author: MR. JUSTICE SCHWARTZ

text:
    Estate of Grace Schollmeyer, Incompetent. Parker F. McMahan, Jr., Conservator, Respondent-Appellant, v. Norval J. Burnside, Petitioner-Appellee, Isabelle E. Shell, Successor-Guardian.
    Gen. No. 53,353.
    First District, Third Division.
    January 29, 1970.

      Brown, Stine, Cook & Hanson, of Chicago, for appellant.
    Friedman, Koven, Salzman, Koenigsberg, Specks & Homer, of Chicago (Joseph A. Spitalli, of counsel), and Bryan, Cave, McPheeters & McRoberts, of St. Louis, Missouri (Jerome M. Rubenstein, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court directing Parker McMahan, Jr., Illinois conservator of the estate of Grace Schollmeyer, to deliver the assets of his ward’s estate to her brother Norval Burnside, appointed guardian of the person and estate of Grace Schollmeyer by the Probate Court of St. Louis, Missouri. The propriety of that order rests on the adequacy of Burnside’s petition filed pursuant to section 264 of the Probate Act (Ill Rev Stats, c 3, § 264 (1967)) and a stipulation of facts upon which the order in question was entered. The act provides as follows:

“When it appears to the court of any county of this State in which a guardian or conservator of the estate of a non-resident ward is appointed that the removal of the ward’s estate will not conflict with the interest of the ward, the terms of limitation attending the right by which the ward owns the estate, or the rights of creditors, the court may order the resident guardian or conservator to pay and deliver to the non-resident guardian or conservator the whole or any part of the ward’s estate. . . .”

Respondent-appellant contends that the petition should not have been granted because (1) Grace Schollmeyer, incompetent, was not a “non-resident ward” within the meaning of the statute under which the petition was filed, and (2) the trial court’s finding that the “removal of the ward’s estate to Missouri will not conflict with the interest of the ward” is against the manifest weight of the evidence. The relevant facts alleged in the written stipulation are as follows:

Louis and Grace Schollmeyer were married in Chicago in 1962 and made their home there up to the date of these proceedings. They both had lived in the Chicago area throughout their adult lives. Since September 1966 Grace Schollmeyer has manifested symptoms of senility which warranted continuous nursing and custodial care. For some time prior to June 1967 she did not have the mental capacity to determine where she should live. In April 1967 Louis underwent surgery for cancer. This was later diagnosed as terminal and he was readmitted to a Chicago hospital on or about June 12th, where he died on June 25, 1967. The day before he was readmitted to the hospital he had a telephone conversation with his sister who lived in St. Louis and asked her to convey a message to Norval Burnside, his wife’s brother, who was also a resident of St. Louis. She told Burnside that Louis had terminal cancer and that he wanted him to find a nursing home for Grace in St. Louis. On the same day Schollmeyer asked Parker McMahan, a longtime friend, whether he would have himself appointed conservator of Grace’s person and estate. The following day Burnside informed Schollmeyer that he had found a suitable nursing home, whereupon Schollmeyer asked him to take Grace there as soon as possible. On June 21, 1967, Burnside came to Chicago with a sister Isabelle Shell and they took Grace to St. Louis, where she was admitted to the Regency Nursing Inn on the same day. The day before Grace left Chicago, McMahan filed a petition in the Probate Division of the Circuit Court of Cook County, seeking to be appointed conservator of her person and estate. Grace was adjudged incompetent and McMahan’s petition was granted on July 12, 1967. Shortly thereafter Mc-Mahan took custody of the ward’s property.

On or about August 30, 1967, Louis Schollmeyer’s will was admitted to probate in the Circuit Court of Cook County and McMahan was appointed and is presently acting as executor of that estate. The will contains a trust provision naming McMahan as trustee and Grace Schollmeyer as a beneficiary.

On October 24, 1967, Burnside filed an application in the Probate Court of St. Louis, Missouri, to have himself appointed guardian of the person and estate of Grace Schollmeyer. An order granting his petition was entered on November 13, 1967. Following this, Burnside made application for and has been receiving Social Security payments due the ward.

Burnside then filed his petition in the Illinois Court seeking removal of the assets and McMahan filed an answer and cross-petition for an order directing Burnside to transfer to him the Social Security funds Burnside had been receiving on behalf of Grace. The Circuit Court found that removal of the ward’s estate to Missouri would not conflict with her interest or the terms of limitation attending the right by which she owns the estate or the rights of creditors and ordered McMahan to file a final account within sixty days and to pay and deliver the assets of the estate to Burnside as Missouri conservator of the person and estate of Grace Schollmeyer.

McMahan argues that Grace Schollmeyer is not a “nonresident ward” within the meaning of section 264 of the Probate Act, since it is stipulated that prior to June 1967 and to the present date she has not had the mental capacity to determine where she should live and hence her residence could not be changed from Illinois to Missouri. His contention is based on a statement in the opinion rendered in the case of In re Estate of McCormick, 260 Ill App 36, which reads as follows (p 42):

“Moreover, it is the established law in this State, as well as in other jurisdictions, that the physical removal of an incompetent adult from place to place does not affect his domicile, residence or citizenship.”

The fundamental defect in respondent’s argument lies in his assumption that “non-resident” as that term is used in section 264 and “non-domiciliary” are identical terms. While the court in McCormick, supra, did treat “domicile” and “residence” as equivalents, it was not then construing the statute now before us. If it had, we believe a different result would have been reached.

It has long been established that “residence” and “domicile” are not truly convertible terms. See, e. g., Dorsey v. Brigham, 177 Ill 250, 52 NE 303; Hayes v. Hayes, 74 Ill 312; Board of Sup’rs of Tazewell County v. Davenport, 40 Ill 197; Witbeck v. Marshall-Wells Hardware Co., 88 Ill App 101. The term “non-resident” as used in the statute before us has been consistently construed not to have a meaning interchangeable with that of “domicile.” In re Estate of Loeffler, 91 Ill App2d 304, 234 NE2d 1; Parcher v. Reese, 202 Ill App 509.

In Loeffler, Rita Jagnow had been appointed conservator of the person of her mother Ellen Loeffler and the Oak Park Trust & Savings Bank had been appointed conservator of the estate, both by the Illinois court. On February 21,1964, Jagnow took her mother from her Hlinois residence to California, where she was placed in a nursing home. The following June the California court appointed Jagnow guardian of the person of her mother and the Bank of America was appointed guardian of the estate. With permission of the California court the Bank of America filed a petition in the Circuit Court of Cook County for transfer of the assets so that the estate could be administered in California. The petition was denied and the petitioner appealed. It was conceded that the ward did not have the mental capacity to change her domicile herself, but the court held it was not necessary to pass upon the matter of domicile and remanded the cause for a hearing to determine whether the ward had become a resident of California.

In Parcher a person who had been adjudicated insane in Illinois was taken to Missouri by Parcher with the consent of the Illinois conservator and court. Later Parcher was appointed guardian in Missouri and filed a petition in Illinois to recover the insane person’s estate. After stating that the term “non-resident” has different meanings according to the subject matter under consideration, the court pointed out that the term sometimes is used to designate the “abiding place” of a person, as distinguished from his “domicile.” The court concluded that “non-resident ward” as used in the statute should be construed to mean an insane person who is beyond the jurisdiction of the courts of this State, has been adjudged incompetent by a court of another state and for whose person and estate a guardian or conservator has been appointed by such court.

In the instant case it is clearly established that it was the husband who initiated the move to have his wife taken to St. Louis when he learned he was about to die and that it was he who requested her brother to find a suitable nursing home for her there. When Grace was taken to St. Louis she had not yet been adjudged incompetent although she did not have the mental capacity to determine where she should live. Nowhere does it appear that the decision to move her was based on any motive other than her best interest. It is clear that her removal to St. Louis was not of a temporary or casual character but the result of her dying husband’s desire to have a place for her where her relatives were close at hand and could procure for her the care she would require until her death. On November 13, 1967, the Probate Court of St. Louis adjudged her incompetent and appointed Burnside conservator of her person and estate. Since the test laid down in Parcher was therefore satisfied and since it does not appear that the decision to move Grace to St. Louis was motivated by any purpose other than her best interest, we conclude that she is now a “non-resident ward” within the meaning of the statute.

It is conceded by respondent-appellant that the court’s finding that removal of the estate will not conflict with the terms of limitation attending the right by which the ward owns the estate or the rights of creditors is correct. He contends however that the finding of the trial court that removal will not conflict with the ward’s interest is against the manifest weight of the evidence. We find no substantial evidence supporting that contention. On the contrary, the stipulated facts amply support the trial court’s finding.

During the pendency of this appeal the death of Norval Burnside has been suggested and Isabelle Shell, the ward’s sister, has been substituted as successor-guardian of her person and estate.

The judgment is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Michael Zito, Defendant-Appellant.
    Gen. No. 53,452. (Abstract of Decision.)
    First District, Third Division.
    January 29, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (John E. Hughes, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant;
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Robert Kelty, Special Assistant State’s Attorney, and Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by JUSTICE SCHWARTZ. Not to be published in full.


author: MB. PRESIDING JUSTICE DEMPSEY

text:
    Martin Denenberg, Plaintiff-Appellant, v. Prudence Mutual Casualty Company, Defendant-Appellee.
    Gen. No. 53,593.
    First District, Third Division.
    January 29, 1970.

      Thomas L. Churchwell and Leo J. Spivack, of Chicago (Masuda, Spivack & Funai, of counsel), for appellant.
    Delars J. Bracy, of Chicago, for appellee.
   MB. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

This is an appeal from an order under section 72 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 72) vacating a judgment which had been entered for the plaintiff. The plaintiff’s initial action was for the value of certain securities deposited with the defendant, Prudence Mutual Casualty Co., under the terms of an agency contract. Prudence filed an answer denying liability and a counterclaim seeking recovery for liabilities it incurred because of the plaintiff’s failure to meet his obligations under the contract. The trial court entered an ex parte judgment for the plaintiff because of the defendant’s failure to appear at a deposition hearing. More than thirty days thereafter the defendant filed a petition to vacate the judgment, alleging that its attorney had informed the office of the plaintiff’s counsel that he would be unable to appear for the deposition and had been advised that it would be rescheduled for another date. The petition also alleged that its attorney received no notice of the plaintiff’s motion for judgment. The petition and an amended petition were denied. However, on rehearing within thirty days of the denial the trial court granted the amended petition and vacated the judgment.

