author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Paul De Mario, Defendant-Appellant.
    Gen. No. 51,403.
    First District, Fourth Division.
    June 25, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman, Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Robert B. Rosen and Barth H. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.

       Ill Rev Stats (1965), c 38, § 9-1:
      Murder, (a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
      (1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
      (2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or

        (3) He is attempting or committing a forcible felony other than voluntary manslaughter.
      Ill Rev Stat (1967), c 38, § 18-1:
      Robbery, (a) A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.

   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSES CHARGED

Robbery and murder.

JUDGMENT

After a jury trial, defendant was found guilty of both offenses and was given concurrent sentences of 15 to 30 years for murder and 10 to 20 years for robbery.

POINTS RAISED ON APPEAL

(1) The State failed to prove the corpus delicti.

(2) Defendant was convicted through the use of inadmissible hearsay.

(3) Defendant was not proven guilty beyond a reasonable doubt.

(4) The court erred in admitting prejudicial and irrelevant testimony relating to the identification of a coin-dictee.

(5) The court erred in refusing to allow an instruction on reputation.

EVIDENCE

James W. Henry, for the State

He is a physician, a specialist in pathology, who performed the autopsy on John A. Baird. He found extensive areas of contusion, over both cheekbones, the jaw, both front and back of the neck, the upper chest, the backs of both hands, and the right wrist. The brain was swollen, with areas of hemorrhage on both sides, evidencing concussion. In his opinion, the immediate cause of death was aspiration pneumonia, with the underlying cause being trauma from the application of force. While a fall could result in injuries of this type, the distribution of the injuries could not substantiate a fall as the cause. The brain hemorrhages did not result from natural causes such as a stroke.

Philip Montalbano, for the State

He was a police officer who was called to 2856 N. Campbell about 5:40 p. m. on August 15, 1965. He went to the apartment of the caretaker, Mr. Baird. Baird, a small man about 5' 5" tall, was lying, on the cot. His face had bruise marks and blood, some congealed and some still bleeding under his eye. The witness tried to question Baird, but Baird was unable to give answers, only nodding his head, so he ordered a squadrol and had him taken to the hospital. The witness talked to a Mr. Cook at the apartment, and then looked for money in the dresser drawer but found none.

Edward Curtis, for the State

He was a homicide detective on August 15, 1965, when, after a conversation with Baird who was then in the hospital, he went with the owner of the building, Mr. Grant, to Baird’s apartment at about 9:00 p. m. The dresser drawers were all pulled open and objects were lying on the floor. A large amount of blood was on the bed’s blanket and pillow. In the folds of the blanket, he found an eyeglass lens covered with blood. He also found a pair of glasses, bent and bloody, with one lens missing.

On August 25 he arrested Guy Ramirez and defendant.

Sharon Smith Cramer, for the State

She had known defendant and Ramirez for approximately one month on August 15, 1965, and had seen defendant three or four times. Between 1:00 and 1:30 on that afternoon, she accompanied defendant and Ramirez to Candace Bergman’s house where they picked her up and then went for a ride. She had known Candy for two years. After driving for a while, defendant said that the car, a Mercury, was running low on gas, so they all transferred to a Chevrolet, at which point she met another friend of the defendant, named Butch. A brief discussion ensued concerning where the three boys could get some money. Ramirez said he knew where he could borrow some. They stopped at the corner of Elston and Campbell adjacent to the building (otherwise identified as the building in which Baird was living), and defendant and Ramirez got out of the car and entered the building. The others waited in the car, double parked. Then Butch also went into the building. When they came out, walking rapidly, the witness noticed scratches on Ramirez’ face which he didn’t have when he went in, and defendant had a bulge in his pocket which hadn’t been there before. Ramirez asked defendant how much he got and he said “fifty.” She asked if they could get something to eat, and Ramirez said, “Not around here.” They drove to where the Mercury was parked and all but Butch got back into the Mercury and drove to a pizza place.

On cross-examination, the witness testified that on September 10,1965, police came to her house and told her something of what had transpired on August 15, 1965, but not everything. They did not tell her she had seen defendant that night; she told them she had seen him when she got in the car, but she couldn’t believe “they would do anything like that.” She then went to the station house where she made a statement to the police. After first denying that she was in the same room when Candace Bergman had given a statement, she testified that Candy was at the other end of the same room; that she couldn’t hear what was said by Candy and that she “just didn’t pay any attention to her.” As they “drove by there” on the way to the police station, it all came back to her mind and she “remembered it.” Although the witness said she did not remember it, the State stipulated that she had previously testified (at the Ramirez trial) that Officer Mahoney had refreshed her recollection that the crime had occurred on August 15.

Candace Bergman, for the State

She had known defendant for four years and had been dating him occasionally for four months as of August 15, 1965, although she was married. On that day, defendant, Ramirez, Butch, and Sharon Smith Cramer came to her house at about 2:00 p. m. and they all went for a ride in a red Mercury, with defendant driving. Defendant mentioned something about saving gas, so they switched to a Chevy, with Butch driving. Defendant asked the girls if they knew where they could get any money, and was told that they did not. Ramirez said, “I know where we can get some money,” and told Butch to drive to Elston and Campbell. First defendant and Ramirez went in, and after five or ten minutes Butch went in. When they came out they acted very nervous and kept looking around. Ramirez had a scratch on his hand and some blood. Defendant had a bulge in his pocket. Ramirez asked him how much he got and he said fifty dollars. She and Sharon were dropped off at the witness’ house at about 6:00 p. m. Later, defendant came back and picked them up again.

She asked defendant if he had hurt anyone, and he said no, but the next evening he told her, “We beat up an old fellow.”

Two or three weeks later, police investigating the incident came to her house. They mentioned the date of the occurrence to her and briefly explained that the old man who had been beaten was now dead. They took her to the police station and she gave a statement. All the while (two or three hours) the police were questioning her, she thought that she was being charged with a crime. She had been told that charges wouldn’t be pressed if a statement were made. She reiterated that she was with defendant during both afternoon and evening of August 15.

During the week following the incident she went to defendant’s house, but, instead of finding him, talked to a girl living there who gave her a clipping which mentioned defendant’s arrest for murder.

Henry Cook, for the State

He lived in the building where John Baird, the caretaker, was beaten. On August 15, sometime after lunch, about 1:00 or 2:00 o’clock, he saw Guy Ramirez coming into that building. At the time he didn’t know his name, but he was acquainted with him because Ramirez had formerly lived in that building, they had talked to each other and had coffee together occasionally at a nearby restaurant. On August 15, as the witness was starting out the door of the building, Ramirez was coming in and they spoke to each other. Outside, he saw other people but didn’t pay any attention to them, as he was in a hurry on his way to Riverview Park, and he could not identify them, or defendant, as having been one of them. He wasn’t interested at the time.

Returning home at about 4:30 p. m., the witness went to the room of “Uncle John Baird” to see about paying rent. The door was open, and Baird was there in a beat-up condition, his face cut and bleeding. They had a short conversation in which Baird asked the witness not to call the police, that nothing had happened, that he had not been beaten, and that he had not fallen down the stairs. The witness, nevertheless, proceeded to telephone the police. When they came he did not tell them anything about Ramirez, but later he was taken to a lineup and identified Ramirez as having been at the building that Sunday.

Sharon Huhtala, for the State

She was living in the same apartment with Donna Hunt, Guy Ramirez and defendant on August 15, 1965. She got up about 11:30 a. m. Ramirez and defendant woke up sometime between 2:00 and 3:30 p. m. and left the apartment immediately. They returned the next morning between 7:00 and 8:00 a. m., changed clothes, and went out again. On August 17, she noticed marks on defendant’s arm and scratches on his shoulder. He said he received them at work, fighting with a girl. That same day she noticed some new leopard seat covers and a blinking tiger ornament in defendant’s car which he said were a gift. On August 15 she had asked him for money for groceries and he had said he didn’t have any, but on the 17th he paid $15 on a traffic ticket.

She and Donna were questioned by the police who told them that a 77-year-old man had been beaten up and killed, and Ramirez and defendant had mentioned their names. A few days later, “Candy” came around and inquired about defendant. She seemed surprised that he was in jail, and the witness gave her a newspaper clipping which had the names of Ramirez and defendant and the man’s name, “John.”

