.

Order granting a new trial reversed.

BURMAN, P. J. and MURPHY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ray Collins, Defendant-Appellant.
    Gen. No. 53,247.
    First District, First Division.
    June 15, 1970.
    Edward G. Thomson, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Joel M. Flaum and James B. Haddad, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Jimmie Lee Brown, a middle-aged man, employed as a security guard, was beaten and robbed on February 17, 1968, in the vicinity of 44th Street and Lake Park Avenue, Chicago. He reported that he had driven three men in his automobile, one of whom was the defendant, Ray Collins. They directed him to 4655 Lake Park Avenue, where he stopped. At this place, Brown claimed he was struck in the mouth and eye by the defendant, ordered to get out of his car and forced to walk through the alley.

On March 31, 1968, the defendant was arrested and charged with a felony, armed robbery, on the complaint of Brown who identified the defendant. The defendant resided about one-half block from the place of the alleged incident and had lived in that neighborhood for a number of years. His trial took place on May 2, 1968. Before commencement of the trial an additional charge of battery was filed against the defendant. The trial judge advised the defendant that he can ask for a continuance to retain private counsel and that if he was indigent the court would appoint the Public Defender to represent him. The defendant pleaded not guilty, waived trial by jury and answered that he was ready for trial. He was represented by the Public Defender. The State then nolle prossed the felony charge and the trial proceeded on the charge of battery on a misdemeanor.

He was found guilty and sentenced to serve six months in the House of Correction. The trial judge said:

“The Court will take in consideration that this matter was reduced from armed robbery to battery. The Court will also take in consideration that this man suffered a loss of a service pistol, $119, and he took a beating on top of it, all because he tried to be a kind man and give three boys a lift.”

Five days after the trial and the finding of guilty, defendant appeared before the trial judge represented by another counsel who now represents him on appeal, and filed a written motion for a new trial. In it defendant asked that the judgment of conviction be set aside and a new trial ordered. Defendant alleged the following:

(1) The finding was contrary to law and the evidence ;
(2) The State did not prove defendant guilty beyond a reasonable doubt;
(3) The trial court erred in refusing to permit evidence from the mother of the defendant that he was sick at home and not at the scene where the alleged crime took place;
(4) Defendant discovered additional evidence since the trial establishing his innocence. Supporting affidavits were attached;
(5) Defendant, being a poor person, was unable to investigate the case properly and as result thereof was denied the right to a fair trial; and
(6) The practice in the Public Defender’s office of not appealing convictions for misdemeanors is unconstitutional in that it denies the defendant equal protection of the laws guaranteed by the Constitution of the United States.

Counsel for the defendant, while making his motion for a new trial advised the court that the defendant was unable to investigate the case in his own behalf; that present in court and willing to testify was Dr. Scott who treated the defendant on the morning of February 17, the day of the alleged battery; that defendant’s mother and sister were present in court to testify that the defendant was home sick on February 17; that a local businessman and merchant, William Ramsey, who would testify that he did not see the defendant in the area where the crime was supposed to have taken place and that the complaining witness, Brown, didn’t know who it was who struck him; that shortly after Collins was arrested, Ramsey told Brown that he had involved the wrong person; that Brown offered money to a certain person if this person would identify or give information with respect to the alleged incident on February 17; and that the attorney who represented defendant at the trial offered to testify that the defendant had never had a hair process as claimed in the trial.

We are mindful of the fact that unnecessary delays in the trial of criminal cases should be avoided. We are, however, concerned about a trial in which a defendant is handicapped because of lack of time to prepare a defense. In this case, the defendant was arrested on March 31, 1968, and was tried on May 2, 1968, which was the first time the case was called for trial. The defendant was originally charged with a felony — armed robbery. The record does not show that there was any convincing testimony that the defendant committed this felony. On the day of the trial, the State filed an additional charge of battery on a misdemeanor and then nolled the felony charge. Although the trial judge advised the defendant that he did not have to go to trial if he did not want to, but that if he answered ready, he is asking the court to hear the testimony and dispose of the matter. The defendant, without consulting his attorney, told the court he is ready for trial.

The complaining witness testified that Collins struck him in the mouth and eye. Two detectives testified that he denied this. Detective Williams testified: “The description given at the arrest on the case report was of a second male negro (Collins) a male negro 22 years old, five-four, a hundred thirty pounds, dark complexion, and he had process hair.” The affidavit of Ray Collins subsequently included in the record on appeal, and dated June 11, 1968, stated that he was five feet, 6y% inches and approximately 175 lbs. in weight and never had a process. At the close of defendant’s testimony, his attorney said: “I hate the idea of calling myself as a witness, Your Honor, but I can testify from my own personal knowledge that on earlier occasions this man has always had his hair in this style, short and close cropped, and not a process.”

The defendant testified that he was at home sick on the day of the alleged battery of the complaining witness. Defendant named Dr. James Scott, who examined him. On May 7, 1968, when defendant’s new attorney presented a petition for a new trial, Dr. Scott was present in the courtroom to testify that defendant had been at home ill on February 17, 1968. In addition to Dr. Scott, William Ramsey, a local businessman and merchant in the area near the place where this occurrence took place, was also in court on May 7th to testify that the incident of February 17th, if it took place on Saturday, it occurred in the evening, not afternoon, and that he did not see the defendant in the area. Ramsey was to testify that Brown, the complaining witness, shortly after the incident, talked with Ramsey and said he did not know who it was who committed the offense charged. In addition, Ramsey was to testify that Brown told Ramsey at that time that he agreed with Ramsey that he might very well have the wrong person involved.

Defendant stated at the end of his testimony and after the trial judge found him guilty: “I want to say this. On the day this happened, I have proof that he (Brown) was around the tavern drunk, laid up all day. He was drunk the whole day.” The trial judge then said: “Sir, if you have proof, bring it in. Confer with the Public Defender and ask for a new trial if you can show me other proof.” The defendant did present a proper petition for a new trial five days later, which the court denied.

It appears to us that the petition for a new trial should have been allowed. The judgment of the trial court is reversed and this cause remanded to the trial court for a new trial.

Judgment reversed and remanded.

BURMAN, P. J. and MURPHY, J., concur.


author: MR. PRESIDING JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Gerald Magadanz (Impleaded), Defendant-Appellant.
    Gen. No. 53,884.
    First District, First Division.
    June 15, 1970.