The plaintiff and the defendant filed briefs in this court and the case, as requested, was set for oral argument. Subsequently the argument was waived and the case submitted on the briefs.

Although the plaintiff filed a brief, he has failed to file either an abstract of the record or excerpts from the record as required by Supreme Court Rule 342, Ill Rev Stats 1967, c 110A, § 342. The abstract or the excerpts constitute the pleading of the appellant in a court of review and they must contain everything necessary to decide the issues raised in the appeal. Gribben v. Interstate Motor Freight System Co., 38 Ill App2d 123, 186 NE2d 100 (1962). It is the duty of the appellant to present an abstract (or excerpts) sufficient to set forth every error relied upon for reversal. Dempski v. Dempski, 27 Ill2d 69, 187 NE2d 734 (1963). A deficient abstract may be overlooked, inadequate excerpts disregarded, but the failure to file either abstract or excerpts warrants dismissal.

On appeal, all reasonable presumptions are in favor of the judgment of the trial court, and the party who prosecutes an appeal has the burden of overcoming these presumptions by affirmatively showing the errors charged. Husted v. Thompson-Hayward Chemical Co., 62 Ill App2d 287, 210 NE2d 614 (1965). Although the entire record is available to the reviewing court (Rule 342(g)) the court is not required to search the record to find a reason for reversing the judgment. Elden v. Addison Farmers Mut. Ins. Co., 90 Ill App2d 417, 233 NE2d 42 (1967).

The failure to file an abstract or excerpts is a serious omission and the appeal is dismissed.

Appeal dismissed.

SCHWARTZ and McNAMARA, JJ., concur.


author: MR, JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Loree Parker, Defendant-Appellant.
    Gen. No. 53,781.
    First District, Third Division.
    January 29, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Saul H. Brauner, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick T. Driscoll, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR, JUSTICE SCHWARTZ

delivered the opinion of the court.

Defendant was indicted for the murder of one Arthur Brown. The indictment consisted of two counts, the first of which charged that she intentionally and knowingly stabbed Brown and the second, that she stabbed him knowing there was a strong probability of death or great bodily harm. Defendant waived jury trial, was tried by the court and found guilty of manslaughter as a lesser included offense and was sentenced to serve a term of not less than two nor more than three years in the Illinois State Reformatory for Women. The defendant appeals, contending she was acting in self-defense and that the evidence is sufficient to raise a reasonable doubt of her guilt. The facts follow.

Paul Hutson, a security officer for the Illinois Bell Telephone Company, testified that on March 9, 1968 at 10:35 p. m. he was on duty at his employer’s facility at 3456 West Adams Street, Chicago. It was his duty to escort employees to their cars in the parking lot or to the bus stop. As he was escorting an employee through the parking lot on the east side of the building he observed two people standing in a driveway connecting the lot with Adams Street. They were not tussling but were speaking loudly. The lighting conditions were good and he passed within 25 feet of them. Defendant was identified as one of the pair and the deceased was named as the other. The deceased had his hands on the uppermost part of defendant’s arms near her shoulders, while defendant’s hands were on his chest. A moment later the deceased stepped backward a few paces, leaned against a cab which had pulled into the driveway and slipped to the pavement. He had nothing in his hands while he was holding the defendant’s arms nor when he staggered back. Immediately following this the defendant began to walk east on Adams Street while Hutson went to the aid of the deceased. Seeing that Brown was bleeding, Hutson called out to the defendant and asked her to return. She answered that Brown was only scratched and was asleep. She returned to where he was lying, picked up a knife that was nearby, closed it and put it in Brown’s front pocket. Hutson did not notice any cuts or bruises on the defendant at that time.

Daniel McGrory, a Chicago police officer, testified that on March 9,1968, at approximately 10:35 p. m. he was in the vicinity of the telephone company’s facility at 3456 West Adams Street. He saw a security guard (Hutson) motioning to him. He stopped his car, walked over to the guard and saw the deceased lying in the driveway and a woman, whom he identified as the defendant, standing next to the deceased. He removed a knife from the victim’s pocket.

Willie Brown, a cousin of the deceased, testified for the defense that at 4:00 p. m. on March 9, 1968, the deceased telephoned him from the apartment of Emma Wash and asked whether he would join them there. Brown went to the apartment, arriving at about 5:00 p. m. Shortly before 10:00 p. m. defendant and the deceased engaged in an argument during which the deceased brandished a knife and threatened to kill defendant if she picked up some money he had put on a table. Defendant got her coat and left without taking the money. The deceased followed some ten or fifteen minutes later. The witness further testified that he and the deceased shared a pint of whiskey in the apartment and he also testified that he had been present on an occasion prior to the night in question when the deceased cut defendant with a can opener.

On direct examination defendant testified that she was the “common-law wife” of the deceased and had been living with him for fourteen years. In the early evening of March 4, 1968, she and the deceased went to Emma Wash’s apartment. Later that evening the deceased started an argument with her during which he displayed an open pocketknife and said he was going to “cut her.” They had both been drinking. The defendant was afraid he would kill her but did not call the police because she did not want him arrested. She further testified that she left the apartment some five or ten minutes after the deceased had threatened her and that he followed her about five minutes later. There was another confrontation on the street in front of the building they had just left. The deceased attempted to slash defendant with his knife and threatened to kill her when they “got to the house.” She threw two pop bottles at him, but did not hit him.

Defendant further testified that she continued walking toward her apartment until she reached a telephone booth on the premises of the telephone company at 3456 West Adams Street. The deceased who had been following her asked her to dial a number for him and she did so. While he was talking on the telephone he told her he was going to kill her. By the time he finished his call they had both drawn their knives. The deceased cut her on the top of her head, but she was able to grab his right arm and temporarily thwart his attack. While he was trying to free the knife from his right hand she stabbed him because, as she stated, she was afraid of him.

During an extensive cross-examination defendant testified that she “once cut Mr. Brown,” (the deceased) during a knife fight in 1961 or 1962 and that on the night of the occurrence here she stabbed him with her knife. She testified that he did not stab himself with his own knife. She then admitted that on the night she was arrested she had told the police the deceased was stabbed by his own knife. When questioned as to how the stabbing occurred, she testified that while the deceased was talking on the telephone, she pushed open the door to the booth. She changed her mind and tried to close the door, but a struggle ensued when the deceased tried to hold it open. She later testified that he opened the door himself while she was standing in front of it with her back to him. They tussled toward the driveway, but at no time while in the driveway did the deceased lunge at her with his knife nor did he “make any motions as if to cut her.” She further testified that after they struggled a few minutes the deceased staggered backward, bumped into a cab which had just pulled into the driveway and dropped his knife as he slipped to the ground. She then put her knife in her brassiere but not until after Hutson had come to the deceased’s aid and had called her back to the driveway. She was able to keep the knife concealed under her brassiere when she was searched by the matron at police headquarters.

In rebuttal the State called detective Walter Siemieniak who had interviewed defendant at the local police station a short time after her arrest. He informed her of her constitutional rights and interrogated her about the events surrounding the homicide. She told him a different story. She said the deceased threatened her with a knife he held in his left hand and that she swung her arms to knock it out of his grip but instead it was thrust into his chest. Detective Siemieniak also testified that he visually examined defendant’s head at the time he interviewed her and did not find any blood nor did she complain of any injury.

Defendant’s sole contention is that under sections 7-14 and 3-2 of the Criminal Code (Ill Rev Stats, c 38 (1967)) the evidence was insufficient to establish guilt beyond a reasonable doubt since the State failed to prove the killing was not in self-defense. Section 7-14 of the Criminal Code provides that self-defense is an affirmative defense and section 3-2 provides:

“(a) ‘Affirmative defense’ means that unless the State’s evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence thereon.
“(b) If the issue involved in an affirmative defense is raised then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense.’’

That is to say, once an affirmative defense is interposed by the introduction of “some evidence” by either the State or the defense, the burden devolves upon the State to prove guilt beyond a reasonable doubt as to that issue as well as to all other elements of the offense.

Defendant argues that her testimony that she was acting in self-defense was not contradicted in any material respect by Hutson, the only eyewitness other than herself. An examination of Hutson’s testimony as herein-before noted, reveals however that it supports the State’s case and contradicts important aspects of defendant’s version of the occurrence. Moreover, her testimony was not only self-impeaching but was inconsistent with her prior statements and with other evidence. She testified that the deceased cut her on the top of her head when they were standing next to a telephone booth at 3456 West Adams Street. Later she testified that the cut was “only a scratch” and she “wasn’t hurt.” Both Hutson and officer Siemieniak testified they saw no blood on defendant’s head. Defendant testified at one point that she stabbed the deceased as he stepped out of the telephone booth because she was “afraid of him,” and at another point that she did not know whether she stabbed him at that time. She also testified that after she stabbed him, she put the knife she had used under her brassiere and that this was done in Hutson’s presence after he came to the aid of the deceased. The knife was still under her brassiere according to her testimony when she was subjected to a thorough search at police headquarters but the matron was unable to find it. Hutson testified, however, that he was watching the defendant at the time she asserts she concealed the knife and that he did not see her do so. And again defendant testified that the deceased dropped his knife as he slipped to the ground after bumping into a cab in the driveway. Hutson testified that he was watching the deceased at that time but saw nothing in his hands. Defendant admitted that she told officer Siemieniak on the night of her arrest that only the deceased had a knife and that he was stabbed with his own knife, although she testified that they both had knives and that she stabbed him with her knife. She also admitted telling officer Siemieniak that they were fighting because the deceased was interested in another woman. Her testimony was that the fight grew out of an argument over money.