Marie Grant, for the State

She and her husband were the owners of the building in which Baird had lived and been employed by them as caretaker for 2½ years. He was 77 years old and weighed about 100 pounds.

Baird’s duties included the collection of rent for the apartments. She set up receipt books for the keeping of rent records in which Baird made entries showing dates the rents would fall due and dates of payment. She would see him several times a week and usually collected the rents on Sunday or Monday, or by Tuesday. Examination of the record book disclosed that he should have had $96 for rent collected during the week before August 15.

Carl Buchner, for the defense

Defendant is Vice President of an ice cream business which operates eleven trucks. He employed defendant for four years as a driver and for odd jobs. Defendant stocked the truck in the morning and turned in the receipts from sales at night. Defendant quit his job on August 10, 1965, to learn a trade.

He further testified:

Based on my contact with Paul, and what I have heard from fellow-employees, I have an opinion as to his reputation for being a peaceful and law-abiding citizen. As far as I know, Paul is very liked by everyone down there, including myself; never had any problems or trouble with anyone. He was very good.
I never discussed the defendant, Paul DeMario’s reputation with anyone.
State’s Attorney: Q. Did you ever discuss Mr. DeMario’s reputation for being peaceful and law-abiding, Mr. Buchner?
A. I can’t say in just those words; although at times we did say that — or I did say I was happy to have him.
Q. What I mean is you never heard anything about his reputation, did you ?
A. No. By the same token I never heard anything bad.
Q. Then, what you are testifying to now is really your opinion, from your own personal contact?
A. Well, yes.

Lucille Wilson, for the defense

She saw defendant at a picnic at about 10:30 p. m. on August 15, 1965.

Paul DeMario, defendant, on his own behalf

He did not beat or rob “that old man.” He was home on August 15 and did not wake up until early in the afternoon. Ramirez, Donna Hunt and Sharon Huhtala were there at that time. He left the apartment with Ramirez at about 3:00 or 4:00 p. m. and they drove around until about 6:30 p. m., when they saw Candace Bergman and Sharon Smith at Candace’s house. After leaving the employment of Mr. Buchner, for whom he had worked for four years, he obtained work through a day labor office, at Victor Gasket Company, but he did not work on August 14 through 18. (His testimony on this point was confusing, as later on he mentioned a different employer’s name and said that he worked there on Monday [sic], August 17.) He paid a traffic ticket on August 17, but he did not buy the leopard seat covers until the 24th or 25th, the date of his arrest. He had known Ramirez for about 3 years. He did not leave his company on Sunday, the 15th; they stayed out all night and until time to go to work Monday night.

OPINION

(1) Defendant contends that the State failed to prove the corpus delicti. The corpus delicti in a murder case consists of two elements: (a) the fact of death; and (b) that the death was caused by a criminal agency. People v. Willson, 401 Ill 68, 76-77, 81 NE2d 485. The testimony of the police officers and Dr. Henry’s autopsy constituted sufficient proof of the corpus delicti in this case. This evidence supports the State’s theory that the victim died as a result of a beating administered by an assailant. Where the fact of death is proved by direct evidence, the criminal agency of the defendants may be established by circumstantial evidence. People v. Hotz, 261 Ill 239, 103 NE 1007.

There is also ample circumstantial evidence that a robbery took place, and this, too, is sufficient. People v. Fedora, 393 Ill 165, at 176, 65 NE2d 447. Both the police officer at the scene and the detective investigating the crime found no trace of money, and noted that the room was in a dishevelled state. Moreover, Mrs. Grant, the co-owner, testified that, according to the receipt records, Baird should have had about $96 in rent money on August 15, 1965. This is corroborated by the testimony of the two girls, Candace Bergman and Sharon Cramer, who noticed a bulge in defendant’s pocket when he came out of the building, and heard him tell Ramirez that he got “fifty.”

(2) Defendant contends that he was convicted through the use of inadmissible hearsay evidence. The objection is to this testimony by Mrs. Grant:

Q. On the basis of examining the record or receipt book on or about August 16th, did you form an opinion how much rent had been collected in the week before that?
A. Yes, sir, for the apartments that were rented he should have had $96.

The record referred to was shown to have been set up by her and kept by Baird under her supervision to keep track of rentals due and their dates of payment. While this might have been sufficient foundation for admission of the record into evidence, that question need not be decided, as the record itself was not offered.

A witness may, however, testify by referring to a memorandum, even though it may not be admitted or admissible into evidence, by stating the facts as he then recalls them. Furthermore, the witness need not have prepared the memorandum. Scovill Mfg. Co. v. Cassidy, 275 Ill 462, at 472, 114 NE 181. The record does not show clearly that an objection was made to Mrs. Grant’s testimony on the ground which is now raised in this court. This, of course, would in itself preclude arguing the point here. In any event, defense counsel had a right to inspect the record, and to cross-examine Mrs. Grant regarding it, and he did neither. We find in this contention no basis for reversal.

(3) Defendant contends that the evidence does not establish his guilt beyond a reasonable doubt, but we conclude that it does.

Defendant was placed at the scene of the crime at the time of its occurrence through the testimony of Candace Bergman and Sharon Cramer. Defendant himself said that he was in the company of Guy Ramirez throughout the entire day, and Henry Cook testified that he had seen Ramirez, with whom he was acquainted, going into the building shortly before the crime. To be sure, defendant said that his association with Ramirez did not start that day until 3:00 or 4:00 p. m., but that was not a significant discrepancy in time with the other witnesses, or, if it were considered so, was disbelieved by the jury and the court. The testimony of Sharon Huhtala, the girl who lived with defendant, added to defendant’s involvement in that she noticed defendant’s acquisition of money (which he did not previously have) for the purchase of seat covers for his automobile and the payment of a traffic ticket on August 17. Also, on August 17, she noticed marks on defendant’s arm and scratches on his shoulder which he explained as resulting from a fight at work, yet defendant, in part of his testimony, denied having worked on August 14, 15, 16 or 17. Both Bergman and Cramer told of having noticed that when defendant came out of the building he had a bulge in his pocket which had not been there before. And they both related that, in answer to a question by Ramirez, defendant said that he had gotten “fifty.” In addition, Bergman testified that the next day defendant told her, “We beat up an old fellow.” Defendant urges us to question the truth of both Bergman’s and Cramer’s testimony in light of their admission that each was under the impression that she was threatened with arrest when initially confronted by police. The record does not bear this out as to Cramer. However, both witnesses testified under oath at the trial, and the jury had the best opportunity to evaluate their credibility and the weight to be given to their testimony. The primary responsibility of the jury, rather than this court, in this regard is a proposition so firmly based in the law as to require no citation of authority.

The actions of the police officers in this situation were no more than a reasonable exercise of their duties and well within the limits of due process. People v. Miller, 13 Ill2d 84, 96-97, 148 NE2d 455. They questioned the witnesses, who were initially unclear about the details, but remembered more clearly as they were asked questions pertaining to the event.

It is also understandable why the State’s witness Cook was unable to identify defendant as one of the people he observed outside the building when he had seen Ramirez going through the doorway. People v. Betts, 101 Ill App 2d 322, 243 NE2d 282, is not controlling in this factual situation.

(4) The defendant also argues that there was prejudicial and irrelevant testimony admitted relating to his association with a codefendant, because witness Cook was allowed to testify about having seen Guy Ramirez at the building on the day in question, and to view a photograph of Ramirez for purposes of identification. Cook knew Ramirez by sight, but not by name. The trial judge, at a conference in chambers, overruled an objection to this testimony, stating that it was admissible in substantiation- of other testimony placing the two together on the day of the crime. We believe the ruling to have been correct. People v. Wilson, 1 Ill2d 178, at 188, 115 NE2d 250.

(5) Lastly, defendant contends that the court erred by refusing to allow an instruction on reputation. Defendant’s employer, Buchner, testified as to his own good opinion of defendant. He also said, however, that he had never discussed defendant’s reputation with anyone, nor had he heard anything, either good or bad, about his reputation. At the conclusion of his cross-examination he stated that what he was testifying to was really his own opinion, based on his own personal contact with defendant.