      John L. White, of Chicago (Robert K. Kelty, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael Goldstein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

Gerald Magadanz and Fred Zimmerman were jointly indicted for the offenses of robbery and burglary. After a trial before the court without a jury, each was found guilty as charged. Zimmerman was sentenced to the time served while awaiting trial and placed on probation for a period of two years. Magadanz was given concurrent sentences of one to three years in the Illinois State Penitentiary. He alone brings this appeal.

The complaining witness, Harry Mich, who was seventy-one years of age, testified that on February 1, 1967, at 5:30 p. m., a man whom he later identified as Fred Zimmerman, rang his back doorbell and asked him where Passin lived. Mich told him Passin lived on the third floor. After a few minutes Zimmerman returned and after telling Mich that Passin was not at home asked if he would keep a package for Passin. When Mich opened the door, Zimmerman threw down his package, pushed Mich back into his apartment and told him not to cry out or look at them, saying, “All we want is your coins, you won’t get hurt.” Mich testified that another man whom he later identified as Gerald Magadanz, entered the apartment behind Zimmerman. He said he had never seen either of them before. They pushed him into the bedroom and began to tie him face down on the bed until he told them he had a bad heart and would black out. Zimmerman then told him that he could lie face up, but not to talk or look at them; Mich told them where his coin collection was and said he kept talking to them so that he could memorize their voices. During most of the time that they were in the apartment, they had scarves over their faces. The men were in the apartment for about twenty-five minutes before they took his coins and left.

Mich testified that each of the men was wearing a dark coat with a hood and a scarf. He said that he told the police that one of the men was S', 9" tall and the other taller and heavier. However, Officer Einwiller said that Mich told him on February 1st that the two offenders were S', 8" and weighed 170 pounds. Mich saw two photographs of Zimmerman at the police station a couple of days after the robbery. Several days after that, he was taken to the station where he identified Zimmerman, who was handcuffed to a chair in a room with many detectives. A few days later he again went to the station where he identified Magadanz, whom he saw in a room with men he said he assumed were detectives.

The complaining witness’ son, Howard Mich, testified that he had worked with Zimmerman in a television repair shop for six months. He also knew Magadanz, who occasionally visited the shop. Howard Mich had seen the defendants talking together in the shop. On one occasion Zimmerman asked him about his father’s coin collection while Magadanz and some other men were present. He had discussed his father’s collection on several other occasions when Zimmerman was present, but he was not sure if Magadanz was also present. He also testified that he saw Zimmerman one-half block from the scene of the crime shortly after the occurrence. When Zimmerman was arrested, a slip of paper was found in his possession “with notations on it describing certain coins similar to those that were taken from Mr. Mich.”

The defendant, Gerald Magadanz, denied any participation in the robbery. Fully supported by several witnesses, he testified that he was plowing snow in front of his house on February 1, 1967, from 5:30 p. m. to 7:30 p. m.

Because of our disposition of the case, it is only necessary to examine one of the defendant’s contentions. It is our duty to carefully review the evidence, and if it is not sufficient to remove all reasonable doubt of the guilt of the defendant and to create an abiding con-, viction that he is guilty, the conviction will be reversed. People v. Kidd, 410 Ill 271, 102 NE2d 141. We do not believe the evidence was sufficient to prove the defendant guilty beyond a reasonable doubt. The identification of the defendant by the complaining witness was weak, vague and unconvincing. Most of his testimony was about the defendant Zimmerman, whom he apparently had a greater opportunity to observe. He gave the same description of the two defendants and their clothing, although the defendants differed substantially in size and age. No description of Magadanz’s face was ever given. Mich testified that during most of the time the two men were in his apartment their faces were covered with scarves. He also said that he tried to memorize their voices from which we may reasonably infer that he could not see them very well. All in all, the identification of Magadanz was very weak.

The manner of identification at the police station three weeks after the robbery by means of a “show-up” instead of a “lineup” was highly suggestive and improper under the circumstances. The proper method would have been a lineup of similar persons unknown to the witness and without suggestions. Since we find no independent origin for the identification of Magadanz in court by the complaining witness other than the suggestive and unnecessary confrontation at the police station, this evidence was inadmissible under People v. Blumenshine, 42 Ill2d 508, 250 NE2d 152. There was no other evidence sufficient to convict Magadanz who had a strong alibi of the crimes charged. We therefore reverse his conviction.

Reversed.

MURPHY and ADESKO, JJ., concur.


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Herbert McKinney (Impleaded), Defendant-Appellant.
    Gen. No. 53,924.
    First District, Second Division.
    June 16, 1970.

      Ellis B. Rosenzweig, of Chicago (Wexler, Kane & Rosenzweig, 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 LYONS

delivered the opinion of the court.

In a trial by the court without a jury, the defendant, Herbert McKinney, was found guilty of burglary (Ill Rev Stats 1967, c 38, § 19-1(a)). Judgment was entered, motion for a new trial was denied, and, following a hearing in aggravation and mitigation, the defendant was sentenced to three to seven years in the State Penitentiary. In this appeal he contends that: (1) the indictment is defective in that it fails to allege the street address of the burglarized retail clothing store located in Chicago; (2) the record fails to show that the accused was advised of his right to a jury trial or that he waived that right; and (3) the State failed to prove, beyond a reasonable doubt, that the defendant intended to commit a theft when he entered the retail clothing store without authorization.

Testifying for the State were John Smith, manager of a Howard Clothes, Incorporated, retail clothing store in Chicago, and Sergeant Joseph Shaunnessey, one of the arresting officers. The defendant was the sole witness for the defense.

John Smith testified that at time of trial in October, 1968, he was the manager of a Howard Clothes store located at 6359 S. Halsted Street in Chicago but that on Friday, April 5, 1968, he was employed as the manager of a Howard Clothes retail store located at 3948 W. Madison Street in Chicago; that he closed the store at approximately 11:00 a. m. on that date; that he returned at 6:00 p. m. that evening, having been notified that the establishment had been burglarized, and spent one hour boarding up the store’s large rear window which was 4' x 6' and located off an alley. The window had been broken and entry made into the store. Smith returned again at 10:00 a. m. on the following day, Saturday, April 6, 1968, and saw that all of the merchandise was now missing. The store was completely looted. In conclusion, Smith stated that he did not give the defendant permission to be in the store at 4:00 p. m. on that Saturday; that he never saw the accused in the store on Saturday; and that entry into the store could have been accomplished through the large rear window which he had not boarded up on Saturday because there was hardly anything of value left in the store on that day. He estimated that the merchandise taken had a total value of approximately $400,000. Easter was approaching and the store, in anticipation, had a large inventory of clothes on hand. He also testified that when he left, sometime in the afternoon of Saturday, April 6,1968, the store contained only mannequins, a floor buffer, and some sewing machines which were all still there when Smith returned the following Monday.