A reviewing court will not disturb a verdict of guilt unless the evidence is so palpably contrary to the verdict or so unsatisfactory as to justify entertaining a reasonable doubt of the defendant’s guilt. People v. McClain, 410 Ill 280, 102 NE2d 134; People v. Jordan, 18 Ill2d 489, 165 NE2d 296; People v. Owens, 73 Ill App2d 108, 219 NE2d 733. Whether a homicide was justified under the law of self-defense is a question of fact. People v. Johnson, 108 Ill App2d 150, 247 NE2d 10; People v. Watt, 101 Ill App2d 36, 241 NE2d 463. When, as here, the evidence is conflicting, it is the function of the trier of fact to resolve the conflict and determine the credibility of the witnesses. People v. Bolger, 359 Ill 58, 194 NE 225; People v. Brumbeloe, 97 Ill App2d 370, 240 NE2d 150. Defendant’s testimony when viewed in the light of the whole record is not sufficient to raise a reasonable doubt of her guilt and accordingly the judgment is affirmed.

Judgment affirmed.

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


author: SIMKINS, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Phillip Daugherty, Defendant-Appellant.
    Gen. No. 69-19.
    Fifth District.
    February 4, 1970.
    Robert Broverman, of Taylorville, for appellant.
    John H. Ward, State’s Attorney, of Taylorville, for appellee.
   SIMKINS, J.

The defendant, Phillip Daugherty, was charged in the Circuit Court of Christian County, in Cause 68-C-434 with battery and Criminal damage to property, and in Cause 68-C-435 with battery. The two cases were consolidated for trial before a jury; defendant was found not guilty of criminal damage to property, guilty of both battery charges, and sentenced to the Illinois State Penal Farm for ninety days in each cause, the sentences to run concurrently.

Among other assignments of error, defendant urges that the closing argument made by the State’s Attorney was so prejudicial as to deprive him of a fair trial. The People concede that the argument in question constituted error, but argue that the error is not reversible. We disagree.

The incidents from which the charges arose occurred on the morning of August 17,1968, in a tavern in Bulpitt, Illinois. Defendant asserted the affirmative defense of intoxication as provided in chapter 38, section 6-3, HI Rev Stats 1967. He did not testify in his own behalf. The defendant, during the same trial calendar, had been convicted by a jury of the crime of disorderly conduct as a result of the same incident, which also gave rise to the battery and damage to property complaints. In view of the conviction he moved for continuance in cases 68-C-434 and 68-C-435, his motion being grounded on his reluctance to be tried by the same jury panel before whom he had already appeared. His motion for continuance having been denied, he found himself confronted with seven jurors in the instant case who had participated in the first conviction, and these seven jurors sat on the jury which returned the battery convictions.

The complaining witness, Gullidge, testified that on the morning in question the defendant, on two occasions, stumbled into the tavern, kicking over tables and chairs, that he had a very strong odor of alcohol about him, that he was very highly intoxicated, that he was “awful heavy under the influence of alcohol” and that he was staggering, stumbling and swaying.

The complaining witness, Browning, also testified that defendant fell over the furniture, that “he was beyond the point of being a normal human being.” Other witnesses also testified to the intoxication of the defendant.

It was in this setting that the State’s Attorney, during closing argument, and over the repeated objections of counsel for the defendant (all of which objections were overruled by the trial judge) proceeded to comment directly upon the defendant’s failure to testify in his own behalf. A few excerpts from that argument are as follows:

“He raised the issue of intoxication as a defense. Let me ask each and every one of you, please, who is the best witness that sits in this courtroom right now and who sat here throughout the entire trial that could tell you whether or not Mr. Daugherty—
“I can imagine he doesn’t want you to hear, but on the other hand, ladies and gentlemen, the person who knew whether or not he was intoxicated, if intoxication is really an issue, such as he thinks it is, is sitting at this table next to us.
“He didn’t take the witness stand. He didn’t stand up here or sit up here as the case may be and tell you, ‘Well, I had been at this tavern, and I had been at that tavern, and I had been drinking at home or somewhere.’
“Ladies and gentlemen, if intoxication is an issue why didn’t he get up and tell you how intoxicated he was? ....
“Now, the best witness they had for their defense, their affirmative defense of intoxication, did not stand up and say a word about it. The best that they had — and he did not act. You think about that.
“Why didn’t he get up and tell you, ladies and gentlemen, T was smashed and I didn’t know what I was doing.’ He didn’t do that. He didn’t do it. You draw the proper conclusion.”

This argument was a direct and persistent comment on the failure of the defendant to testify, and constitutes a flagrant violation of a principle of law so long and so firmly established in this State (see People v. Wollenburg, 37 Ill2d 480, 488, 229 NE2d 490, and cases there cited, for example), as to make lengthy citation unnecessary. In People v. Mills, 40 Ill2d 4, 237 NE2d 697, the Court said:

"An appropriate test in deciding whether such closing argument violated the defendant’s right to remain silent under section 155-1 of the Code of Criminal Procedure was set out in Watt v. People, 126 Ill 9, 32, 18 NE 340, as whether ‘the reference (was) intended or calculated to direct the attention of the jury to the defendant?s neglect to avail himself of his legal right to testify?’ ” (Emphasis supplied.)

It is clear that the argument here was intended and calculated, and did, in fact, direct the jury’s attention to defendant’s failure to take the witness stand in his own behalf. The argument should not have been made, and the objections to the argument should have been sustained. Convictions so obtained cannot stand.

We do not reach the other assignments of error since they cannot recur at the next trial. The convictions are reversed and causes remanded for new trial.

Reversed and remanded.

MORAN and GOLDENHERSH, JJ., concur.


author: EBERSPACHER, J.

text:
    In the Matter of the Estate of Albert H. Watson, Deceased.
    Gen. No. 68-99.
    Fifth District.
    February 5, 1970.
    Rehearing denied March 9, 1970.

      Harris, Holbrook & Lambert, of Marion, for appellant.
    Thomas W. Haney, of Herrin, and Kenneth Powless, of Marion, for appellee.
   EBERSPACHER, J.

This is an appeal from the trial court’s decision which held in favor of petitioner-cross-respondent, John Anderson, Administrator of the Estate of Albert H. Watson, deceased (herein called “petitioner”), and against the respondent-cross-petitioner, Martha Ransaw (herein called “respondent”).

Petitioner filed a petition for citation to discover assets. The assets relevant to this appeal are three savings account passbooks. One was account number 2648 in the Herrin Security Bank of Herrin, Illinois, showing a balance of $3,195.57; the second was account number 26588 in the National Bank of Detroit showing a balance of $1,457.26; and the third was account number SS 171 in the National Bank of Detroit showing a balance of $8,488.83.

In respondent’s reply to the petition, she admitted possession of the passbooks and cross-petitioned the court for a determination that all right, title and interest in said passbooks rested in her, alleging an inter vivas gift of the passbooks was made to her by decedent, prior to his death.

After a hearing before the court without a jury it was ordered that the passbooks be turned over to the petitioner.

Facts in this case show the decedent moved from Detroit, Michigan, to Colp, Illinois, in July, 1966, and resided there until his death some 5 or 6 weeks later. During this time respondent and her then 11-year-old son, Allen, resided with the decedent, as they had in Detroit at some time prior to their moving to Illinois.

The respondent was called as a witness by her attorney and testified over objection to events surrounding her acquisition of the passbooks. In essence, she testified that on August 5, 1966, she, the decedent, and her son Allen were in her bedroom in the home in Colp when decedent stated he was going to give her something. He handed her the key to a cedar chest located in the bedroom. She was unable to open it and her son Allen assisted. When the chest was opened the decedent took the passbooks from it and said they were hers. She took the passbooks, looked at them and replaced them in the chest. She then locked the chest and placed the key in her wallet. She retained the key in her possession from that point on, and upon the death of decedent took the passbooks to her attorney. Respondent’s testimony was corroborated by that of Allen, who at the time of trial was 13.

In addition there was testimony of two neighbors of decedent, one of whom had known decedent for 50 years and had transacted business for him, as to conversations in which decedent had stated that it was his desire that his children receive nothing when he died.

The objection to respondent’s testimony was taken under advisement by the court. The respondent subsequently moved the court to call respondent as its own witness under chapter 3, section 185, Ill Rev Stats, or in the alternative, to adopt respondent’s testimony, previously given, as the testimony of a court witness. This motion was denied. Although it is not entirely clear from the record, the denial of respondent’s motion indicates a failure to consider the testimony. Respondent cites this failure to consider as error under section 185 of the Probate Act (Ill Rev Stats 1961, c 3, § 185) and the case of In re Estate of Hill, 30 Ill App2d 243, 174 NE2d 233 (1961).

The pertinent provision of the Probate Act reads as follows:

“At the hearing the Court may examine the respondent on oath whether or not the petitioner has proved the matters alleged in the petition, may hear the evidence offered by any party, may determine all questions of title, claims of adverse title, and the right of property, and may enter such orders and judgment as the case requires.”