Evidence of reputation must be limited to the witness’s knowledge of another person’s reputation, and cannot be admitted if it shows merely the existence of favorable traits of character deduced by the witness solely from his personal knowledge and observation. People v. Willy, 301 Ill 307, 133 NE 859; People v. Reeves, 360 Ill 55, 195 NE 443. Reputation testimony, to be admissible circumstantially, must be based upon the witness’s association with defendant’s neighbors and friends. People v. Shelton, 388 Ill 56, 57 NE2d 473; People v. Reeves, 360 Ill 55, 195 NE 443. We conclude that the testimony of Buchner was insufficient to justify the giving of an instruction to the jury on this subject, and that the trial court correctly refused to do so.

DECISION

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER, P. J. and McNAMARA, J., concur.

       Ramirez was tried separately, found guilty by a jury, and sentenced to terms of 5 to 10 years for robbery and 14 to 15 years for murder. These convictions were affirmed by another division of this court in People v. Ramirez, 92 Ill App2d 341, 235 NE2d 412.


source: Caselaw Access Project

author: MR. JUSTICE ABRAHAMSON

license: Public Domain

text:
    J. C. Muehlfelt, Harold J. Muehlfelt, Dean Muehlfelt, and Ronald Muehlfelt, d/b/a J. C. Muehlfelt and Sons, Plaintiffs, v. Lydia Vlcek, a/k/a Lydia Petrauskas, Charlotte A. Petrauskas, Adeline A. Kimbark, Frank J. Vlcek, Northwestern Mutual Insurance Company, and Bales Lumber and Supply, Inc., Defendants; J. C. Muehlfelt, Harold J. Muehlfelt, Dean Muehlfelt, and Ronald Muehlfelt, d/b/a J. C. Muehfelt and Sons, Plaintiffs-Appellants, v. Northwestern Mutual Insurance Company, Defendant-Appellee.
    Gen. No. 68-184.
    Second District.
    July 31, 1969.

      Vescelus, Leetz, Perry & Pollard, and Ronald J. Cian-do, of Wheaton, for appellants.
    Clausen, Hirsh, Miller & Gorman, of Chicago for appel-lee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

On May 29, 1964, the plaintiffs entered into an oral contract with Frank J. Vlcek and Lydia Vlcek whereby they agreed to furnish the necessary labor and material to move a house onto property owned by the Vlceks in DuPage County. The plaintiffs completed the work to be performed by them on October 19, 1964, and submitted their bill for $6,000, the agreed consideration. When no payment was received, the plaintiffs filed their contractor’s claim for a lien on the property with the Recorder of Deeds of DuPage County on December 30, 1964. On May 23, 1966, suit was brought to foreclose the lien with Lydia Vlcek, Frank Vlcek, Charlotte Petrauskas and Adeline Kimbark named as defendants.

Prior to these events, Adeline Kimbark, Charlotte Petrauskas, and Lydia Vlcek (then known as Lydia Petrauskas) had, on November 22, 1957, mortgaged the property, including a residence then located on it, to First Federal Savings and Loan Association of Berwyn to secure a loan obtained from them. On May 6, 1964, a fire destroyed the residence. Northwestern Mutual Insurance Company had insured the property against loss by fire but because of a dispute as to its cause, denied liability to the owners. Northwestern did, however, pay the existing balance on the obligation to First Federal and received an assignment of the mortgage on December 31, 1964. Both the mortgage and assignment were recorded before the foreclosure was instituted.

On November 20, 1967, default orders were entered .against the Vlceks, Adeline Kimbark and Charlotte Petrauskas for their failure to either answer or appear to the summons served on them. The plaintiffs then, on December 4, 1967, presented a motion, apparently granted instanter, for leave to add Northwestern as an additional party defendant and to amend their complaint to include an allegation that the lien of the mortgage was subject and inferior to their mechanic’s lien. Northwestern answered the amended complaint, denied that the mortgage was an inferior lien, and raised as an affirmative defense the failure of the plaintiffs to commence suit against them within two years of the completion of their contract as required by the Mechanics’ Lien Act.

On July 15, 1968, Northwestern presented a motion for summary judgment pursuant to section 57 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 57) based on the same grounds alleged in their affirmative defense. On October 1, 1968, the trial court entered an “Order and Decree” that found that the plaintiffs had failed to bring suit against Northwestern within the two-year limit and as a consequence their lien was “postponed” to the mortgage and granted the motion for summary judgment. The decree further found that there was still due and owing Northwestern the sum of $7,491.64 for the unpaid principal on the original obligation paid by them and taxes and that Northwestern had a first mortgage lien against the premises in that amount to be paid first from the proceeds of any sale.

Section 9 of chapter 82 of the Mechanics’ Lien Act (Ill Rev Stats 1967, c 82, § 9) provides in part as follows :

“If payment shall not be made to the contractor having a lien by virtue of this act of any amount due when the same becomes due, then such contractor may bring suit to enforce his lien by complaint or petition in any court of competent jurisdiction in the county where the improvement is located .... Such suit shall be commenced . . . within two years after the completion of the contract. . . ."

It is well known that the rights afforded by the Mechanics’ Lien Act are in derogation of the common law and must be strictly construed. D. D. Kennedy, Inc. v. Lake Petersburg Ass’n, 54 Ill App2d 85, 101, 203 NE2d 145; Roth v. Lehman, 1 Ill App2d 94, 97, 116 NE2d 413. The provision that suit must be brought within two years of the completion of the contract is not just a limitation on the remedy afforded in the Act but is a condition to the right itself. North Side Sash & Door Co. v. Hecht, 295 Ill 515, 520, 129 NE 273; Anderson v. Gousset, 60 Ill App2d 309, 313, 208 NE2d 37. It is necessary to file suit within the time provided to invoke the jurisdiction of the court. If a contractor does not file his suit within the two years, he has not availed himself of the special rights conferred by the legislature and he has, in effect, no right to a lien.

The plaintiffs do not quarrel with this proposition of law but contend that once the suit is filed the jurisdiction of the court has been invoked and the matter should then proceed in accordance with the provisions of the Civil Practice Act including the liberal provisions for the joinder of parties and amendment to pleadings. (Ill Rev Stats 1967, c 110, §§ 26 and 46(1).)

Section 26 of the Civil Practice Act provides that new parties may be added to a cause at any stage of the proceeding in the interests of justice and section 46(1) provides that amendments may be allowed at any time before final judgment. Since their suit was filed within two years after the completion of the contract, the plaintiffs argue that the trial court should have permitted the joinder of Northwestern as a party defendant.

Heretofore, it has been consistently held in Illinois that suit has not been “commenced” against other lien-holders in a mechanic’s lien foreclosure until such time as they are made party defendants: Dunphy v. Riddle, 86 Ill 22, 26; Clark v. Manning, 95 Ill 580, 582; Love, Illinois Mechanics’ Liens, 2nd ed, § 80, p 228; Illinois Law and Practice, Vol 26, Mechanics’ Liens, § 160. If the mechanic’s lien claimant has failed to make the lien-holder a party defendant before the expiration of the time limit, that defense is available to the lienholder notwithstanding that the suit has been filed against the owners within two years of the completion of the contract.

Some confusion on this point has been created by the cases of Nupnau v. Hink, 53 Ill App2d 81, 203 NE2d 63, reversed in 33 Ill2d 285, 211 NE2d 379, and Anderson v. Gousett, 60 Ill App2d 309, 208 NE2d 37. In the Nupnau case, suit was brought to contest a will by the beneficiaries under a prior will. Section 90 of the Probate Act (Ill Rev Stats 1961, c 3, § 90) provided that such suit must be filed within 9 months after the will has been admitted to probate and section 91 (Ill Rev Stats 1961, c 3, § 91) states that the executor and “all heirs, legatees and devisees of the testator shall be made parties to the suit.” The suit had been filed within the time prescribed but six heirs of the testator were not made defendants and the trial court dismissed the complaint on that basis. On appeal, the plaintiffs argued that since they had filed suit within the alloted time that they should have been permitted to add the other heirs as party defendants by amendment after the expiration of the nine months and relied on the case of Krunfus v. Winkelhake, 44 Ill App2d 124, 194 NE2d 24, to the effect that a stringent enforcement of section 90 would conflict with the provisions of sections 46 and 26 of the Civil Practice Act. The Appellate Court stated that the time provision in section 90 was more than a statute of limitations but “a condition precedent to liability which must be complied with if the jurisdictional grant of the statutes is to be invoked. This characteristic emerges from the fact that the cause of action is a creature of the legislature and not a codification of a common-law right.” The court then ruled that the trial court had no right to permit the addition of necessary parties after the expiration of the time limitations under either sections 26 or 46(1) of the Civil Practice Act despite the ruling of the Krunfus case.