The defendant was not present during the testimony of Mr. Smith although one of his co-indictees, Jimmie Scott, was present in the courtroom. Scott had earlier waived trial by jury and personally consented to be tried by the court. Smith’s testimony was offered against both the accused and Scott. The record reflects that the defendant was in the County Jail under the name of Dale McKinney, not Herbert McKinney, and this was the reason for his failure to appear in court on that one day.

After Smith had completed his testimony, the defendant’s trial counsel who represented both Scott and McKinney, informed the court that his client would be present in court on the date to which the cause was to be continued. Trial counsel also stated that he was going to stipulate that the testimony given by Smith was to be admissible against his client, McKinney, although the defendant was absent when Smith had testified. The only reference to the defendant’s waiver of a jury trial, however, was the following words spoken by his trial counsel, in the defendant’s absence, and when counsel was referring to his stipulation regarding Smith’s testimony: “He (the defendant) asked for a bench trial, and I think it is my prerogative to do this.”

When this non jury trial resumed twelve days later, the defendant was in the courtroom, and he personally agreed that Smith’s testimony could be used against him, although he was absent from the courtroom at the time Smith had testified. No inquiry was made, however, as to the waiver of a jury trial by the accused. The common-law record does not contain any written jury waiver form signed by the defendant, and the report of proceedings does not include any conversation between the trial court, the defendant, and his appointed counsel regarding waiver of a jury.

Sergeant Joseph Shaunnessey, one of the arresting officers and a member of the Chicago Police Department, testified that at approximately 4:00 p. m. on Saturday, April 6, 1968, he and his two partners were assigned to the area of Madison and Pulaski and were patrolling the alleys behind that business area when they noticed a broken window in the rear of the Howard clothing store located at 3948 West Madison Street. They saw that the protective window bars had been pulled off, and several people were in the store itself. He and his two partners climbed through the broken rear window, and he saw that there was no merchandise on the shelves. All the mannequins in the front windows had been stripped of their garments except one which was wearing a sweater or a shirt. He and his partners found the defendant inside the store, behind one of the counters, and between the counter and the wall. The accused was not standing up at the time of his arrest and he was not visible until the police almost walked on top of the counter. He was apprehended approximately fifteen feet from the front window. Officer Shaunnessey did not see the defendant with any property when he was arrested.

The defendant, Herbert McKinney, testified that he was forty-one years of age at the time of trial and lived with his mother on the Southeast side of Chicago. On Saturday, April 6, 1968, he had consumed a pint of gin during the afternoon hours and happened to be on the west side of Chicago visiting a woman by the name of Sandra Thornton who was working in a record shop at Pulaski and Adams. He was arrested inside the Howard clothing store but stated that he entered the premises, by walking through the open rear door, out of curiosity, as he saw a number of people in the alley and six or seven milling around in the empty store. He joined them out of curiosity and denied taking anything while in the store or having any such intention. He was inside the store for only two or three seconds before the police arrived. In conclusion, the accused stated that he had pleaded guilty to a burglary charge in 1953 and was released after serving two years in the penitentiary. According to his testimony, he was arrested while standing against a wall inside the store.

Initially, the defendant urges that the indictment is void because it fails to allege the street address of the retail store located in Chicago which was allegedly burglarized by the accused. This contention is based upon the testimony of Mr. Smith which indicated that Howard Clothes, Inc. had at least two retail stores in Chicago. The accused urges that the failure of the indictment to designate which store belonging to the corporation was involved in the case at bar resulted in his being deprived of his constitutional right to know the nature and cause of the accusation against him (Ill Const art 2, § 9) so that he could not fully prepare his defense and plead any judgment in bar of a subsequent prosecution for the same offense.

We note that the defendant did not bring the defect now complained of to the attention of the trial court by either a motion to dismiss the indictment [Ill Rev Stats 1967, c 38, § 114-1(a)] or by a motion in arrest of judgment [Ill Rev Stats 1967, c 38, § 116-2(a)]. The defect is raised for the first time in this reviewing court.

Defects in an indictment which are jurisdictional in nature may be raised for the first time in a court of review since no waiver by the defendant can give jurisdiction to the trial court. Among such jurisdictional defects would be the failure of an indictment, information or complaint to charge an offense [People v. Minto, 318 Ill 293, 149 NE 241 (1925); People v. Shaver, 367 Ill 339, 11 NE2d 400 (1937); and People v. Furman, 26 Ill2d 334, 186 NE2d 262 (1962)], or to allege venue [People v. Hill, 68 Ill App2d 369, 216 NE2d 212 (1966)]. The Illinois Code of Criminal Procedure has codified these judicial decisions. See Ill Rev Stats 1967, c 38, § 114-1(b). The issue presented to us, therefore, is whether the failure of the indictment to allege the street address of the burglarized retail store is a jurisdictional defect meaning that the defendant can raise this issue for the first time in a court of review.

In People v. Starr, 50 Ill App2d 399, 200 NE2d 118 (1964), and in People v. King, 50 Ill App2d 421, 200 NE2d 411 (1964), it was held that such a defect in a burglary indictment is not jurisdictional so that the failure of the defendant to file and argue, in the trial court, a motion to dismiss the indictment resulted in the waiver of the contention for purposes of appeal. This rule was followed in the later case of People v. Bremer, 57 Ill App2d 436, 440-41, 206 NE2d 795 (1965), which held that such a defect in an indictment is only a mere irregularity and not jurisdictional, and in People v. Headrick, 65 Ill App2d 169, 212 NE2d 102 (1965).

We follow the reasoning of these cases and hold that the defendant waived his initial contention for purposes of appeal when he failed to bring it to the attention of the trial court. Our conclusion is not altered by the fact that, in the case at bar, testimony indicated that Howard Clothes, Inc. had at least two stores in Chicago, but the indictment failed to designate which store belonging to the corporation was involved in the instant prosecution. The defendant was not prejudiced by this omission since he proceeded to trial and presented his defense on the merits, indicating that he knew he was accused of burglarizing the West Madison Street store. Furthermore, the defendant is in no danger of double jeopardy since the address of the burglarized premises is contained in the record which may be introduced as evidence in any subsequent prosecution for the same offense. See People v. King, 50 Ill App2d 421, 200 NE2d 411 (1964), and the cases cited therein.