This section has been considered by the Illinois Courts in a number of decisions. The Appellate Court stated in Storr v. Storr, 329 Ill App 537, 69 NE2d 916 (1946), at page 918:

“The legislature has provided therein a summary remedy for the recovery of property and the discovery of information. Its primary purpose is to discover assets of estates, and the court is authorized therein to make such orders as the case may require. Homer, Probate Practice, Chap 42, § 1075, Martin v. Martin, 174 Ill 371, 51 NE 691, 66 Am Stat Rep 290; Keshner v. Keshner, 376 Ill 354, 33 NE2d 877. The proceeding is purely statutory, and is neither at law nor in equity. It bears the equitable aspects of a bill of discovery, while at the same time providing for an optional jury as at law, on demand of the parties where questions arise concerning claims of adverse title or interest, as in the instant case. With reference to the nature of this proceeding, the Supreme Court of Illinois stated in Keshner v. Keshner, 376 Ill 354, 359, 33 NE2d 877: ‘We have thus an anomalous proceeding and the peculiar nature of this kind of suit has a distinct bearing on the decision of this case.’ ”

The Hill case was a citation proceeding against decedent’s widow for an unendorsed stock certificate in the possession of the widow. The court there relied upon the case of Wagner v. Wagner, 17 Ill App2d 307, 149 NE 2d 770 (1958), which held at pages 772-773: “Whether the respondent’s testimony is necessary to a full and fair presentation of the facts in this case lies within the careful exercise of discretion by the trial court.” The Hill court commented on the Wagner case in 174 NE2d at page 238 as follows: In Williams v. Wismuth, 2 Ill App2d 109, at 115, 118 NE 2d 881, the Court concluded from its review of Keshner v. Keshner, 376 Ill 354, 33 NE2d 877, “that regardless of who called the respondent to testify that it is the court’s witness, and the witnesses’ testimony should be considered with the other evidence in the case.”

“Obviously, the statement that the admission of respondent’s testimony is discretionary with the Court, refers to whether such testimony ‘is necessary to a full and fair presentation of the facts’; and it would seem to follow that where no evidence whatsoever is admitted on behalf of respondent, the discretion is certainly not carefully exercised.”

A full and fair presentation of the facts in this action, originated to recover property alleged to be that of the estate, required respondent’s testimony and the court should have adopted respondent’s testimony previously given as the testimony of a court witness and should have given it consideration with the other evidence in the case. We are of the opinion that the fact that respondent had another witness (her 13-year-old son) who could and did testify to the gift, does not distinguish this case from In re Estate of Hill, supra. Here while the evidence of Allen was presented on behalf of respondent, the trial court did not consider it as being so clear and convincing as to establish the gift, and a respondent should not be handicapped by the fact that some one other than the alleged donor and donee were present at the time the gift was made. For this and numerous other reasons, we do not make the distinction between this case and In re Estate of Hill, supra, that was made by the Hill Court in the case of In re Estate of La Rue, 53 Ill App2d 467, 473-474, 203 NE2d 47.

Here the material evidence concerning the alleged gift is uncontradicted by either direct evidence, inferences that could reasonably be drawn therefrom, or the circumstances surrounding the relationship between the decedent and the alleged donee.

That the decedent and respondent had resided in the same house in Detroit at some time prior to moving their possessions to Illinois to establish a home together in this state, and that they did establish a home together here is borne out by the record. It is only whether they intended to get married after establishing themselves in Illinois, a matter immaterial to the issue, that is controverted. Likewise, the testimony of two uninterested neighbors and old acquaintances to the effect that decedent had expressed the opinion that his children were only interested in him to get his property, and that he did not want them to get his money is uncontradicted, and borne out by uncontradicted circumstances. That decedent was motivated by the lack of attention from his children to give his property to respondent rather than to keep it for his children is likewise shown by the record; one of his sons testified that decedent lived alone in Detroit, while the other on his first cross-examination testified they had not lived together in Detroit, but on a subsequent cross-examination admitted that decedent and respondent lived together in Detroit for approximately 2 years “around 1963 or 1964” but “I really didn’t pay any attention.” According to his own testimony, that son’s only interest in decedent’s moving with respondent to Illinois, was in whether decedent was going to marry respondent, which supports decedent’s expressed sentiment that his children were only interested in him to get his property. That on the same day that the alleged delivery of the passbooks was made, the decedent gave respondent $400 in cash, which he had withdrawn that day, is likewise uncontroverted. Furthermore, there is no evidence of any act of respondent subsequent to the alleged making of the gift that is inconsistent with respondent’s ownership of the savings accounts.

Allen’s testimony concerning their delivery and acceptance is positive and uncontradicted. Furthermore, the gift imposed no burden upon the donee, and was beneficial to her, and acceptance is presumed as a matter of law. Chicago Sav. Bank & Trust Co. v. Cohn, 197 Ill App 326, 329. Evidence of delivery of a savings account coupled with oral expression of intention to make the gift is sufficient to constitute a valid gift inter vivas and to pass title to the funds. In re Estate of Antkowski, 286 Ill App 184, 3 NE2d 132. Decedent’s donative intent is shown by his own words, and is not contradicted. Where disclosure to inquiring hostile parties would only create a greater hostility, it is only natural that respondent would fail to disclose the gifts, except through her attorney. Respondent’s failure to disclose was only natural under the circumstances here present, and was consistent with her ownership of the accounts. The testimony of Allen, an unimpeached witness, not contradicted by positive testimony or circumstances and not inherently false or improbable may not be disregarded, Urban v. Industrial Commission, 34 Ill2d 159, 163, 214 NE2d 737, 739; Dill v. Widman, 413 Ill 448, 454, 109 NE 2d 765, 768, even if the trial court saw fit to give little credence to the self-serving testimony of respondent, who was not impeached and whose testimony was neither contradicted nor inherently false or improbable in view of all the evidence presented. We are not here presented with a situation that called for the weighing of conflicting and inconsistent testimony. When all the testimony is considered, the evidence of a gift is clear and convincing.

As a result, the judgment of the trial court is reversed, and this cause is remanded for dismissal of the petition for citation and entry of a judgment on respondent’s cross-petition.

Reversed and remanded.

MORAN and GOLDENHERSH, JJ., concur.


author: PER CURIAM.

text:
    Nickel Plate Cloverleaf Federal Credit Union, Plaintiff-Appellant, v. John F. White and Connie A. White, Defendants-Appellees.
    Gen. No. 68-136.
    Fifth District.
    February 9, 1970.
    Calvo & Mateyka, of Granite City (M. Joseph Hill, of counsel), for appellant.
    William E. Brandt, of Granite City, for appellees.
   PER CURIAM.

On October 26, 1966, plaintiff brought suit against the defendants alleging that on December 8, 1964, it loaned them the sum of $1,233.81 on which there was still due and owing the sum of $992.50; that the defendants obtained the loan through the use of a materially false financial statement in writing upon which plaintiff relied. Plaintiff attached to the complaint an instrument entitled “Applicant’s Statement” upon which the defendant, John F. White, listed certain debts. On the reverse side of the instrument the defendant, John F. White, certified to all of the statements made in the loan application and that they were made for the purpose of obtaining credit. He listed as the reasons for making the loan that he wanted money to pay off the credit union and to pay the balance due on a butane gas bill.

Defendant filed an affirmative defense claiming that the debt was discharged in bankruptcy.

The old note was cancelled, the defendants signed a new note, and the defendants received cash in the amount of $100. Later, the defendant filed a petition in bankruptcy on February 24,1966, listing the debt owed plaintiff which had been reduced to $922.50.

When the defendants obtained the loan on December 8, 1964, John F. White filled out the applicant’s statement and listed his total number of creditors as five. The evidence disclosed that at the time defendants made the loan from plaintiff they had other outstanding debts owing to creditors.

At the conclusion of the evidence the trial judge commented that fraud was hard to prove and that the plaintiff had not proved fraud in obtaining the renewal of the loan on December 8, 1964. He then entered the following judgment order on March 21,1968:

“Case called. Plaintiff present by attorney William Mateyka. Defendant present and represented by attorney William Brandt. Witnesses sworn, evidence heard. The Court finds that Defendant is indebted to the Plaintiff in the amount of $100.00 plus interest in the amount of $39.00 plus costs and enters judgment for the Plaintiff against the Defendants in the above amount.”

Plaintiff filed a motion for modification of the judgment to increase the amount of recovery to $992.50, plus interest and costs of suit. The trial court denied plaintiff’s post-trial motion.

Plaintiff now contends that the trial court should have entered judgment for $922.50, plus interest instead of $100.00, plus interest. It argues that by a finding that part of the debt was due the plaintiff, the court was in effect finding that the second loan, the one sued upon, was obtained by false representation.

The applicable provision of the Bankruptcy Act is found in 11 USC 35 (a) (2) as amended in 1960:

“(1) A discharge in bankruptcy shall release a bankrupt from all of Ms provable debts, whether allowable in full or in part, except such as ... . (2) are liabilities for obtaining money or property by false pretenses or false representations or for obtaining money or property on credit or obtaining an extension or renewal of credit in reliance upon a materially false statement in writing respecting Ms financial condition made or published or caused to be made or published in. any manner whatsoever with intent to deceive. . . .”

What a creditor must prove in order to recover in the face of a discharge in bankruptcy is well stated in Sweet v. Ritter Finance Co., 263 F Supp 540, wherein the United States District Court for the Western District of Virginia said at page 543:

“Not only does Ritter Finance have the burden of proof, but it is also faced with the rule that all exceptions set forth in § 17 (a) are to be strictly construed. Gleason v. Thaw, 236 US 558, 35 S Ct 287, 59 L Ed 717 (1915). Ritter Finance must prove actual fraud before it can show Sweet’s debt to be nondischargeable under § 17 (a) (2). In other words, Ritter Finance must show by a preponderance of the evidence that (1) the debtor made the representations ; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the creditor; (4) that the creditor relied on such representations and (5) that the creditor sustained the alleged loss and damages as the proximate result of the representations having been made. Friendly Finance Co. v. Stower, 109 Ga App 21, 134 SE2d 837 (1964). See also United States v. Syros, supra, and 1 Collier on Bankruptcy § 17.16.”

In view of the court’s finding that plaintiff had failed to prove fraud in obtaining the renewal, judgment should have been entered for the defendants. However, in the absence of a cross-appeal we do not reverse the judgment entered against defendant, John F. White.

The Judgment of the Circuit Court of Madison County is affirmed.

Judgment affirmed.


author: GOLDENHERSH, J.

text:
    The Department of Public Works and Buildings of the State of Illinois, for and in Behalf of the People of the State of Illinois, Petitioner-Appellee, v. Herbert Tinsley, Helen Tinsley, Donna Lee Turner, Loren F. Turner, Ramona June Kelley, James Roy Kelley, Harvey W. Randall, Grace Randall, Curtis W. Gillespie, d/b/a Belle Rive Mining Co., and Belle Rive Mining Co., a Corporation, Defendants-Appellants.
    Gen. No. 68-139.
    Fifth District.
    February 11, 1970.