In the Anderson case, suit was brought under the Mechanics’ Lien Act to foreclose a claim within two years of the completion of the contract but failed to name the wife of the owner of the property as a party defendant. The trial court refused to permit the joinder of the spouse after the expiration of the time limitation and dismissed the complaint. The Appellate Court affirmed the trial court and held that the conclusions of the Nupnau case were “. . . applicable equally to mechanics’ lien cases ... .” and that neither sections 26 or 46 of the Civil Practice Act could permit the addition of party defendants to a mechanic’s lien foreclosure after the expiration of two years except under the conditions enumerated in section 46 (4).

Section 46(4) provides that a cause of action will not be barred by lapse of time as limited by statute under certain circumstances if all of the conditions specified in that section exist including the condition that the party was served by summons within the permitted time but in the wrong capacity. This section was recently added to change the rule enumerated in Fitzpatrick v. Pitcairn, 371 Ill 203, 20 NE2d 280.

Our present problem appeared when the Supreme Court reversed in Nupnau v. Hink, 33 Ill2d 285, 211 NE2d 379. In its opinion, the Supreme Court held that the jurisdiction of the court had been properly invoked when the complaint was filed within 9 months as required by section 90 of the Probate Act and that the failure to make all necessary persons party to the suit within the time period was not fatal since the proceeding did not seek “. . . to secure a personal judgment against individual defendants but simply to set aside a will. ...” A dissent was filed that pointed out that the cases cited as authority in the majority opinion involved situations contemplated by section 46 (4).

In Nupnau, the omitted heirs of the testator had nothing to lose by the plaintiffs’ efforts to set aside the will. Therefore, the failure to name them as party defendants within the nine months had no practical effect on their interest. In a mechanic’s lien foreclosure, the claimant seeks to subordinate the interest of all other lienholders properly brought before the court to the interest of his lien.

We do not feel that the ruling of the Supreme Court in Nupnau would justify a modification of what has been long settled in the law of mechanics’ liens. The cases are clear that a mechanic’s lien foreclosure is not “commenced” against other lienholders until such time as they are made parties to the action, except in those situations covered by section 46(4) of the Civil Practice Act.

Accordingly, we agree with that portion of the order of the trial court that held that the plaintiffs were not entitled to subordinate the interests of Northwestern to their lien. However, the order further found that Northwestern had a first mortgage lien that was to be satisfied from any sale of the premises. As we have seen, the owners of the property had been defaulted before the plaintiffs sought to join Northwestern as a party defendant. There is nothing in the record to indicate that the owners received any notice of the subsequent proceedings or copies of the pleadings nor do the pleadings themselves contain a prayer for the relief included in the decree. Since the owners were entitled to notice under Supreme Court Rule 105 (Ill Rev Stats 1967, c 110A, § 105) we do not feel that the portion of the decree that found that Northwestern had a valid first mortgage on the premises was correct.

Therefore, in accordance with the opinion herein expressed the decree of the trial court will be affirmed in part and reversed in part.

Affirmed in part, reversed in part.

MORAN, P. J. and SEIDENFELD, J., concur.


author: GOLDENHERSH, P. J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Keith Stoafer, also known as Keith J. Stoafer, Defendant-Appellant.
    Gen. No. 68-68.
    Fifth District.
    July 22, 1969.
    Rehearing denied October 16, 1969.

      Edward Neville, Neville & Rice, of East St. Louis, for appellant.
    Ronald Niemann, State’s Attorney of Marion County, of Salem, for appellee.
   GOLDENHERSH, P. J.

In an indictment returned in the Circuit Court of Marion County, defendant, Keith Stoafer, also known as Keith J. Stoafer, was charged in Counts I and II with the crime of Murder (c 38, § 9-1, Ill Rev Stats 1967) and in Count III with the crime of Voluntary Manslaughter (c 38, § 9-2, Ill Rev Stats 1967). In each count he was charged with killing one Harry M. Smith. Defendant was tried by jury and convicted of the offense of Voluntary Manslaughter. The court denied post-trial motions for Judgment n. o. v., new trial, and arrest of judgment and sentenced defendant to the Illinois State Penitentiary for not less than three (3) and not more than fourteen (14) years.

As grounds for reversal defendant argues that the evidence fails to prove him guilty beyond a reasonable doubt.

On the night of September 14, 1967, defendant had spent several hours in the Block Tavern in Centralia playing pool and drinking beer. His wife, Ceola, was also in the tavern and spent several hours drinking beer and talking with the deceased, Harry M. Smith, hereafter called Smith.

Defendant left the tavern, alone, at about 10:30 p. m. Ceola Stoafer and Smith left the tavern together at approximately 10:45 p. m. in Smith’s pickup truck. Smith drove the truck to a lane opposite the Terminal Road near the Paramount Club. At approximately 12:20 a. m. on September 15, 1967, someone opened the right door of the pickup truck and fired a shotgun at Smith, causing his death.

Mrs. Stoafer testified that she and Smith had been intimate over a period of five months, had sexual intercourse on the night in question, and at the time of the shooting they were both nude.

Barbara Hall testified that at approximately 11:10 p. m. on September 14, 1967, while parked in the parking lot of the Paramount Club, she observed a two-tone green Cadillac pull into the south entrance of the lot, turn off its lights and turn around. She had the bright lights on and saw the driver’s face. She identified defendant as the driver.

Marvin Neabuhr was parked in the Paramount lot for a period of approximately two hours. He saw Barbara Hall there, and while she was there, a two-tone green 1957 Cadillac was driven onto the lot, turned around, and its headlights were turned off. Shortly thereafter the Cadillac drove away, in a northerly direction.

Kate McClelland testified that at about 12:30 a. m.. on September 15th, she saw an automobile drive up the driveway which led to the trailer home occupied by defendant and his wife. The driveway is adjacent to the home of the witness. The automobile she saw had “high tail fins,” as did defendant’s Cadillac. She saw lights go on in defendant’s trailer.

Grover Duncan testified that at approximately 12:45 a. m. on September 15th he was driving on Route 51, south of Centralia when a woman “flagged” him down. She was bloody, hysterical and only partly clothed. She told him “something horrible” had happened. He drove her to the City Hall in Centralia.

Dwight Cross, a Centralia police captain, testified that Mrs. Stoafer was brought to the police station at 12:35 a. m. and when he saw her, she was in the Duncan car. He and the Sheriff of Marion County went to the place where the pickup truck was parked, “about a mile south of Wamac.” He described the scene, the interior of the truck, and the body of the deceased.

Martin Beck, Sheriff of Marion County, testified that he and Captain Cross went to the scene of the shooting. Don Donahue, a State Trooper, and Charles Mathus, Chief of Police of Wamac were there when they arrived.

Donald Donahue, a State Trooper, testified that at approximately 12:45 a. m. on September 15, in response to a call from the Centralia Police Department, he drove to the old Terminal Road and found a truck parked on a lane at the “junction of new 51 and old 51.” It was approximately 50 to 75 feet east of old highway 51 and was headed east. He identified photographs of the truck, and the body of the deceased.

Sometime between 1:30 a. m. and 3:30 a. m. on September 15th, Donahue and Mathus went to the defendant’s trailer and arrested him. At the time of the arrest defendant was in bed. Defendant asked “What’s going on?,” but did not inquire as to the reason for the arrest.

Approximately 7:00 a. m., Donahue went to the scene of the shooting with James Wentworth, a crime scene technician for the Illinois State Bureau of Criminal Investigation. Some shotgun pellets were found on the dashboard of the truck. A spent shotgun casing was picked up approximately 6 to 8 feet from the right door of the truck.

Later in the morning the witness accompanied by Wentworth, Mrs. Stoafer and an assistant state’s attorney, went to defendant’s trailer. They found a shotgun and several shotgun shells in the trailer. Approximately 50 feet south of the trailer, they found a spent shotgun shell. Defendant’s automobile was parked near the trailer. Mrs. Stoafer gave him permission to take the shotgun.