We do agree, however, with the defendant’s second contention that he was not advised regarding his right to a jury trial and therefore never under standingly waived this personal privilege in open court as required by the Illinois Code of Criminal Procedure [Ill Rev Stats 1967, c 38, § 103-6]. A duty is imposed upon the trial court to see that such a waiver is expressly and understandingly made, which judicial responsibility is not to be perfunctorily discharged. People v. Fisher, 340 Ill 250, 265, 172 NE 722, 728 (1930); People v. Surgeon, 15 Ill2d 236,154 NE2d 253 (1958).

The instant record reveals that the defendant’s co-indictee, Scott, properly waived his right to a jury trial in open court but that no questions were directed at McKinney or his appointed counsel at this time because McKinney was absent from the courtroom. Twelve days later, when this non jury trial continued, McKinney was present in court, but he was not advised of his right to be tried by a jury. The common law record contains no jury waiver form signed by the defendant, and the report of proceedings contains no colloquy between the court and McKinney’s appointed counsel, conducted in the presence of the accused, or between the court and the defendant personally concerning waiver of a jury. The only reference to a bench trial for McKinney occurred when he was not present in court and his counsel stated, in reference to a stipulation regarding Smith’s testimony, that he thought he could so stipulate for McKinney since the latter wanted a bench trial. With the exception of this statement by his counsel, the record is entirely silent as to any waiver of a jury trial by McKinney.

The State contends that in People v. Sailor, 43 Ill2d 256, 253 NE2d 397 (1969), the Illinois Supreme Court held that when defense counsel states that his client wishes to waive his right to a jury trial, the trial court is entitled to rely upon the professional responsibility of the attorney to protect the best interests of his client. They contend that defendant’s presence or absence in open court when the jury waiver is made for him by his counsel, if it is handled in this way, is therefore immaterial. As we read Sailor, the presence of the accused in open court and the fact that she remained mute and did not object when her counsel, in that case, waived her right to be tried by a jury represent the very crux of the holding that she had understandingly waived such a right. She was said to have spoken and acted through her agent — her attorney. The court made it quite clear that the accused is bound, on the theory of agency, by the acts of his counsel done in his presence in open court and to which the defendant does not object.

We do not feel constrained to extend or expand Sailor to the extent requested by the State. In the instant case, the purported waiver of a jury by counsel for McKinney was not made in his presence and therefore People v. Sailor, 43 Ill2d 256, 253 NE2d 397 (1969), is not controlling. Waiver of the right to be tried by a jury cannot be presumed from a silent record. Boykin v. Alabama, 395 US 238, 243, 23 L Ed2d 274, 89 S Ct 1709 (1969). See too People v. Cowart, 51 Ill App2d 388, 201 NE2d 153 (1964), where a conviction was reversed because the record failed to affirmatively show that the defendant had expressly and understandingly waived his right to a trial by jury, and People v. Rambo, App Ct No. 53712 (opinion filed April 16, 1970), where a murder conviction was reversed and the cause remanded because the defendant was not advised of his right to a jury trial. In our opinion, the instant record is silent in this regard and hence the judgment must be reversed and the cause remanded for a new trial.

Since the defendant must be tried again, we refrain from expressing any opinion regarding the defendant’s guilt or innocence and find it unnecessary to analyze the evidence relating to the defendant’s contention that the prosecution failed to prove criminal intent beyond a reasonable doubt. People v. Ruffin, 406 Ill 437, 442, 94 NE2d 433, 436 (1950); People v. McCarthy, 313 Ill 303, 312, 145 NE 133, 137 (1924); People v. Schwartz, 3 Ill2d 520, 121 NE2d 758 (1954); and People v. Cook, 33 Ill2d 363, 371, 211 NE2d 374, 378 (1965).

Judgment reversed and cause remanded.

McCORMICK, P. J., and BURKE, J., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Steve Willis, Defendant-Appellant.
    Gen. No. 52,400.
    First District, Third Division.
    June 18, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer 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 Robert McGee, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

Steve Willis was tried by a jury for armed robbery, convicted and sentenced to a term of four to six years in the penitentiary. He contends that his identification was so weak as to raise a reasonable doubt of Ms guilt and that it was the product of suggestive out-of-court identification procedures. He also argues that the prosecution improperly informed the jury of his prior criminal record.

Three young men robbed a Chicago grocery store owned by Pablo and Andrea Rivera on August 31, 1966, at about 1:00 p. m. Mrs. Rivera was near the door when the three entered. Two of them, the one identified as Willis and Paul Scott (who subsequently pleaded guilty to the crime), had guns in their hands. Scott announced, “This is a stickup, give me your money. If you don’t I will kill you.” Scott took $12 from behind the counter and placed it in a bag. The other two went over to Rivera who was about twelve feet away. Willis threatened, “Don’t move from here or I will kill you.” When Rivera moved, Willis fired his gun, hitting three cans of fruit. He held the gun on Rivera with his right hand and with his left opened the cash register and took about $115. He also took Rivera’s wallet. The robbers then locked the Riveras in a washroom. The entire robbery took less than five minutes.

Mrs. Rivera testified that she had seen Willis, whose name she did not know, in the store a few times; she had seen Scott many times. Rivera knew Willis by sight because of his coming into the store on three occasions; on one of these occasions — the day before the robbery — he had asked about Rivera’s son. The third participant was not recognized and was never identified.

Mrs. Rivera testified that two days after the robbery she was shown a large number of pictures at police headquarters and that she picked out those of Scott and Willis. After they were arrested for the robbery she identified them in police lineups. Rivera testified that he did not see any photographs, but he did view a lineup. While he could not identify anyone in the lineup, he recalled that his wife had picked out Scott.

Willis and Scott and three other men were arrested for an unrelated matter on September 2, 1966. A gun, identified at the trial by Rivera as the one Willis used in the robbery, was found in the automobile in which they were riding. A comparison test was attempted to see if the gun fired the bullet recovered from the Rivera store, but the bullet was so damaged that the test was impossible. The record does not show whether Willis and Scott were taken into custody on September 2nd and if they were how long they were held. That they were later released is clear from the fact that Scott was arrested for the Rivera robbery on October 19,1966, and Willis sometime later.

Scott confessed to the crime. In a written statement he said that he was forced to take part in the robbery. The names of the men who were with him were not mentioned in the statement. Scott pleaded guilty and testified for his friend Willis. He denied that Willis was one of the robbers. He admitted being in the Rivera store many times and related the details of the robbery. He said that he and two others, whose names he did not know, planned the robbery in the morning but waited until 1:00 p. m., so that each one could get a gun. He said he was the one who fired the shot and that the gun found in the automobile at the time he and Willis were arrested on September 2nd was his. He admitted that his written statement was made voluntarily, that everything contained in it was exactly what he had told the police officers; he also admitted that he spoke to the officers after having signed the statement. He denied telling them in this conversation that Willis was one of the robbers but that they would never get him to admit this in court. He volunteered, however, that he followed a neighborhood code of never involving another in a crime. He also stated that he would probably lie to protect Willis.