      Dowell & Dowell, of Mt. Vernon, for appellants.
    William J. Scott, Attorney General of State of Illinois, of Chicago (Harold G. Andrews and G. W. Howard, III, Special Assistant Attorneys General, of counsel), for appellee.
   GOLDENHERSH, J.

Defendants appeal from the judgment of the Circuit Court of Jefferson County entered upon a jury verdict in an action to condemn land for use in the construction of Interstate Route 57 north of Mt. Vernon.

In this action petitioner acquired fee simple title, except for certain coal, oil, gas and mineral rights, to two parcels of land comprising, respectively, 9.2 and 6.4 acres, and an easement for construction purposes upon a parcel comprising 2.54 acres. The easement terminates upon completion of the construction project, or three years from June 30, 1967, whichever is earlier. The land condemned is part of a 18914-acre tract owned by defendants Herbert and Helen Tinsley. Defendants Ramona June Kelley, James Roy Kelley, Donna Lee Turner and Loren F. Turner own undivided interests in the minerals. Defendants Curtis W. Gillespie, d/b/a Belle Rive Mining Company, Belle Rive Mining Co., a corporation, Harvey W. Randall, and Grace Randall are lessees under mineral leases entitling them to mine and remove the limestone underlying the premises.

Subsequent to the filing of the petition, by a “quick take” proceeding (c 47, § 2.1 et seq., Ill Rev Stats), petitioner took title to and possession of the two parcels, and the easement on, and possession of the third. Defendants filed cross-petitions alleging damages to the remainder of the parcel.

Prior to commencement of the trial, defendants, relying upon Department of Public Works and Buildings v. Dixon, 37 Ill2d 518, 229 NE2d 679, moved for the right to open and close argument. The trial court ruled “That the defendants having the right to open and close must under the ruling of the Dixon case go forward with the proof of the valuation of the land to be taken as well as the amount of damages to the land not taken and the defendants will also have the right to first question the jurors after tendered by the court to the parties.” Defendants contend that they were entitled to open and close argument, and in requiring them to go forward with their case from voir dire to close or forego the right to open and close final argument, the circuit court committed prejudicial error.

In its opinion in Dixon the Supreme Court discussed South Park Com’rs v. Trustees of Schools, 107 Ill 489, in which case the Supreme Court reversed the judgment of the circuit court on the ground that it had erred in permitting the owner of the land to open and close the case both in the introduction of evidence and on argument to the jury. In Dixon the question presented was much narrower, in that the motion to open and close argument came at the close of the evidence, and no issue arose as to the order of interrogation of jurors or introduction of evidence. The Supreme Court did not, therefore, decide the question which now confronts us.

In Liptak v. Security Benefit Ass’n, 350 Ill 614, 183 NE 564, the Supreme Court, at page 618, said: “The right to open and close is a substantial right coexistent with the burden of proof and is corollary thereto. Whenever the plaintiff has anything to prove in order to secure a verdict the right to open and close belongs to him. It is generally held that the right to open and close is not a matter resting merely in the discretion of the trial judge, but is a substantial right in the person who must introduce proof to prevent judgment against him. The party who asserts the affirmative of an issue is entitled to begin and reply. (Citing cases.)”

In its opinion (37 Ill2d 518, 229 NE2d 679) at page 520 the Supreme Court said “While petitioner has the burden of proving fair cash value of the property to be taken (County of Cook v. Holland, 3 Ill2d 36), the landowner bears the burden for damage to the remainder not taken. Department of Public Works and Buildings v. Bloomer, 28 Ill2d 267; Central Illinois Electric and Gas Co. v. Scully, 17 Ill2d 348.”

We are uncertain whether this indicates agreement with the Committee’s Comments found at page 175 of the 1965 Additions and Revisions to Illinois Pattern Jury Instructions where it said: “An analysis of the decisions . stating that the condemnor has the burden of proving the value of the land actually taken, e. g., Department of Public Works & Bldgs, v. Bloomer, 28 Ill2d 267, 270, 191 NE2d 245, 248 (1963), indicates that in using the term, ‘burden of proof,’ the courts mean only the duty to introduce competent evidence of value. No Illinois case places a burden upon the condemnor to persuade the jury that its evidence of market value is more probably true than not true or that a particular value must be proved by a preponderance or greater weight of the evidence. An Ohio court has specifically considered the problem and stated: ‘It has been established in Ohio that with reference to compensation for land taken there is no burden of proof.’ In re Appropriation by the Director of Highways, 120 Ohio App 273, 201 NE2d 889 (1963).

“A condemnation proceeding differs from the ordinary civil action. The nature of the evidence introduced and the verdict that can result demonstrate the inappropriateness of an instruction on burden of proof such as IPI 21.01.”

We note further that in IPI instructions 300.31 and 300.32 the burden of proof with respect to damage to land not taken is placed upon the landowner in language almost identical to the burden of proof instruction to be used in other civil cases. (IPI 21.01.)

Supreme Court Rule 233 provides:

“The parties shall proceed at all stages of the trial, including the interrogation of prospective jurors, opening and closing statements, the offering of evidence, and the examination of witnesses, in the order in which they appear in the pleadings unless otherwise agreed by all parties or ordered by the court. In consolidated cases, third party proceedings, and all other cases not otherwise provided for, the court shall designate the order.”

In our opinion the proper interpretation of the holding in Dixon is that if the landowner avails himself of the right to open and close he must do so at all stages of the trial. Defendants argue that requiring them to go forward with their evidence was prejudicial in that it deprived them of the advantage of cross-examination of plaintiff’s witnesses prior to putting on their own, but any additional burden which this imposed is compensated for in the right to offer rebuttal. The trial court did not err in its ruling.

Defendants next contend the trial court erred in giving plaintiff’s instruction No. 4 in the form of 300.59 and 300.60, combined and modified. Defendants argue the instruction is not applicable to the leases here involved for the reason that the payments provided for are in the nature of mineral royalties and not rentals. Such further modification of the instruction might have been desirable, but in view of the verdict and the other instructions we do not see how defendants were prejudiced by the instruction as given.

Defendants contend the court erred in refusing their instruction No. 7. It correctly states the abstract proposition of law therein contained and is similar to the type of instruction referred to in IPI 2.09, 2.10 and 300.03. The Committee recommends against giving this type of instruction, defendants tendered and the court gave an instruction in the form of IPI 2.01, and refusal of the instruction was not error.

Defendants contend the court erred in refusing to give their tendered instruction No. 8 which reads:

“You are instructed that where there are mineral deposits, such as limestone, in land, the existence of such minerals is appropriately considered insofar as the value of the land is influenced thereby.”,

arguing that under Department of Public Works and Buildings v. Oberlaender, 92 Ill App2d 174, 235 NE2d 3 (affirmed 42 Ill2d 410, 247 NE2d 888) the tendered instruction correctly states the law. Defendants tendered and the court gave an instruction in substantially the form of IPI 300.84. This instruction correctly stated the law and there was no reason to single out, as does the tendered instruction, a single element for consideration by the jury. The court correctly refused the instruction.

Defendants argue alleged errors in admitting the testimony of plaintiff’s witness, Jundt. We have examined the transcript of his testimony and the post-trial motion, and find that the errors urged here are not preserved either by objection at the trial or in the post-trial motion and will not, therefore, be further considered.

Defendants attached to their post-trial motion the affidavit of a juror quoting the statement made by another juror during the jury’s deliberations. Defendants contend the affidavit shows the juror to have been prejudiced against the defendants Randall and to have answered falsely the questions put to her on voir dire as to whether she knew the defendants and was in any manner prejudiced against them. They argue that the trial court refused to consider the affidavit and erroneously denied them a new trial.

The rules applicable to the question presented are stated in Department of Public Works and Buildings v. Christensen, 25 Ill2d 273, 184 NE2d 884. From our examination of the record we conclude that defendants have failed to establish either that the juror answered falsely or that prejudice resulted. The trial court did not err in denying a new trial.

For the reasons set forth, the judgment of the Circuit Court of Jefferson County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: TRAPP, J.

text:
    Marie Beatrice Honey, Plaintiff-Appellee, v. John Perry Honey, Defendant-Appellant.
    Gen. Nos. 11,061, 11,084. (Consolidated.)
    Fourth District.
    February 17, 1970.
    Rehearing denied March 24, 1970.

      John A. Lambright, of Danville, for appellant.
    Wright & Young, of Danville (William A. Young, of counsel), for appellee.
   TRAPP, J.

Defendant appeals from a decree which granted a divorce to his wife upon the grounds of physical and mental cruelty, and awarded alimony in gross in the sum of $36,500. He also appeals from an order awarding temporary alimony in the sum of $50 per week pending appeal. The appeal from the latter order was consolidated with the principal appeal.

. Plaintiff filed a complaint for separate maintenance on November 18, 1966, alleging that the parties had been living apart since October 4,1966. On September 5, 1967, the complaint was amended to pray for divorce with allegations purporting to allege mental cruelty, with the further allegations of physical cruelty. A subsequent amendment alleged desertion.

Defendant’s motion to the first amended complaint pointed out that the statute constituting mental cruelty as a grounds for divorce was not in effect until July, 1967, after the parties had been separated some nine months. There are no allegations of acts of the quality of mental cruelty during the period of separation. The amendment in question, c 40, § 1, Ill Rev Stats 1967, creates a cause of action or substantive right not theretofore existing, and, absent legislative provision to the contrary, should not have a retroactive effect.

The award of divorce, however, may be sustained upon the evidence of acts of physical cruelty. The defendant argues that a condonation of the cruelty was shown in the record. It has long been the rule that condonation is an affirmative defense which must be pleaded. Lipe v. Lipe, 327 Ill 39, 158 NE 411; Roback v. Roback, 59 Ill App2d 222, 207 NE2d 130. We find no allegation of condonation in the answer filed by the defendant. In the event the court found credible evidence that defendant had made threats against the plaintiff while defendant was gesticulating with a shotgun. Such conduct is shown in the record to have occurred just prior to the separation of the parties.