James Wentworth testified that in response to a call on the early morning of September 15, he went to the Centralia police station. He arrived there at approximately 5:00 a. m. He went to a funeral parlor and examined the body of the deceased. He was given some lead shot taken from the body. From there he went to defendant’s trailer, arriving there at approximately 7:00 a. m. He identified a shotgun as having been taken from defendant’s trailer, with the permission of Mrs. Stoafer. He identified shotgun shells taken from the trailer, and a spent shotgun shell picked up approximately 30 yards from the trailer. He also identified a spent shotgun shell found near the right hand door of the truck. This was a Western Super X shell of the same type as those taken from defendant’s trailer. There were several Budweiser cans in defendant’s car and he stated there was a “fairly fresh” Budweiser beer can, with no rust on it, found near the truck. He identified a beer can as the one found near the truck. Wentworth testified that the exhibits were placed in containers, marked, and delivered to his superior, Forrest R. Bitterly. At the scene he “dusted for finger prints,” but found none of defendant’s prints.

Forrest R. Litterly, assistant superintendent of the Illinois State Bureau of Criminal Identification and Investigation, identified two lead shot given him by Wentworth and described by him as those removed from Smith’s body, and stated they were compatible with the shot found in Super X Western No. 6 shells. He also identified lead shot as those given him by Wentworth and allegedly taken by Wentworth from the truck, as being compatible with No. 6 shot.

Bitterly was qualified with respect to his experience in the examination and comparison of the markings made on shells and cartridges by firearms, and identified a shell as having been given him and described by Went-worth as found at defendant’s home, one described by Wentworth as having been found near the scene of the shooting, and a third fired by Bitterly from the shotgun taken from defendant’s trailer. He stated that in his opinion all three shells were ejected from defendant’s shotgun.

No evidence was offered by defendant.

A conviction may be based upon circumstantial evidence, People v. Williams, 40 Ill2d 522, 240 NE2d 645. As stated by the Supreme Court in People v. Huff, 29 Ill2d 315, 194 NE2d 230, at page 320, “The fact that the circumstantial evidence relied upon must not give rise to any reasonable hypotheses under which the defendant could be innocent of the crime charged, (People v. Benson, 19 Ill2d 50; People v. Hooper, 364 Ill 320; People v. Ahrling, 279 Ill 70), does not mean that the trier of fact is ‘required to search out a series of potential explanations compatible with innocence, and elevate them to the status of a reasonable doubt.’ (People v. Russell, 17 Ill2d 328, 331.)”

From our examination of the record we conclude that the evidence is sufficient to sustain the conviction, and the guilty verdict should not be disturbed. People v. Robinson, 14 Ill2d 325, 153 NE2d 65.

Defendant contends that the trial court erred in admitting into evidence the shotgun found in his trailer, and taken without a search warrant and without his consent. The record shows that Mrs. Stoafer occupied the trailer along with defendant and she consented to the search and the removal of the shotgun. Under these circumstances the evidence thus obtained was properly admitted. People v. Palmer, 26 Ill2d 464, 187 NE2d 236; People v. Walker, 34 Ill2d 23, 213 NE2d 552.

Defendant’s final contention is that the evidence does not show the offense to have been committed in Marion County. The testimony of several witnesses fixed the place where the deceased’s truck was parked as being in a lane near the junction of old and new highways 51, and approximately 50 to 75 feet east of old highway 51. The trial court, in denying defendant’s post-trial motions, took judicial notice of the boundaries of Marion County and found that the west boundary of Marion County is between 50 and 125 feet west of the place where the deceased was found. The trial court correctly held the proof of venue to be sufficient. People v. Clark, 9 Ill2d 400, 137 NE2d 820; People v. Allen, 413 Ill 69, 107 NE2d 826.

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

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: DOUGLASS, J.

text:
    Guy Elmer Love, Plaintiff-Appellee, v. Stolze Lumber Company, Incorporated, Defendant-Appellant.
    Gen. No. 68-92.
    Fifth District.
    August 7, 1969.

      R. W. Griffith, of Alton (James R. Heil, of counsel), for appellant.
    William W. Schooley, of Granite City, for appellee.
   DOUGLASS, J.

This is an appeal by defendant-appellant, Stolze Lumber Company, Incorporated, hereinafter called defendant, from a judgment rendered in favor of plaintiff-appellee, Guy Elmer Love, hereinafter called plaintiff.

Plaintiff filed suit in the Circuit Court of Madison County against the defendant, Stolze Lumber Company, Incorporated, engaged in the retail lumber business.

The statement of facts in this cause is that on the 6th day of March, 1965, the plaintiff, Guy Elmer Love, went to the Stolze Lumber Company of Granite City, Illinois. The plaintiff had traded at this store and had been previously employed at the store for four years.

Plaintiff was 59 years of age, was six feet tall and weighed 250 pounds. He had a physical impediment consisting of an amputated big toe. In an accident occurring in 1962, plaintiff had received an injury to his right knee and had received treatment for the knee and had been bothered by the injury until within six months of the injury complained of in this cause.

Plaintiff arrived at the defendant’s store between 11:30 a. m. and 12:00 Noon. On the previous day it had snowed, but the snow had melted. It was “wet and sloshy” outside.

After parking his motor vehicle the plaintiff walked through the parking area into the store. As plaintiff entered the store he saw a burlap bag lying on the terrazzo floor in front of the two doors. The burlap bag had been placed there the evening before by defendant’s janitor. It appeared to be wet and dirty. The plaintiff stepped on the bag and began wiping his feet. After wiping his feet, plaintiff stepped off the burlap bag with his left foot and as he stepped off with his right foot, it apparently became entangled in the burlap and he fell to the terazzo floor. The plaintiff fell on his right knee and left hand. The plaintiff told an employee of the store that he did not think he needed a doctor, whereupon he completed his purchases and left the store.

Later in the day the plaintiff’s knee began to swell and he went to St. Elizabeth’s Hospital in Granite City. He was examined by Doctor Dix; a Doctor Cole treated the patient. X rays disclosed a linear fracture of the kneecap and a knee cast was applied on the right knee. The cast remained on until April 7, 1965. The plaintiff was later examined, and X rays made after the removal of the cast revealed a complete healing of the fracture.

Plaintiff returned to work in July of 1965. At the time of the accident his hourly wages were $3.95 per hour.

A jury found in favor of the plaintiff and assessed damages at $21,000. The cause herein is appealed to this court by the defendant.

The trial court properly gave plaintiff’s Instruction Number 2 and refused to give defendant’s Instruction Number 2, which are as follows:

“Plaintiff’s Instruction Number Two (2):
“The defendant owed the plaintiff the duty to exercise ordinary care to keep its property reasonably safe for use by the plaintiff.
“Defendant’s Instruction Number Two (2):
“It was the duty of the defendant, before and at the time of the occurrence to use ordinary care for the safety of the plaintiff.”

In causes where the complaint charges the existence of a “dangerous condition” the courts have expressed the defendant’s duty in terms of using reasonable care to see that the premises are reasonably safe. Miller v. S. S. Kresge Co., 306 Ill 104, 137 NE 385; Schmelzel v. Kroger Grocery & Baking Co., 342 Ill App 501, 96 NE2d 885.

The trial court properly held that the plaintiff’s evidence presented a jury question on the issue of defendant’s negligence.

The court must consider all the facts and circumstances in a particular situation in determining whether the case should be submitted to the jury. River v. Atlantic & Pacific Tea Co., 31 Ill App2d 232, 175 NE2d 593.

The court properly submitted the question of the plaintiff’s contributory negligence to the jury. There was no evidence presented in the record that the plaintiff did anything other than what the defendant intended the plaintiff to do up to the time he fell.

It is the opinion of this court that the verdict was not excessive.

“The courts have repeatedly held that the amount of damages to be assessed is peculiarly a question of fact for the jury, and if the jury is properly instructed on the measure of damages, an appellate court should not substitute its judgment as to the sum to be awarded in a given case for that of the jury.” Williams v. Brown Mfg. Co., 93 Ill App2d 334, 373, 236 NE2d 125.

The trial court hearing this cause properly submitted the questions of defendant’s negligence, of plaintiff’s contributory negligence, and of plaintiff’s damages to the jury for their consideration and determination.

Judgment for the plaintiff is affirmed.

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


author: MR. JUSTICE SEIDENFELD

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Gino Rossi, Defendant-Appellant.
    Gen. No. 68-134.
    Second District.
    August 25, 1969.