Two police officers rebutted Scott’s testimony. They said that after he signed the written statement he told them that he was not forced into the robbery, that Willis was one of the robbers but then said, “You will never get me to say that in court.” He also told them that the robbery was Willis’ idea and that the third robber was a friend of Willis’, whose name he did not know.

Willis did not testify but two witnesses, in addition to Scott, testified in his behalf. One of these, a mother of twelve children, testified that Willis had been with her throughout the day of August 31st assisting her in making funeral arrangements for a son, a close friend of Willis’, who had died August 26th. She said that he accompanied her to a florist about noontime and to a funeral home where they stayed until 1:30 or 2:00 p. m. The director of the funeral home testified that they were there on August 31st somewhere between the hours of 11:00 and 1:00 p. m. A business record of the financial arrangements for the funeral, dated August 31, 1966, was introduced into evidence.

It is argued that the failure of Pablo Rivera to identify Willis at the lineup casts doubt on his identification. This argument assumes that Willis was in the lineup. There is no testimony to this effect. Mrs. Rivera testified that she attended more than one lineup and that she picked Willis out in one of them. There was no testimony that her husband was present at that time. There was some confusion in the Riveras’ testimony about photographs, lineups, police station appearances, court appearances and dates. Part of the confusion may have come about because of the different dates Scott and Willis were arrested for the robbery. A police report indicated that the Riveras were shown a group of pictures, which included one of Scott but not of Willis, the day of the robbery. Scott was identified and a warrant was taken out for his arrest. Upon Scott's arrest on October 19, 1966, lineups were held. On October 26, 1966, pictures, including one of Willis, were shown to Mrs. Rivera. Mrs. Rivera identified Willis’ picture and also picked out a picture which she thought looked like the third robber. However, when she saw him in person she was not sure and he was not prosecuted. The lack of clearness in the Riveras’ testimony came about not only because of the fact that the identification of Scott’s and Willis’ pictures occurred on different days and their lineup identifications occurred on different days, but also because of language difficulties. Rivera testified through interpreters and Mrs. Rivera spoke Spanish and did not communicate with ease in English. Some of her speech was broken, she was unfamiliar with police procedures and she was confused by some of the questions she was asked. But both she and her husband were positive and unshaken in their identification of the defendant Willis.

Willis points out the following factors pertaining to his identification which, he argues, make his identification uncertain and doubtful: (1) a report by an investigating officer that Scott fired the gun at Pablo Rivera, whereas both Riveras testified at trial that Willis fired the gun; (2) Mrs. Rivera’s only description of the robbers was that they had dark skin; she gave no other physical characteristics and Rivera gave none at all; (3) neither of the Riveras said that they had seen Willis before; (4) Mrs. Rivera did not describe Willis’ clothing, but she did that of Scott; (5) Rivera failed to note Scott’s presence during the robbery, and (6) Andrea and Pablo Rivera testified that Willis was about 5 feet, 6 inches tall, whereas his height is 5 feet, 10 inches.

As to points (1) and (2), the investigating officer’s report was a collection of information gathered from many sources; it did not pretend to accurately reflect each witness’ individual statement. As to point (3), the Riveras did tell an investigating officer that Willis and Scott were known to them. As to points (4) and (5), Scott was the robber close to Mrs. Rivera and it was he who took $12 from her custody; Willis was the man who robbed Rivera. Mrs. Rivera was concentrating on Scott, her husband on Willis. As to point (6), the record shows that the Riveras had difficulty in estimating heights. After having testified that Willis was 5 feet, 6 inches, Pablo Rivera was asked on cross-examination to look at Willis and estimate his height. Rivera said that he did not know how to tell his height, and that he could not say whether Willis was more or less than 5 feet, 6 inches. On her cross-examination Mrs. Rivera was asked to estimate the height of Paul Scott, whom she had identified as one of the robbers. She responded between five and six feet, and it was only on further questioning that she said he was about the height of defense counsel, about 5 feet, 10 inches.

Some of the factors cited by the defendant are relevant in ascertaining the accuracy of his identification, but they are not necessarily determinative. Slight discrepancies do not destroy the credibility of eyewitnesses but only go to the weight to be given their testimony. People v. Parker, 98 Ill App2d 146, 240 NE2d 475 (1968). The minor discrepancies in the Riveras’ testimony and the variations between their testimony and the investigating officers about the dates they attended lineups and the number of times they were shown photographs, are inconsequential in comparison to their previous acquaintance with Willis, the excellent opportunity they had to view him during the robbery and their unwavering identifications before and at the trial. Their identifications were based on his face, not on his other physical characteristics or clothing. It is the province of the jury to determine the credibility of all witnesses and the weight to be given their testimony, and its verdict will not be reversed unless the evidence is so unsatisfactory as to leave a reasonable doubt of the defendant’s guilt. The jury weighed the Riveras’ testimony against that of the defendant’s witnesses and determined that he was guilty. The evidence supported the jury’s verdict.

The defendant’s final two contentions concern the use of his picture. First, it is argued that Mrs. Rivera’s selection of his picture was influenced by a police officer and, second, that his picture was improperly used at the trial. Mrs. Rivera testified that, as she was looking at photographs, an officer told her that Willis was in custody. Although such a comment would be improper it did not, under the facts of this case, tend to induce a misidentification. At the trial Mrs. Rivera was shown a picture of Willis which she said was the one she had picked out at the police station. A police officer also identified the picture. Willis argues that this indicated to the jury that he had a criminal record. The picture was not admitted into evidence and there is no indication in the record that it bore suggestive legends or numbers, or that it was shown to the jury. The jury received no improper information and the defendant was not prejudiced by the trial procedure.

The judgment is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


author: MR. JUSTICE McNAMARA

text:
    David T. Compton and State Farm Insurance Companies, as Subrogee of David T. Compton, Plaintiffs-Appellants, v. Paul E. Frank, Defendant-Appellee.
    Gen. No. 53,192.
    First District, Third Division.
    June 18, 1970.
    Dudley R. Sullivan, of Chicago (John J. O’Connor, of counsel), for appellants.