The defendant urges that the trial court dismissed plaintiff’s count for desertion and that such constituted a finding that the plaintiff had no grounds for leaving home and that, ergo, she is, in fact, guilty of desertion. Upon such premise it is argued that plaintiff is not entitled to a divorce upon the ground of physical cruelty. He cites authorities upon the separate propositions. The chain of logic is pulled apart, however, by the terms of the decree, i. e., that upon the execution of the decree for divorce upon the grounds of cruelty the count for desertion is to be dismissed. Such provision constitutes an administrative disposition of the count when determination of its merits was no longer relevant to the proceedings.

The trial judge announced that he believed that the plaintiff was entitled to one-half of the property accumulated during the marriage as alimony in gross. This was fixed in the sum. of $36,500.

We conclude that plaintiff’s counsel persuaded the court to adopt the wrong standard in determining the award of alimony. The measure of alimony is the need of the wife considered in connection with the ability of the husband to pay. Adams v. Adams, 398 Ill 581, 76 NE2d 495; Chalmers v. Chalmers, 31 Ill App2d 1, 175 NE2d. 613; Still v. Still, 96 Ill App2d 320, 238 NE2d 613. In Chalmers the court noted that together with the needs and abilities of the party, the court should consider their respective ages, their health and social conditions and whether or not a party was supporting children. The record shows that these factors were not the basis of the award. In Schwarz v. Schwarz, 27 Ill2d 140, 188 NE2d 673, and McGaughy v. McGaughy, 410 Ill 596, 102 NE2d 806, it is said that the usual and proper procedure is to award alimony in periodic payments for the factors of the respective need and abilities of the party then remain within the control of the court. In Dmitroca v. Dmitroca, 79 Ill App2d 220, 223 NE2d 545, it is said that alimony in gross may be awarded where the entire record shows that periodic payments are not feasible, as where the record shows that a spouse does not pay his bills or will not work, Smothers v. Smothers, 25 Ill2d 86, 182 NE2d 758; Miezio v. Miezio, 6 Ill2d 469., 129 NE2d 20; or where the husband was regularly intoxicated and refused to work, Persico v. Persico, 409 Ill 608, 100 NE2d 904; or again, where the husband’s occupation was so hazardous that he might not be able to continue to produce income, Rodely v. Rodely, 28 Ill2d 347, 192 NE2d 347. While the complaint alleged that the defendant was concealing, or would conceal his property to avoid paying alimony, there is no suggestion of such conduct in the record.

Defendant appeals from the award of temporary alimony in the sum of $50 a week, arguing that there was no evidence of plaintiff’s needs which supports such award. It is true that she did not appear or testify upon the motion for temporary alimony. Defendant argues that the only evidence upon her needs was testimony at the time of the divorce hearing some seven months prior to this award. The contention is without substantial merit. The award of temporary alimony was made on July 23, 1968. A hearing on March 6, 1968, disclosed the wife’s then employment and living arrangements. There is no claim that the situation had altered or been improved at the time of the award.

The decree for divorce and the award of temporary alimony are affirmed, but the award of alimony m gross in the sum of $36,500 is reversed, and the cause is remanded for further hearing upon the needs and abilities of the respective parties.

Affirmed in part, reversed in part.

CRAVEN, P. J. and SMITH, J., concur.


author: SMITH, J.

text:
    Susan Levy Schomer, Plaintiff-Appellant, v. Marie L. Madigan, Defendant-Appellee.
    Gen. No. 11,093.
    Fourth District.
    February 17, 1970.
    Zimmerly & Johnson, of Champaign (William D. De Cardy, of counsel), for appellant.
    Phillips, Phebus, Tummelson & Barth, of Urbana (Hurshal C. Tummelson, of counsel), for appellee.
   SMITH, J.

Plaintiff recovered a judgment for $1,150 for personal injuries and prosecutes this appeal seeking a new trial on the issue of damages only. It is plaintiff’s contention that the court’s instruction relating to the use or nonuse of seat belts was in error and that a new trial should be granted on the question of damages only. There is no cross-appeal on the question of liability.

The instruction given reads as follows:

“The Court instructs the jury that in considering the extent of the plaintiff’s injury or damages you may consider, together with all other facts in evidence, whether or not the plaintiff did or did not avail herself of the use of seat belts and the extent, if any, such fact had on the extent of her injury or damages.”

The plaintiff was riding in the right-front seat of her friend’s Renault when the accident with the defendant’s automobile occurred. The Renault was equipped with seat belts. Its driver didn’t know whether either hers or her passenger’s seat belt was fastened. The plaintiff was unable to say whether the Renault was equipped with seat belts, but stated she had been told it was, or whether she did or did not have a seat belt fastened. Each side has chided the other about injecting the seat belt question into the case. As we see it, it makes no difference. The existence of the seat belts in the Renault was a fact established by the record. The issue here is not whether the presence or nonpresence of seat belts is an admissible fact, but rather whether or not the instruction relating to the seat belts should have been given under the facts in this case. We think not.

We eschew the temptation to engage in a philosophical discussion of seat belts as they relate to liability or duty. Mount v. McClellan, 91 Ill App2d 1, 234 NE2d 329 has been cited to us». When the decision in that case is honed down to its precise point, it holds only that the evidence that the plaintiff’s car was not equipped with seat belts was admissible in evidence and could be considered by the jury on the question of damages only and that it was error to grant a new trial on the theory that such evidence should not have been admitted. The court was there considering a plaintiff-owner-driver and his duty as to seat belts. We do not consider the case as either authoritative, controlling or persuasive on any issue involved in this case where we deal with a passenger-plaintiff against a third-party tort-feasor and where we consider only the propriety of an instruction on seat belts. Our discussion of that issue is not to be construed as an implication either that there is or that there is not a duty to use seat belts by the occupant of an automobile.

The observation by the court in Mount, however, that the existence or nonexistence of seat belts and the use or nonuse of seat belts has no relevancy in determining the cause of an accident is both concise and precise. Seat belts relate themselves only to the damaging consequences of an accident. They have not been designed to prevent a collision, but are designed to minimize or prevent injuries resulting when the body of the automobile occupant is suddenly accelerated or decelerated by the impact of the collision and comes into contact with the interior of the vehicle in which he is riding. We need to remember that the conduct of the user or nonuser of a seat belt is, basically, conduct at the time such person enters the automobile because it would be at that time or quite soon thereafter when the seat belt would be fastened. It’s too late when impending danger appears. In the instant ease the record is completely silent as to whether the plaintiff did nor did not wear a seat belt. A jury verdict finding either way on this issue would be pure speculation based upon no evidence in this record. The given instruction invited the jury to operate in a vacuum.

If, as a matter of fact, the plaintiff was wearing a seat belt, it seems to us to be self-evident that this instruction was wholly improper because the failure to use a seat belt under such circumstances was a nonexistent factor on either the issue of liability or the issue of damages. The instruction, therefore, could only be tendered and given on the assumption that the plaintiff did not wear the seat belt. Thus, as given, there was, in effect, an implication by the trial court that the seat belt was not used and a direction that the failure to use it could be considered by the jury to reduce the verdict to the extent that the injuries might be said to have been occasioned by the failure to use the seat belt. The jury was invited to make a determination without any evidence upon which to base that determination. They were also invited to apportion the damages without any medical evidence one way or the other on the issue of her injuries or damages properly apportionable. Apportionment is improper where there is no reasonable means of apportionment or no standard by which apportionment can be made as shown by the evidence. Maddux v. Donaldson, 362 Mich 425, 108 NW2d 33, 100 ALR2d 1; Osinski v. Benson, 323 Ill App 562, 56 NE2d 665; Borst v. Langsdale, 8 Ill App2d 88, 130 NE2d 520. That rule de-fuses the instruction here given.

Its giving, however, cannot be said to have affected the question of liability because the subject matter of the instruction has no relationship to liability or its determination. On the issue of damages, if the plaintiff used the seat belt then the injuries shown by this record were in spite of the seat belt and the jury had no reason to consider the question. If, on the other hand, it is the defendant’s theory that the plaintiff did not use the seat belt and that such failure increased the injuries which she sustained, such theory is devoid of evidentiary foundation. “. . . [T]he lifeblood of a legal theory is facts and if there are no facts supporting the theory, it is error to instruct on that theory.” Shore v. Turman, 63 Ill App2d 315, 321, 210 NE2d 232, 235.

The defendant further contends that the plaintiff can’t complain of the instruction because she offered a mechanic as an expert on seat belts and over defendant’s objection he was permitted to testify as to his weight, his height and as to the effect of the seat belt when the seat was forward and back. His testimony is not correlated to the height or the weight of the plaintiff nor to whether the seat was forward or back at the time of the accident. This evidence does not identify with any issue in this record. The testimony is devoid of probative value in this case and furnishes no basis for the instruction here given. The defendant’s motion to strike such evidence should have been allowed and the instruction on seat belts refused.

We cannot say on this record that the instruction so given did not affect the jury’s verdict on the damage issue and accordingly this case must be and it is hereby reversed and remanded for a new trial on the issue of damages only.

Reversed and remanded.

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


text:
    Robert Walker, Plaintiff, v. Service Liquor Store, Inc., a Corporation, Defendant. Service Liquor Store, Inc., a Corporation, Third-Party Plaintiff-Appellant, v. Steven W. Clem, Third-Party Defendant-Appellee.
    Gen. No. 11,164.
    Fourth District.
    February 17, 1970.

      Harold A. Baker, Timothy 0. Madigan, Hatch, Corazza, Baker & Jensen, of Champaign, for appellant.
    John C. Bergstrom, of Urbana, for appellee.
   SMITH, J.