      Daniel Kuhn, of Naperville, for appellant.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Ralph J. Gust, Jr., Assistant State’s Attorney, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendant was convicted of the crime of burglary after a jury trial. He appeals from the judgment of conviction, contending that intent to commit a theft was not proven beyond a reasonable doubt, and that admission of a purported instrument of a burglary — a filed down screwdriver — was reversible error.

Defendant, together with one Edward Broeffle, was found inside a residence shortly after midnight on August 22nd, 1967. Both men were found hiding under a pile of rugs in a small “mud room” off the kitchen in the unlighted home.

The building was rented to the Jaime Ferra family at the time of the offense charged. The Ferras had left on a vacation several days prior to August 22nd, leaving various of their possessions in the home. They had allowed some friends to remain in the house and the latter removed their belongings and gave the key to a neighbor to the north, the Fosters, at about 9:00 p. m. on August 21st.

Shortly after midnight on August 22nd, another neighbor, Mrs. Rogers called the Foster home and related that she had seen two males starting down her driveway and walking across the street; that when a car drove by, the men pulled into the shadow of a tree and then went into the backyard of a neighboring house, and stood there for a few moments; that one man went around the back of the Ferra house, the other around the other side, and that they then started up the kitchen steps of the Ferra house. It was at this point Mrs. Rogers called.

After receiving the call Mr. Foster went next door to investigate. He went up to the kitchen porch and with a flashlight saw that the door was open. He called out, “Come on, boys. Let’s get out.” At that time he heard noises in the basement and concluded, “They weren’t just boys,” so he backed out, signaled his wife with the flashlight from the steps and told her to call the police.

The police arrived in three or four minutes. After defendant was brought out from under a pile of rugs he sought to move away from the officers and was subdued. (The defendant was charged with resisting a police officer but the jury found him not guilty on that charge.)

The further investigation of the police revealed that nothing had been taken. A kitchen window was found open some eighteen inches. There were indentations on the window sill, which a neighbor was allowed, over objection, to characterize as “pry marks.” There is no evidence that these indentations had not been previously present in the old home which had been recently painted. Mrs. Foster testified without objection that when the friends of the Ferras brought the key to her, they told her, “Everything was locked up,” but that she did not check this.

A screwdriver with a filed down blade was found in the cabinet located near the open window of the kitchen. There was no proof that defendant owned the screwdriver, but Mr. Ferra testified he had never seen it before.

No witnesses were offered for the defense.

Under the facts and circumstances presented, the principal contention of the defendant that the requisite intent has not been proven beyond a reasonable doubt must be rejected.

There is no disagreement as to the legal principles which apply. Specific intent to steal must exist and be measured at the time of unauthorized entry into the dwelling of another, and the State has the burden of proving the necessary intent. People v. Maffioli, 406 Ill 315, 320, 94 NE2d 191 (1950); People v. McCombs, 94 Ill App2d 308, 312, 236 NE2d 569 (1968). Since a person’s state of mind is not subject to direct proof, ordinarily intent must be proved circumstantially by inferences drawn from conduct. In the absence of inconsistent circumstances, proof of unlawful entry into a building which contains personal property that could be the subject of larceny gives rise to an inference that will sustain a conviction of burglary. The inference is grounded in human experience which justifies the assumption that the unlawful entry was not purposeless, and, in the absence of other proof, indicates theft as the most likely purpose. People v. Johnson, 28 Ill2d 441, 443, 192 NE2d 864 (1963); People v. Powell, 61 Ill App2d 238, 245, 246, 209 NE2d 345 (1965).

The actions of the defendant were sufficient evidence of felonious intent. He was apprehended in the building, with another, after two men were observed acting furtively at the scene and were seen on the back stairway of the darkened house. Defendant sought to avoid detection before he was found and attempted to flee the scene afterwards. Under these unexplained circumstances the jury did properly find the requisite intent to enter and steal. The trier of fact was not required to search out a series of potential explanations compatible with innocence and elevate them to the status of a reasonable doubt. People v. Huff, 29 Ill2d 315, 320, 194 NE 2d 230 (1963); People v. Jackson, 98 Ill App2d 296, 302, 240 NE2d 482 (1968); People v. Powell, supra, at 246; People v. Gooch, 70 Ill App2d 124, 131, 217 NE2d 523 (1966). The facts in this case are clearly distinguishable from those found in People v. Soznowski, 22 Ill2d 540, 177 NE2d 146 (1961), and People v. McCombs, supra, in that the acts here were no way inconsistent with an intent to steal, while in the cited cases the conduct was found to be inconsistent with such an intent.

Defendant argues that the felonious intent was improperly implied by the admission of extraneous irrelevancies, that is the evidence of the open window and the admission of the filed down screwdriver. As we have indicated, without considering these items of evidence, there was sufficient proof of the felonious intent beyond a reasonable doubt. While the evidence that the window had been previously closed and while the evidence to connect the screwdriver to defendant and its use in entering the building was slight, the evidence of the guilt of the defendant was sufficiently strong without such supporting circumstances to justify the conviction. In a clear case of burglary we will not reverse for minor errors. People v. Albanese, 379 Ill 287, 290, 40 NE2d 499 (1942); People v. Niksic, 385 Ill 479, 486, 53 NE2d 400 (1944).

We, therefore, affirm.

Affirmed.

MORAN, P. J. and DAVIS, J., concur.


text:
    Patrick Tuskey, a Minor, By and Through His Father and Next Friend, Joseph Tuskey, Plaintiff-Appellant, v. Robert Callos, Defendant-Appellee.
    Gen. No. 68-194.
    Second District.
    August 25, 1969.

      James A. Thompson, of Chicago, for appellant.
    Rathje, Woodward, Dyer and Burt, of Wheaton, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The plaintiff, a minor, brought suit by and through his father in the Circuit Court of DuPage County to recover his damages for personal injuries suffered in an accident on November 23, 1963, allegedly caused by the negligence of the defendant. The jury returned a verdict in favor of the defendant and the trial court denied the plaintiff’s motion for a new trial. This appeal followed.

Patrick Tuskey was four days short of eight years old on the day of the accident. His parents had driven him to St. Joan of Arc Church in the Village of Lisle for religious instruction at approximately 9:30 a. m. When the instructions ended, Patrick left the church and started to walk home since his parents had not yet returned to pick him up.

The church was located east of Main Street and south of the Chicago, Burlington Railroad tracks in the Village, and his home was west of Main and north of the tracks. Patrick walked west on Front Street from the church to Main where he turned north and continued on the sidewalk on the east side of the street. Main Street goes under the railroad tracks a short distance north of Front Street and as Patrick went under this viaduct he started to cross Main Street to the west. He was struck by the defendant’s automobile when he was in the southbound traffic lane of Main Street, a few feet north of the viaduct.

Patrick was immediately taken to the hospital where the examining physician found a hematoma on his forehead and numerous abrasions. He was released that day but was referred to a neurologist several weeks later when he continued to suffer dizziness and headaches. It is not necessary to review the medical testimony in detail but the record does disclose that the boy continued to experience headaches, dizziness, seizures, blackouts and other symptoms of a brain injury. The neurologist testified that the boy had post-traumatic epilepsy and that his illness was probably permanent.

The plaintiff contends that the verdict was against the manifest weight of the evidence and that he was denied a fair trial by the prejudicial conduct of the defense counsel and the trial judge.

Three witnesses testified as to the facts that would determine the legal liability for the accident. Patrick testified that he left the church and started to walk home. The sun was shining, there was snow on the grass, and the surface of Main Street was moist. As he walked under the viaduct, he started to cross Main Street on an angle. He looked both ways before crossing and saw only the defendant’s car approximately 300 feet north of the viaduct. He proceeded to cross and was halfway across the southbound lane of Main when he was struck by the defendant’s automobile and thrown against the viaduct wall. He felt his head hit the wall. He did not recall that he said anything at the scene but “Mom and Dad.”

The defendant, Robert Callos, who was driving south on Main Street, testified that as he approached the viaduct his speed was between fifteen and twenty-five miles per hour; that he had taken his foot off of the accelerator, and that he first saw the boy cross Main Street to the west when Patrick emerged from between two northbound vehicles, about twenty-seven to thirty feet from his car. Upon seeing the boy, he put his foot on the brake and his car struck Patrick a few feet north of the viaduct. His car was practically stopped at the time. He did not notice whether Patrick was knocked completely down but did see him run to the viaduct wall.