      Paulson & Ketchum, of Chicago (Samuel C. Morris, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Plaintiff David Compton brought an action against defendant for personal injuries arising out of a collision between two automobiles. Plaintiff insurance company as Compton’s subrogee, brought an action against defendant for property damages arising out of the accident, and the causes were consolidated. Defendant died subsequent to the filing of the lawsuits, and the administrator of his estate was substituted in his stead. The trial court granted defendant’s motion for a directed jury verdict at the close of plaintiffs’ case, entered judgment on the verdict and plaintiffs appeal.

Because of defendant’s death, the Dead Man’s Act, Ill Rev Stats 1961, c 51, § 2, was applied in the instant case. That Act with certain enumerated exceptions renders a party or interested person an incompetent witness when he is suing or defending against a party who is protected under the Act. Consequently Compton was incompetent to testify as to the facts of the accident. There were no other eyewitnesses to the accident.

At trial, an Illinois State trooper testified that at about 8:00 a. m. on August 30,1962, he investigated an accident which occurred on Route 53, a rural road. Then photographs of Route 53 at the area of the accident scene were introduced by plaintiff. Thereafter the trial court, over defendant’s objections, permitted plaintiffs to read into evidence portions of a discovery deposition made by defendant’s decedent, on the theory that these statements made at the discovery deposition constituted clear and positive admissions by defendant’s decedent. Following that, defendant, over objections of plaintiffs, read other portions of the same discovery deposition into evidence. Plaintiffs then requested that plaintiff Compton be permitted to testify in rebuttal to those statements which had been read into evidence by counsel for the defense. The trial court refused to allow Compton to testify in rebuttal; plaintiffs rested; and the directed verdict followed.

Plaintiffs appeal, contending that the trial court erred in granting defendant’s motion for a directed verdict; that it erred in allowing certain statements of defendant’s decedent to be introduced by the defense; and that it erred in refusing to allow Compton to testify in rebuttal to those statements. While urging affirmance of the judgment, defendant argues in this court that the trial court erred in allowing plaintiffs to read into evidence parts of the discovery deposition of defendant’s decedent without defendant having first introduced the deposition or any of its parts into evidence.

Because of our view of the proceedings, we deem it unnecessary to consider most of the points on appeal urged by both sides. We find that the trial court properly directed a verdict and entered judgment thereon in favor of defendant, because, even assuming that all of the testimony adduced at trial by plaintiffs was properly admitted, plaintiffs failed to sustain their burden of proving that Compton exercised due care in the operation of the vehicle. Thus it is not necessary that we determine the propriety of the trial court’s rulings as to the admissibility of portions of decedent’s discovery deposition. The portions of deceased’s discovery deposition which were read into evidence by plaintiffs were as follows.

On August 30, 1962, decedent was driving to work on Route 53, a two-lane road. He was driving south, and intended to make a left turn into a private driveway which led to his place of employment. He was approximately one hundred fifty feet north of the driveway and travelling at a speed of about twenty-five miles per hour when he first noticed the vehicle operated by Compton in his rear-view mirror. Compton’s vehicle was about one hundred feet behind him, and starting to enter the east lane. Decedent did not notice Compton’s vehicle again until the impact. As decedent made the turn, he noticed a slight touching of the left front fender of his vehicle with the right side of Compton’s vehicle. Compton’s vehicle then swerved off the road and struck a tree. The first touching of the vehicles occurred on the private driveway, about three or four feet east of the road.

Defense counsel then read into evidence certain other statements made by decedent at the discovery deposition. There were “NO PASSING” signs on the road in question, and decedent’s turn signal was turned on when he was four hundred feet north of the driveway.

Plaintiffs made an offer of proof that if Compton were permitted to testify in rebuttal, he would state that decedent’s turn signal was not on and would deny that the area of the accident was a no-passing zone.

In a negligence action plaintiff has the burden of establishing that he was in the exercise of due care for his own safety and free from contributory negligence. Plaintiff’s exercise of due care need not be established by direct testimony, but may be proved by circumstantial evidence. And due care may be inferred from all the facts and circumstances shown to exist prior to and at the time of the collision. Devine v. Delano, 272 Ill 166, 111 NE 742 (1916). However, due care cannot be established by speculation and conjecture, and where plaintiff is unable to show due care by direct proof he must disclose facts from which it may reasonably be inferred. Graham v. Dressen, 292 Ill App 15, 10 NE2d 843 (1937). As was aptly stated in Coulson v. Discerns, 329 Ill App 28, 66 NE2d 728 (1946), at p 32:

“A fact cannot be established by circumstantial evidence unless the circumstances are of a nature and so related to each other that it is the only conclusion that can be drawn therefrom, and mere conjecture, guess or suspicion is insufficient.”

In the case at bar, we find that plaintiffs have failed to present any evidence of Compton’s exercise of due care. There was no evidence as to the speed of Compton’s automobile, or whether he slowed down upon observation of decedent’s automobile. In fact, there was a complete lack of evidence as to what action Compton took or what he observed. Under these circumstances, an inference of due care on Compton’s part would be at most conjecture. As stated by the trial judge, it would be necessary to presume due care on the part of Compton since there was no evidence proving the exercise of due care.

Cases cited by plaintiffs in support of their proposition that they made a prima facie showing of due care, are distinguishable from the instant case. In Klatt v. Commonwealth Edison Co., 33 Ill2d 481, 211 NE2d 720 (1965), the court held that where plaintiff could not recall any circumstances of the accident, but there was evidence presented that she was riding in the right front seat of the automobile prior to the accident, it was for the jury to determine in a guest case whether plaintiff was free from contributory wilful and wanton misconduct. Illinois Transit Lines v. Packer City, etc., 9 Ill App2d 161, 132 NE2d 433 (1956), concerned direct testimony on the issue of whether plaintiff was guilty of contributory negligence as a matter of law. In Fahrforth v. Kwiatkowski, 79 Ill App2d 300, 224 NE2d 641 (1967), the court, in a case in which plaintiff was rendered an incompetent witness by the subsequent death of defendant, found an inference of due care on the part of plaintiff in an accident which occurred while defendant’s car was following plaintiff’s car. The evidence revealed that plaintiff was struck from behind after defendant had applied his brakes and his car skidded 130 feet before catching and striking plaintiff’s car. While no evidence of the speed of defendant’s car was offered, the court held that such evidence would be of little importance, since not only did his car skid 130 feet, but impact with plaintiff’s car did not even stop defendant’s car which continued on for more than 50 feet crossing two lanes of traffic and tearing out 10 feet of guardrail before stopping. No such facts are present in the instant case, and we believe that no inference of due care was established.