May a dramshop keeper seek indemnity from an intoxicated person for damages paid by such keeper resulting from the willful, deliberate and malicious acts of an intoxicated person ? Sitting in the first district, this court answered this question in the affirmative. Geocaris v. Bangs, 91 Ill App2d 81, 234 NE2d 17. Here, as there, we deal only with the sufficiency of the complaint seeking indemnity. Here, as there, we must take the facts alleged in the complaint as true. The trial court dismissed the third-party complaint and entered a judgment that the dramshop keeper take nothing by his suit, and this appeal followed. We adhere to the principles stated in Geocaris and must reverse and remand to the trial court for further proceedings.

The complaint alleges in substance that the defendant, Clem (then 18 years of age), purchased intoxicating liquor from the defendant package liquor store. Two days later he positioned himself on a bridge above the northbound lane of traffic on an interstate highway and dropped an automobile wheel and tire through the windshield of a car below. Its driver, the plaintiff (Walker), lost control of his car and sustained severe injuries and the loss of sight in one eye. Walker sued the package liquor store for injuries caused by an intoxicated person under the provision of our Dram Shop Act, Ill Rev Stats 1967, c 43, § 135. Service, the liquor store, sued Clem in a third-party complaint in event Walker should be successful against it in his damage suit. If Service wins in Walker’s suit against it, there is no need for indemnification and the issue becomes moot. We noted in Geocaris, however, that a third-party complaint need not establish an absolute right to recovery but need only show a possibility of recovery. In Miller v. DeWitt, 37 Ill2d 273, 226 NE2d 630, our Supreme Court suggests that a third-party complaint should not be dismissed unless it appears from the pleadings that in no event could the third-party plaintiff have an action over against the third-party defendant.

The principal thrust of the appellee’s argument is that Geocaris is contrary to the public policy established by the legislative and decisional law in this State and should be repudiated. The position is in substance that the financial burdens for injuries caused by intoxication or in consequence of intoxication caused in whole or in part by the use of intoxicating liquors should be borne by the liquor industry which profits therefrom. Coffey v. ABC Liquor Stores, Inc., 13 Ill App2d 510, 142 NE2d 705; McDonald v. Trampf, 49 Ill App2d 106, 198 NE2d 537; Tresch v. Nielsen, 57 Ill App2d 469, 207 NE2d 109; Cunningham v. Brown, 22 Ill2d 23, 174 NE2d 153.

The Dram Shop Act neither permits nor precludes indemnification. Thus its precise terms do not answer the problem of indemnification. The Dram Shop Act prohibits a sale to or a purchase by anyone under 21 years of age and this applies to a female who, for most other purposes except voting, is considered an adult at 18. It is thus clear that the legislature has not based its public policy solely on minority. We have noted that Clem was a male, 18 years of age. He was a wrongdoer under the Dram Shop Act by purchasing the liquor. The vendor likewise was a wrongdoer by selling to him. Both are subject to the criminal sanctions imposed by the Act, but such sanctions have no relationship to civil responsibility or civil liability.

In Prosser, Law of Torts, 3d ed 1964, § 48, p 281, it is stated:

“Indemnity is a shifting of responsibility from the shoulders of one person to another; and the duty to indemnify will be recognized in cases where community opinion would consider that in justice the responsibility should rest upon one rather than the other. This may be because of the relation of the parties to one another, and the consequent duty owed; or it may be because of a significant difference in the kind or quality of their conduct.”

Illinois has recognized a difference in the kind and quality of tortious conduct in declaring that Illinois does not allow contribution among joint tort-feasors, but it does allow a passively negligent tort-feasor to obtain indemnification from an actively negligent tort-feasor. Miller v. DeWitt, 37 Ill2d 273, 226 NE2d 630. It appears from the record here that the defendant, Clem, is now serving a five-year term of probation after a conviction on charges arising out of his conduct herein and that included as a condition of such probation was an order for restitution by the defendant of certain of the plaintiff’s damages. This record thus establishes that the activity of Service was passive and the activity of Clem was willful, intentional, deliberate and actively tortious.

In both Geocaris and here, it is scarcely debatable but that the conduct of the third-party defendant is more reprehensible than that of the third-party plaintiff. We need not search for a specific preexisting peg upon which to hang our hats and justify indemnification. We find it difficult to suggest that the liquor store and Clem were concurring tort-feasors. The sale took place on December 24. The drinking and the actions of Clem took place two days later. It flies in the face of actuality to say that the two acts of the two defendants were concurrent. It is equally disruptive of actuality to suggest that this case is an effort to seek contribution among joint tort-feasors. The suit is predicated upon the proposition that the liquor store sold without knowledge of the minority of the defendant (if that makes any difference) and seeks total indemnification from the defendant. As we understand the case, it does not seek an apportionment of the damages between the two so-called wrongdoers, but seeks total indemnification by one against the other for the wrongdoing of the latter who, as the pleadings here suggest, is the primary moving proximate cause of such injury or damage. In Sargent v. Interstate Bakeries, Inc., 86 Ill App2d 187, 229 NE2d 769, it was noted that the law searches constantly for the imposition of burden commensurate with fault. In DeWitt, Sargent and Geocaris, we dealt with pleadings. We adhere to the views stated in Geocaris that unless it appears from such pleadings that in no event could the third-party plaintiff have an action over against the third-party defendant the issues should go to the jury to determine the respective rights and liabilities of the third-party plaintiff and the third-party defendant inter se. This cause is accordingly reversed arid remanded for proceedings consistent with this opinion.

Reversed and remanded.

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


text:
    Sharon Enloe, Plaintiff-Appellee, v. Nora Kirkwood, Defendant-Appellant.
    Gen. No. 69-8.
    Fifth District.
    February 18, 1970.

      Walker J. Henry, of Lawrenceville (Jack E. Horsley and Richard F. Record, Jr., of Mattoon, of counsel), for appellant.
    Carr, Raffaelle & Cook, of East St. Louis (Rex Carr, of counsel), for appellee.
   GOLDENHERSH, J.

Defendant appeals from the judgment of the Circuit Court of Lawrence County, entered upon a jury verdict in the amount of $150,000.

As her first ground for reversal defendant contends the trial court erred in denying that portion of her post-trial motion which sought arrest of judgment.

Plaintiff’s complaint as amended alleges that plaintiff was riding as a passenger in an automobile driven by defendant, was not guilty of any wilful or wanton acts which contributed to her injury, that defendant committed one or more of the following wilful and wanton acts:

“4. That on or about said time and place the defendant committed one or more of the following wilful and wanton acts:

“(a) With a conscious disregard for substantial risk to the safety of other persons,
including plaintiff, she wilfully and wantonly drove said automobile off of the highway onto the shoulder at high speed.
“(b) With a conscious disregard for substantial risk to the safety of other persons, including plaintiff, she wilfully and wantonly failed to keep the automobile she was driving under proper control.
“(c) With a conscious disregard for substantial risk to the safety of other persons, including plaintiff, she wilfully and wantonly failed to keep a proper lookout for conditions and hazards of the highway.

“5. That as a direct and proximate result of one or more of the foregoing wilful and wanton acts or omissions on the part of the defendant, the defendant drove her said automobile off of the left side of said highway, causing said automobile to crash and tumble, and tossing the plaintiff to and fro against divers hard surfaces of said automobile, causing plaintiff to sustain severe and permanent injuries, . . .

We have examined the many authorities cited by the parties and conclude that under the authority of Larson v. Harris, 77 Ill App2d 430, 222 NE2d 566 (affirmed 38 Ill2d 436, 231 NE2d 421), the complaint stated a cause of action, and the trial court correctly refused to arrest judgment.

Defendant next contends the trial court should have entered judgment notwithstanding the verdict.

The testimony shows that on January 9, 1965, plaintiff and defendant, both 17 years of age, had gone to a movie in Vincennes, Indiana. After the movie they went to a drive-in restaurant. Defendant drove away from the drive-in with a milk shake container held between her legs.

Joel Townsend testified he saw defendant’s automobile in Vincennes, Indiana. He observed two girls in the front seat, and noticed they had a container that would “contain some kind of Coke or a milk shake,” that was passed between them. He preceded defendant’s car onto Route 50 and as he drove west defendant’s automobile followed him at a distance of approximately 100 yards. His speed did not at any time exceed 55 miles per hour, both cars were in the right-hand lane, as he approached the Lawrenceville exit from Route 50 defendant’s car moved to the left and went off the shoulder. At this point the highway makes a gradual curve to the right and there is a deep ravine sloping down on the left side of the road. He described defendant’s move to the left as a movement one would expect if it were moving to the left to pass another car. The speed limit at this point is 70 miles per hour.

Defendant testified the condition of her health, vision and eyesight prior to the occurrence was good, and she had had a good night’s sleep the night before. She was thoroughly familiar with the highway, her headlights were on, and she could see the traffic clearly in front of her. She passed no vehicle and none passed her. She was watching the road, did not fall asleep, but cannot remember anything from the time she crossed the bridge in Vincennes until she became conscious in the ditch after the occurrence. She thought that sometime during the accident the statement “Look out Jane” either passed through her mind or was spoken by plaintiff.

Plaintiff had no recollection of driving from Vincennes to the scene of the accident.

John Fahnestock, Chief of Police at Lawrenceville, testified he went to the scene and investigated the occurrence. He stated that the distance from where the automobile left the pavement to where it was later observed was 144 feet, and the distance, perpendicularly, from the car to the edge of the pavement, was 65 feet. The shoulder at that point is approximately 8 to 10 feet wide. There were no skid marks on the pavement but there were automobile tracks on the shoulder at about a forty-degree angle. The exit to Lawrenceville is on the left-hand side of the westbound two-lane section of Route 50. An automobile approaching the exit from the east encounters a “sweeping curve” to the right, after which the highway is straight for about 150 yards and then turns to the left. Mr. Fahnestock testified that in answer to his inquiry as to what happened, defendant stated she did not know, she was just driving down the highway and all of a sudden they were off the highway.

The witnesses are in agreement that the weather was cold and clear, the pavement dry, and the time of the occurrence shortly after 9:30 p. m.