Police Chief Worth, of the Village of Lisle, testified that at the time in question he was standing in the middle of Main Street to the south of the viaduct directing traffic coming west on Front Street from the church. He stated that at the time of the accident “the flow of traffic was pretty close to the end . . .” and that there were several cars that had just turned right and gone under the viaduct. He stood in the southbound lane of Main Street and although he did not see the actual impact he saw the boy “hit the pavement.” He walked to the scene and found the boy on his back in the southbound lane with his head about a foot from the center line. Patrick told Chief Worth that he “. . . thought he could make it.”

Photographic exhibits of the scene disclose that Main Street is a narrow two-lane road at this point and that there is no sidewalk on the west side under the viaduct. Immediately north of the viaduct there is a path on the west side of Main on an incline. The viaduct itself is low and narrow and the embankment over it would obviously cast a shadow on a sunny day.

Although it is contended that the boy was struck in or near an unmarked crosswalk, there is nothing in the record to indicate that this is correct. Burlington Street intersects Main north of the viaduct but all of the testimony, including that of the plaintiff, is that the impact occurred under or just beyond the viaduct. From the photographs it is apparent that to cross Main Street at this point would be hazardous under any conditions. The plaintiff argues that the defendant, who was a nine-year resident of the area, was aware that this intersection was dangerous yet did not take the necessary precaution required by the situation as he approached the viaduct. The jury obviously disagreed.

As we have seen, the testimony was in conflict as to the presence of other automobiles in the northbound lane at the time of the accident. It is probable that the resolution of that conflict by the jury was of crucial importance in their ultimate determinations. It was the proper function of the jury, as a fact-finding body, to resolve that conflict and to make the ultimate determination as to liability. A court of review should not disturb the verdict of the jury unless it . . is clearly wrong, or unless the court is satisfied that the verdict is against the manifest weight of the evidence, and that an opposite conclusion is clearly evident.” Smith v. 601 Liquors, Inc., 101 Ill App2d 306, 312, 243 NE2d 367; Gary v. Rogers, 104 Ill App2d 154, 158, 243 NE2d 665.

We cannot say that an opposite conclusion would be clearly evident in this case or that the verdict was against the manifest weight of the evidence. Both the defendant and Officer Worth testified as to the presence of other automobiles under the viaduct at the time of the accident. Indeed, it seems unlikely that Officer Worth would have himself been present if there was no traffic to direct. If Patrick had crossed Main under the viaduct, or even a few feet beyond it, between the oncoming cars, it would have been difficult, if not impossible, to see him until he was in the southbound lane.

The plaintiff further contends that prejudicial error was committed in the trial of the cause as a result of the conduct of defense counsel. Chief Worth was called as a witness by the defendant and testified that Patrick told him at the scene “I thought I could make it.” The defense then inquired whether the witness could refresh his recollection of the conversation if he referred to his report made shortly after the accident. The plaintiff’s attorney objected that there was no indication that the witness had exhausted his recollection. The defense counsel agreed and rephrased the question as follows:

“Q. Would you tell the court and jury, Mr. Witness, from your own independent recollection what the boy said to his father about how the occurrence happened ?
“A. Well, when the father arrived, he said What happened, son ?’ And he said, T thought I could beat the car.’ ”

On cross-examination, the witness testified that the boy might have said “I thought I could make it” but believed the word “beat” was used. On redirect, the witness was asked to refresh his recollection from the report as to the language used by the boy and he testified “. . . he thought he could beat the car.”

It is well known that police reports are inadmissible and their offer into evidence has been condemned. Kelly v. Chicago Transit Authority, 69 Ill App2d 316, 322, 217 NE2d 560; Smith v. Johnson, 2 Ill App2d 315, 319, 120 NE2d 58. However, they can be used for the limited purpose, as here, to refresh the recollection of a witness. We do not find that any attempt was made to offer the report itself into evidence.

In final argument, the defense counsel stated that although, through oversight, no evidence as to skid marks had been presented, he believed the marks were short. In his brief, the defendant maintains that this statement was a reasonable inference that could be drawn from the evidence. We recognize that broad latitude is afforded attorneys to draw all reasonable inferences from the evidence in their final argument. Maddox v. Smith, 67 Ill App2d 374, 383, 214 NE2d 5; Keller v. Menconi, 7 Ill App2d 250, 254, 129 NE2d 341. We are not convinced that any inference as to skid marks could be reasonably made from the evidence in the record. However, it does not appear from our examination of the entire record that any injury resulted and that the error, if any, was harmless and does not require reversal. Both v. Nelson, 31 Ill2d 511, 514, 202 NE2d 494; Quigley v. Snoddy, 102 Ill App2d 232, 236, 242 NE2d 775.

While we agree that the court has a special duty to see that the rights of minors are adequately protected, we find nothing in the record to support the plaintiff’s final contention that he was denied a fair trial by the actions of the trial judge.

For the reasons stated, the judgment of the trial court will be affirmed.

Judgment affirmed.

MORAN, P. J. and DAVIS, J., concur.


text:
    High Meadows Park, Inc., an Illinois Corporation, et al., Plaintiffs-Appellants, v. The City of Aurora, a Municipal Corporation, et al., Defendants-Appellees.
    Gen. No. 69-1.
    Second District.
    August 25, 1969.

      Alschuler, Putnam, McWethy, Weiss & Weiler, of Aurora, for appellants.
    William J. Foote and David Peskind, of Aurora, for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Plaintiffs appeal from a judgment order dismissing a complaint for mandamus (for the issuance of a building permit), and for injunction (against the enforcement of the zoning ordinance and a certain prohibitory ordinance of the City of Aurora). Plaintiffs elected to stand on their complaint so that final judgment was entered.

The dispute arises from a refusal by the city to approve plaintiffs’ building plans for a community building, with manager’s residence attached, to be built in connection with a proposed Mobile Home Park on land in Aurora of which the plaintiff, Patrick Scully, is the contract seller and the plaintiff, High Meadows Park, Inc., is the contract purchaser and applicant for the building permit. The property is zoned M-l, Limited Manufacturing.

The pleadings establish that on September 8th, 1967, High Meadows Park, Inc. made application to the building inspector of the city of Aurora for the issuance of a building permit for the construction of a community building in connection with the development of the Mobile Home Park, and submitted a development plan for the Mobile Home Park together with a list of the proposed site improvements. On November 21st, 1967, the building commissioner denied the permit by letter which acknowledged the application for a building permit to construct a community building “for a Mobile Home Park” and advised that the application was denied for a number of reasons including,

1— Mobile homes and trailer parks are prohibited within the corporate limits of Aurora by a specific ordinance.
2— The Aurora Zoning Ordinance has no provisions in any zoning category for Mobile Homes Parks or trailer park.
3— The City Council of the City of Aurora has recently unanimously refused to consider an Ordinance providing for the construction and regulation of such parks.
4— In all events, mobile homes, trailer parks and all other dwellings used for residential purposes or human habitation are not permitted under Zoning and Building Codes in areas such as yours, Zoned M-l, limited manufacturing except those specifically allowed under Ordinance 3100, as amended, Section 13.2 and its subsections.
5— Since your application states that this building is the first step to the development of a mobile home trailer park, the permit is denied in that the land for the park has not been subdivided in accordance with the Aurora subdivision Control Ordinance and other applicable City Ordinances and State Statutes.
6 — Since this property is Zoned M-l limited manufacturing, all construction must comply with standard specified in Fire District number 2.

Defendants’ motion to dismiss the complaint charged that the application for building permit was signed by the wrong party; that neither plaintiff was a proper party to the action; that plaintiffs failed to exhaust their administrative remedies; that the proposed construction did not meet the requirements of the Building Code; that the relief prayed was beyond the authority of the court; and that both counts of the complaint fail to state causes of action.

The court, in its order of September 3rd, 1968, granting defendants’ motion to dismiss, found that the application for building permit was not proper in that it was not filed by the owner in fee simple as required under the Building Code ordinance; that both plaintiffs were proper parties; that plaintiffs had not failed to exhaust their administrative remedies; that the application did not conform to the Building Code; that the zoning ordinance of the city of Aurora was not invalid as to this particular property or all property for failure to provide for a particular use; and that there were no allegations in the complaint that the ordinance was arbitrary, unreasonable and without relation to the public health, safety, welfare and morals of the community.