We find no merit in plaintiff’s argument that defendant has waived the issue of due care by not arguing it in his brief. Defendant specifically contended in his brief that the trial court properly allowed his motion for a directed jury verdict because of plaintiffs’ failure to establish negligence on the part of defendant and to establish due care on the part of Compton.

Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

DEMPSEY, P. J., and SCHWARTZ, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Louis Pirovolos, Defendant-Appellant.
    Gen. No. 53,288.
    First District, Third Division.
    June 18, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (H. A. Cowen, N. 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 Kenneth Gillis, Assistant State’s Attorneys, of counsel), for appellee.
   Supplemental Opinion

MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant Louis Pirovolos was charged with the crime of murder. After a bench trial, he was found guilty of voluntary manslaughter and sentenced to a term of 2 to 14 years. On appeal, this court rejected defendant’s contention that he was not proved guilty beyond a reasonable doubt. We also refused to reduce the sentence imposed, and affirmed the judgment of the Circuit Court. People v. Pirovolos, 116 Ill App2d 73, 253 NE2d 481 (1969). The facts are fully set out in that opinion. Defendant then petitioned the Illinois Supreme Court for leave to appeal. While that petition was pending, defendant sought leave of the Supreme Court to file an additional portion of the record, described as a “newly discovered, heretofore missing, supplemental” record. The Supreme Court entered an order allowing defendant to appeal, vacated the judgment of this court, permitted defendant to file the supplemental record and remanded the cause to this court for reconsideration in light of that supplemental record, which had not been before this court on the original appeal. The pleadings are silent as to why the supplemental record had not been filed with this court in the original appeal.

The supplemental record consisted of a transcript of the proceedings at a hearing before the trial judge on defendant’s motion for a new trial. Defendant had filed a petition for a new trial on the basis of newly discovered evidence, stating that he had located an eyewitness to the incident who had not testified at trial. Defense counsel represented that the witness in question had been located by defendant’s wife after the trial had been completed. On the State’s list of witnesses, the new witness was listed only by his first name, Vince. The police had furnished the first name to the State’s Attorney, but had given no full name or any address. It was also noted that one of the witnesses, Larry Airdo, had testified at trial that a trainee by the name of Vince was present at the altercation. During the hearing on the petition for new trial, the additional witness was sworn in and examined.

Vincent Durand testified that he was employed at the theatre in question on January 21, 1967, the date of the occurrence. He saw both the deceased and defendant on that day. Both men were strangers to the witness, but he had seen them at the theatre. He heard the two men arguing, but did not know how the argument began. When Durand turned around, he saw that both men were armed with knives. Deceased was holding the back of a chair, and defendant had a stool. Durand testified further that deceased “came at” defendant with a knife, and defendant blocked the blow. Defendant swung his knife, and the deceased went down. The witness stated that he was present when the police arrived, but no one asked for his name.

After the State argued that Airdo had given exactly the same testimony at trial as that offered by Durand and also that there had been no showing of diligence on the part of the defense in locating Durand, the trial court denied the motion for a new trial.

In light of the order of the Supreme Court remanding the cause to us to consider the supplemental record, we find that the trial court erred in denying the motion for a new trial. In our original opinion, we noted that Airdo’s testimony did not indicate that the deceased used the knife or that he intended to use it in the altercation. However, the testimony of Durand was that the deceased did, in fact, swing at defendant with the knife, and that defendant then returned the blow. Thus it was inaccurate for the State to argue that Durand’s testimony was exactly the same as had been given by Airdo at trial. Defendant’s theory was that he was acting in self-defense. The additional testimony of Du-rand was corroborative of that given by defendant, and could have changed the result of the trial. See People v. Upshaw, 58 Ill App2d 256, 207 NE2d 728 (1965). Consequently, we believe that the interests of justice demand that we remand the cause for a new trial.

Judgment reversed and cause remanded.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Richard J. Bellecourt (True Name, Ronald John Bellecourt), Defendant-Appellant.
    Gen. No. 53,297.
    First District, Third Division.
    June 18, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James N. Gramenos, Assistant Public Defender, 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 SCHWARTZ

delivered the opinion of the court.

In a trial without a jury the defendant was convicted of the sale of a narcotic drug in violation of the statute (Ill Rev Stats, c 38, § 22-3 (1969)). After a hearing in aggravation and mitigation, the court imposed a sentence of ten years to ten years and one day in the Illinois State Penitentiary. We have concluded that the State failed to prove guilt beyond a reasonable doubt and there is no need to consider another point made by the defendant questioning the propriety of the jury waiver. A summary of the evidence follows.

On January 17, 1968, the defendant was arrested for the unlawful sale of marijuana. The State’s principal witness was John Peoples, the arresting police officer. He testified that on January 15, 1968, he was working as an undercover narcotics agent and was sitting in the B-29 Tavern on North Clark Street in Chicago. From that point on, his testimony given at the trial conflicts both with his testimony before the Grand Jury and with a police report which, although typed by another officer, was prepared on the basis of information supplied by Peoples.

On the trial Peoples testified that the defendant, who said his name was Rich, approached him while he was in the tavern. That statement is consistent with the police report which was filed, but is in direct conflict with Peoples’ testimony before the Grand Jury. The version he gave the Grand Jury was that upon overhearing a conversation about marijuana, he approached the defendant and started to talk to him.

A second contradiction in Peoples’ testimony relates to his testimony at the trial that after he told the defendant he was interested in making a ten-dollar purchase, defendant left the table to converse with a man at the rear of the tavern. Before the Grand Jury however, Peoples testified that it was not until after defendant returned from the conversation with the other man that the price of ten dollars was discussed. Still another account by Peoples of that phase of the transaction appears in the police report. There Peoples stated that he gave Rich, the defendant, ten dollars before Rich left to talk to the man at the back of the tavern. Peoples testified at the trial that the police report was correct, except that he received the tinfoil packet before he paid the defendant any money.

A third discrepancy relates to Peoples’ testimony that when the defendant returned to the table, he asked Peoples to follow him into the bathroom and that while they were alone, defendant handed him a tinfoil packet and was given the ten dollar bill. Before the Grand Jury Peoples testified that he gave the money to the defendant when he returned to the table after his conversation with the man at the rear of the tavern and that they then went to the back of the tavern, where defendant gave him a brown envelope containing crushed green plant. The police report states that after he was given ten dollars at the table, the defendant left to talk with the other man and upon returning, gave Peoples a tinfoil packet.