The testimony shows an occurrence strikingly similar to that in Larson v. Harris (supra). Applying the rule of Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504, we hold the trial court correctly denied defendant’s motion for judgment n. o. v.

Defendant urges as grounds for reversal that “numerous errors occurred during the trial with regard to the trial court’s rulings on admission or exclusion of evidence which taken separately or in the aggregate irremediably prejudiced this defendant . . . .” We have examined the errors complained of, and with one exception, they are not designated with sufficient specificity in the post-trial motion to preserve them for review, County Board of School Trustees of Macon County v. Batchelder, 7 Ill2d 178, 130 NE2d 175; Williams v. Brown Mfg. Co., Inc., 93 Ill App2d 334, 365, 236 NE2d 125.

In her post-trial motion defendant states:

“17. The Court erred in allowing testimony of medical experts as to the question of fertility of plaintiff and her purported future inability to have children when there had been no foundation laid by the evidence that plaintiff ever had any fertility or could ever have had children, all of which was objected to repeatedly throughout the testimony of said medical experts.”

In the absence of evidence to the contrary, plaintiff is presumed to have had the capacity to bear children. Roedler v. Vandalia Bus Lines, Inc., 281 Ill App 520.

Defendant contends plaintiff’s counsel’s closing argument was “so grossly improper that it caused a deterioration of the judicial process and deprived defendant of a fair trial.” The record shows that in the opening portion of plaintiff’s attorney’s argument two objectians were made. One objection was sustained and the overruling of the other is neither set forth in the post-trial motion nor argued in defendant’s brief. In closing argument there were two objections, one of which was sustained. The other involved counsel’s discussion of an instruction and the court overruled it. What distinguishes this case from Mattice v. Klawans, 312 Ill 299, 143 NE 866, cited by defendant, is that here counsel did not misstate the law. Furthermore, his comments were a reasonable response to defense counsel’s argument as to what constitutes wilful and wanton misconduct.

We have considered defendant’s many contentions with respect to allegedly flagrant instances of counsel’s misconduct to which no objection was made. The rule governing review of assignments of error based upon alleged improper argument to the jury is clearly stated in Belfield v. Coop, 8 Ill2d 293, 134 NE2d 249. The character and scope of argument to the jury is left very largely to the trial court, and every reasonable presumption must be indulged in that the trial court has performed his duty and properly, exercised the discretion vested in him. North Chicago St. R. Co. v. Cotton, 140 Ill 486, 29 NE 899. The attitude and demeanor of counsel and the general atmosphere of the trial are observed by the trial court, and cannot be reproduced in the record on appeal. The trial court is, therefore, in a better position than a reviewing court to determine the prejudicial effect, if any, of a remark made during argument, and unless clearly an abuse of discretion, its ruling should be upheld. City of Chicago v. Chicago Title & Trust Co., 331 Ill 322, 163 NE 17. In determining that there was here no abuse of discretion resulting in prejudice to the defendant, we note she does not charge error in instructing the jury, nor does she contend the verdict is excessive.

We find no error requiring reversal and the judgment of the Circuit Court of Lawrence County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


text:
    Robert Conner, Plaintiff-Appellant, v. Illinois Bell Telephone Company, Defendant-Appellee.
    Gen. No. 69-155. (Abstract of Decision.)
    Second District.
    February 20, 1970.
    Thomas L. Ruth, Jr., of Barrington, for appellant;
    Fuqua, Fuqua, Winter & Homer,-of Waukegan, for appellee.
   Opinion by JUSTICE ABRAHAMSON. Not to be published in full.


author: MR. PRESIDING JUSTICE DAVIS

text:
    Linda Collings, Plaintiff-Appellant, v. Robert Collings, Defendant-Appellee.
    Gen. No. 69-123.
    Second District.
    February 20, 1970.

      Berry, Simmons and Coplan, of Rockford, for appellant.
    Victor and Gaziano, of Rockford, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal from a post-divorce decree child custody order entered May 14, 1969, in the above-entitled proceeding.

The divorce decree, which granted custody of Robert, then eight years old, to the plaintiff, was entered July 3, 1968, on the ground of mental cruelty. It found that the plaintiff was a fit and proper person to have the care, custody and control of Robert, and unconditionally awarded such custody to her.

The defendant, the former husband of the plaintiff and the father of the child, Robert, filed a petition wherein he prayed that he be granted the custody of his son.

The evidence, submitted on behalf of the defendant for a change of custody, indicated that the plaintiff was going with Sam Ely, a man who was married but in the process of obtaining a divorce, and who, at the time, was living with two other men in an apartment. There were times when the plaintiff and her son stayed overnight at Ely’s apartment in Beloit, Wisconsin. On these occasions, the plaintiff and Ely had entertained friends, and the plaintiff did not want to awaken her son late at night to return to Rockford. On these evenings, she slept with her son.

The evidence also indicated that Ely had stayed in the plaintiff’s apartment overnight on ten occasions, and that both the plaintiff’s father and Robert, her son, were there at these times. After leaving work, the plaintiff, accompanied by Robert, would often meet Ely late in the afternoon at a neighborhood tavern in Beloit. On these occasions, the boy played with other children who lived upstairs. Apparently, the plaintiff and the defendant had also taken Robert there prior to their divorce.

The defendant saw Robert often. He cared for him two nights a week — while the plaintiff was in school and when she had her hair set. The defendant is now married to a woman who has five children, ages six to eleven, and they live in a ranch home with five bedrooms, three on the first floor and two in the basement.

While the provisions relative to child custody in a divorce decree are always subject to modification by the court, this does not mean that there is no permanence or finality to the custody orders in such a decree. In the absence of proof that the welfare of the child requires a change in its custody, permanent custody should not be subject to constant or spasmodic variation, where the decree granting custody was not conditional with reference to changes therein enumerated. Dunning v. Dunning, 14 Ill App2d 242, 247, 144 NE2d 535 (1957); Wade v. Wade, 345 Ill App 170, 181, 102 NE2d 356 (1951). Where a child’s welfare is at stake, care must be taken that its welfare is not impaired by being shuttled between contesting parents. Jenkins v. Jenkins, 81 Ill App2d 67, 74, 225 NE2d 698 (1967).

In Thomas v. Thomas, 233 Ill App 488 (1925), at page 493, the court stated the rule regarding change of custody, as follows: Also see: Nye v. Nye, 411 Ill 408, 416, 105 NE2d 300 (1952); Eggemeyer v. Eggemeyer, 86 Ill App2d 224, 231, 229 NE2d 144 (1967).

“A decree fixing the custody of a child is final on the conditions then existing and should not be changed afterwards unless on altered conditions since the decree, or on material facts existing at the time of the decree but unknown to the court, and then only for the welfare of the child.”

The divorce decree in the case at bar awarding the custody of Robert to the plaintiff was final as to the conditions then existing, and it should not have been altered unless there had been a substantial change of conditions thereafter, or unless there were existing material facts, unknown to the court, which affected Robert’s welfare. Hirth v. Hirth, 59 Ill App2d 240, 244, 207 NE2d 114 (1965); Bulandr v. Bulandr, 23 Ill App2d 299, 303, 162 NE2d 585 (1959).

The change of conditions which will justify altering the provisions of the decree for divorce as to custody, are not limited to conditions relating solely to the custodial parent, and evidence that he or she has become unfit for custody. Frank v. Frank, 26 Ill App2d 16, 19, 167 NE2d 577 (1960). The change of conditions warranting a modification of the custody decree are any which affect the welfare of the child. Nye v. Nye, supra; Eggemeyer v. Eggemeyer, supra; Hirth v. Hirth, supra. While not an inflexible rule, it is generally considered that the mother is the most beneficent custodian of a child of tender years, if she is a fit person. Nye v. Nye, supra, 414; Arden v. Arden, 25 Ill App2d 181, 189, 166 NE2d Ill (1960); Bulandr v. Bulandr, supra, 302.

While the defendant’s petition states only that the best interests of the child required that his custody be with the defendant, without stating any basis therefor, it is apparent from the record that the defendant intended to establish that there had been a substantial change of conditions in that the plaintiff had been guilty of immoral conduct which rendered her unfit to have the continued custody of Robert.

In Nye, supra, 415 and 416, the Court seemed to clearly indicate that even the fact of admitted adultery might not be sufficient to deprive a mother of custody. If there was no evidence that the imprudence was such as to be detrimental to the child’s welfare, such indiscretion alone may not be grounds for changing the custody of the child; it is the best interest of the child which is the guiding star. Jayroe v. Jayroe, 58 Ill App2d 79, 82, 206 NE2d 266 (1965).

There is no great factual dispute in this case. The plaintiff did spend several nights in Ely’s apartment when they had entertained others and the hour was late. She had Robert, her son, with her and slept with him. Likewise, Ely had spent nights at the plaintiff’s house, but at a time when both her father and Robert were present. While this conduct may not have been very prudent, it was not sufficiently indiscreet to deprive the plaintiff of the custody of her son, as unconditionally awarded to her in the final divorce decree.

The fact that she met Ely at a neighborhood bar in the afternoon and had Robert with her, does not suggest that his welfare would best be served by altering the custody. Both the plaintiff and the defendant had frequented the bar when they were married and had taken Robert with them. The boy, apparently, knew and played with several children who lived in the building. The other facts disclosed by the evidence are even less consequential.

The record in this case fails to show that the plaintiff neglected Robert. It does not show such changed conditions that his welfare would dictate a modification of the custody provisions of the divorce decree.

We are aware that the court talked to the child in chambers, with the approval of the parties. What was-said or discussed there was not made a part of the record and cannot, thus, be considered upon review. Stickler v.

Stickler, 57 Ill App2d 286, 291, 292, 206 NE2d 720 (1965).

After a careful study of the record, we are satisfied that the modification of the divorce decree as to custody of Robert was erroneous as a matter of law. Thus, the order of the trial court must be reversed.

Order reversed.

ABRAHAMSON and MORAN, JJ., concur.