Police Officer Bernard Brown testified that he typed the police report as the facts were related to him by Peoples. He also testified that he received a tinfoil packet from Peoples on the night of January 15, 1968, which he initialed and sent to the Police Crime Laboratory. The State introduced a tinfoil packet bearing Officer Brown’s initials. It was stipulated that it contained 6.5 grams of marijuana.

The defendant testified in his own behalf. He stated that he was 24 years old and had no prior arrests. He first saw Officer Peoples on January 17, 1968. On that date Peoples, dressed in plain clothes, entered the B-29 Tavern and asked defendant to step outside. When they were outside, Peoples showed his badge and told defendant to get into a car. The defendant testified that Peoples asked him to cooperate in apprehending persons who traffic in narcotics in the Clark Street area. When defendant denied knowledge of such activity, he was taken to Police Headquarters where Peoples informed him that he was under arrest. Defendant denied ever having sold marijuana. He also denied that his name was Rich or that any one ever called him Rich. He gave his name as Ronald John Bellecourt.

The conflicts in the testimony of the State’s principal witness as to who initiated the conversation about marijuana, whether the sale took place at the table or at the rear of the tavern or in the bathroom, whether the money was paid before or after receiving the marijuana and whether Peoples received a tinfoil packet or a brown envelope in exchange for the ten dollars create a reasonable doubt as to the defendant’s guilt.

In People v. Quintana, 91 Ill App2d 95, 234 NE2d 406, this court reversed a conviction for possession of narcotics which was based exclusively on the unconvincing testimony of the arresting police officer. The court said (p 99):

“We do not know whether the defendant is or is not a user of marijuana or is engaged in its sale, but we do know that in this case the testimony of the police officer is suspect and that his uncorroborated testimony is insufficient to prove the defendant guilty beyond a reasonable doubt.”

We have reached the same conclusion in the case before us. The State has failed to prove the guilt of the defendant beyond a reasonable doubt and his conviction is accordingly reversed.

Judgment reversed.

DEMPSEY, P. J. and McNAMARA, J., concur.


text:
    Esther M. Engstrom, Plaintiff-Appellant, v. Irving Edgar, d/b/a Edgar Funeral Home, Defendant-Appellee.
    Gen. No. 53,407.
    First District, Third Division.
    June 18, 1970.

      Henry A. Gentile, of Blue Island, for appellant.
    Baker & McKenzie and Beutler, Blake & Poris, of Chicago (Albert W. Beutler, Francis D. Morrissey, and Thomas R. Nelson, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal from a judgment for the defendant entered on a directed verdict at the close of plaintiff’s case. The only questions presented to this court relate to the application of section 2 of the Evidence Act, commonly referred to as the Dead Man’s Act (Ill Rev Stats, c 51, § 2 (1969)). Plaintiff contends that the trial court erred in its holding that section 2 of the Evidence Act bars the testimony of the plaintiff and her husband as to events which preceded the death of Irving Edgar. This contention is based on the following arguments: (1) that the estate of the deceased would not be affected by an adverse judgment, (2) that the administratrix of the decedent’s estate was not defending against plaintiff’s claim, and (3) that defendant’s testimony, had he lived, would not have been relevant to the occurrence upon which plaintiff’s cause of action rests. The facts follow.

On May 25, 1961, the plaintiff allegedly sustained personal injuries when she fell while attempting to sit in a chair provided for visitors at the Edgar Funeral Home. A lawsuit was commenced alleging negligence on the part of the defendant Irving Edgar, owner of the Edgar Funeral Home. On June 13, 1963, the defendant was killed in a plane crash. On May 10, 1968, his death having been duly suggested, the court by agreement of the parties appointed Ruth Edgar, defendant’s wife, as administratrix of his estate. When the case came on for trial the plaintiff and her husband were presented as witnesses. The court sustained an objection to their testimony on the ground that it was barred by section 2 of the Evidence Act. No other evidence being presented, a verdict was directed for the defendant. Section 2 of the Evidence Act provides:

“No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as . . . administrator ... of any deceased person, . . . .”

Plaintiff contends that the provision herein-before set forth does not apply to the facts of the instant case because the suit filed was against the funeral home which “the decedent only happened to own,” and was not a suit involving the decedent’s estate. To argue that Edgar only happened to own the funeral home is to say no more than that he was the real party in interest. The defendant in a civil suit must be either a natural or an artificial person. The funeral home was owned by Edgar and the suit must proceed if at all, against Edgar or upon his death, against his personal representative. It is difficult to understand plaintiff’s argument that the decedent’s estate is not involved in this suit. If plaintiff’s claim were established, the estate of Irving Edgar would be liable. A deeper involvement is difficult to imagine. That the estate would not be depleted because an insurer would pay the judgment, as plaintiff orally argued to this court, does not affect the applicability of section 2 of the Evidence Act. Garb v. Harris, 87 Ill App2d 437, 232 NE2d 83.

Plaintiff’s second contention is that the Dead Man’s Act is not applicable because the administratrix was not defending. This also is difficult to understand. If plaintiff means to imply that an insurer has undertaken the defense, she should say so, but even if properly pressed, it would not be a sound point. Rosengren v. Manufacturers Nat. Bank, 220 Ill App 608, which plaintiff cites in support of her contention was a replevin action in which the executor of the testate decedent was not a party to the litigation. The language of the statute disqualifies adverse parties and interested persons from testifying in their own behalf when the administrator of a deceased person “defends” in that capacity. In the instant case the administratrix was a party to the suit and was defending against plaintiff’s claim in her capacity of administratrix. The statute is clearly applicable.

Finally plaintiff contends that the defendant could not have offered relevant testimony on the question of negligence and that, therefore, there is no need to invoke the statute in order to protect his estate against his inability to relate an alternate version of the incident. What defendant might actually have testified to in response to the allegations in plaintiff’s complaint is pure speculation. Considering the many cases in which the statute has been used, it is not at all unlikely that in some instances it has been invoked to disqualify witnesses where, had the adverse party been living, liability would have been admitted. These are contingencies, however, which we must assume the legislature recognized when the act was under consideration. The statutory bar is absolute when an adverse party “sues or defends” in one of the enumerated capacities and there is no leeway provided in which courts may restrict its plain import under the guise of statutory construction. It is our duty to give the statute a fair and reasonable meaning and not, by a process of indirect attenuation, repeal or partially repeal it. Pink v. Dempsey, 350 Ill App 405, 113 NE2d 334. We conclude that plaintiff, as a party, and her husband, as an interested witness adverse to the administratrix, are precluded by statute from testifying to any events which preceded the death of the defendant.

The judgment is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and McNAMARA, J., concur.