The several ordinances of the city of Aurora placed in issue by the pleadings included a 1937 ordinance which completely prohibits the owner of land to permit the use thereof for the purpose of parking a trailer if used as a dwelling; and the Aurora zoning ordinance which classifies all land into zoning districts, but nowhere lists mobile home parks as a permitted use, either under the various zoning classifications or under the special use provisions. The Building Code sets forth in an M-l zoning classification, in Fire District No. 2, substantially greater construction restrictions than outside such fire districts.

Plaintiffs argue that the prohibition of mobile home parks by the city of Aurora within its limits is invalid as the city has not been delegated the power to prohibit this legitimate business; that neither the prohibitory ordinance nor the zoning ordinance can be used by the city to prohibit mobile home parks anywhere within the city; that the technical requirements of the Building Code based on zoning classifications cannot apply when the zoning ordinance is void for the use proposed; and that the failure of the plaintiff Scully to sign the application for a building permit, if ever required, is excused by his joining in the litigation.

The city suggests that it is not necessary to reach the question of validity of the ordinances because of failure to meet the requirements of the Building Code. The city further argues, that in any event, it is not required to provide a category for every legitimate business use, and that the legislative determination denying the mobile home park use, has not been attacked in the absence of allegations in the complaint that the ordinances are not in accordance with the general welfare. The defendant does not argue in opposition to the finding by the court below that the plaintiffs did not fail to exhaust administrative remedies.

Directing our attention to count I of the complaint, sounding in mandamus to require the building commissioner to issue a building permit, we are of the opinion that this portion of the complaint was properly dismissed.

Mandamus is an extraordinary remedy for which a petitioner must show a clear and undoubted right to the relief demanded; and the writ is to be granted or denied in the exercise of sound judicial discretion by the court. Michigan-Grand Bldg. Corp. v. Barrett, 350 Ill 291, 306, 183 NE 205 (1932); Wehrmeister v. Carlman, 17 Ill App2d 171, 183, 149 NE2d 453 (1958).

Here, in addition to the ordinances, the validity of which petitioners seek to place in issue, there were requirements of the Building Code with which petitioners did not comply. The pleadings do not disclose specifically the changes petitioners would propose to make, and the allegation that “to the extent that the petitioner's plans technically fail to comply with the requirements of Ordinance No. 3874, said petitioner is willing and able to revise said plans so they will comply,” is insufficient to require the issuance of the discretionary writ. People v. City of Chicago, 280 Ill 576, 580, 117 NE 779 (1917); People ex rel. Delgado v. Morris, 334 Ill App 557, 568, 79 NE2d 839 (1948).

Similarly, the requirement of the Building Code that the application be signed by the owner, refers in normal intendment to the fee owner and not to a contract purchaser. The application here was signed by the contract purchaser only, when presented to the building commissioner. The fact that the owner joins in the suit does not relate to the propriety of the administrative officer refusing the permit when the code was violated.

The city urges that we should not consider the merits of the allegations relating to the validity of the so-called zoning and prohibitory ordinances and thereby reach a controversial issue of great importance and widespread effect, because the justified refusal of the building permit disposes of the case. In addition, the city points out that the only permit sought was for a community building, and though admittedly in connection with a mobile home park, the application for the balance of the trailer park would have to be submitted and decided at a later time.

This argument ignores count II of the complaint which, in our opinion, places the validity of the 1937 ordinance (expressly prohibiting the owner of land to permit the use thereof for the purpose of parking a trailer) and the permissive zoning ordinance (which excludes any reference to trailer parks or mobile home parks as a permitted use), directly in issue.

If such ordinances provide no remedy and are attacked as being void in their terms, jurisdiction over the dispute may be taken in equity and injunction is a permitted remedy. See Pringle v. City of Chicago, 404 Ill 473, 478, 89 NE2d 365 (1950); American Civil Liberties Union v. Chicago, 3 Ill2d 334, 352, 121 NE2d 585 (1954); Sinclair Pipe Line v. Village of Richton Park, 19 Ill2d 370, 379, 167 NE2d 406 (1960).

The city arguing that, even if the court should grant all of the relief prayed for by petitioners, petitioners would still have to obtain a permit “for the construction of the balance of the trailer park” (emphasis added), appears to be contending that petitioners must exhaust administrative remedies before applying for injunctive relief against the ordinances. However, the application for the permit for the community building was expressly stated, and was considered by the building commissioner, to be in conjunction with the mobile home park. While the building permit was sought only for the first phase of the project, the community building to serve the proposed park, the plans for the balance of the mobile home park were also submitted preliminary to securing State approval under the provisions of Ill Rev Stats 1967, c 111½, § 168. And when it was made clear that at least one of the grounds for the refusal of the application was that mobile home parks were not permitted and, in fact, were expressly forbidden by a prohibitory ordinance, petitioners were not required to perform the useless act of submitting a further application before applying to the court for relief. Bright v. City of Evanston, 10 Ill2d 178, 184, 139 NE2d 270 (1956); Bank of Lyons v. County of Cook, 13 Ill2d 493, 495, 150 NE2d 97 (1958).

The court below expressly found that petitioners had not failed to exhaust administrative remedies. This is not attacked in any direct manner in this court, and under the circumstances, this defense would be unavailing to preclude the remedy of injunction.

The City of Aurora Ordinance No. 2475 prohibiting the owner of land to permit the use thereof for the purpose of parking a trailer, is a void ordinance and action under it is subject to be enjoined. Mobile Home Parks are legitimate businesses. See Camboni’s, Inc. v. DuPage County, 26 Ill2d 427, 430, 187 NE2d 212 (1962) and Pioneer Trust & Savings Bank v. McHenry County, 41 Ill2d 77, 82, 86, 241 NE2d 454 (1968). “Trailer Coach Parks” are recognized as legitimate businesses under the State statute regulating them. C 111½ supra.

It is clear that a city has only the powers delegated to it by the State and while the State has given express permission to municipalities to “locate and regulate” the use and construction of house trailers (see Ill Rev Stats 1961, c 24, par 11-42-8), and the statute providing for the licensing of trailer parks by the State through the Department of Public Health (c 111½ supra, pars 158-185), also recognizes the power of the municipality to regulate, nowhere has authority been given to the cities to prohibit a lawful business by an ordinance directed at one type of business in a discriminatory manner. People ex rel. v. Village of Skokie, 408 Ill 397, 404, 97 NE2d 310 (1951); Speroni v. Board of Appeals of City of Sterling, 368 Ill 568, 572, 15 NE2d 302 (1983); Suburban Ready-Mix v. Village of Wheeling, 25 Ill2d 548, 550, 185 NE2d 665 (1962).

In next considering the effect of the exclusionary zoning ordinance, we do not, however, take the above cases to mean that in fact every municipality must accommodate every legitimate land use by providing a place for such use somewhere in its boundaries.

There would appear to be no constitutional limitation on a municipality’s power to exclude uses from a particular district, except that the exclusion must bear a substantial relationship to the preservation of public health, safety, morals or general welfare. See People ex rel. v. Morton Grove, 16 Ill2d 183, 188, 157 NE2d 33 (1959), holding that exclusion of residences from a commercial or industrial district may be within the police power delegated to municipalities. The power to exclude on the same basis may, under conceivable facts, include all land within the boundaries of a municipality. Village of Bourbonnais v. Herbert, 86 Ill App2d 367, 371, 229 NE2d 574 (1967). See also Annotation 9 ALR2d 683.

But it would seem equally apparent that while it may be within the lawful province of zoning to preserve a particular character of a city, this power must be exercised within constitutional limitations. It must be exercised in a nondiscriminatory manner and based upon the reasonable exercise of the police power in the public welfare. Suburban Ready-Mix v. Village of Wheeling, supra.

We believe that a recognition of the right to exclude particular legitimate uses includes the responsibility to provide a forum or remedy so that a petitioner can test whether his proposed use for a legitimate business purpose comports with the public welfare, keeping in mind the character of the classification of property in a particular municipality and tested by the traditional considerations applied to zoning ordinances to determine whether they are an unreasonable or arbitrary exercise of the police power.

The special use technique has been developed as a means of providing for infrequent types of land use which are necessary and desirable but which are potentially incompatible with uses usually allowed in residential, commercial and industrial zones, and which cannot be categorized in any given use zone without the danger of excluding beneficial uses or including dangerous ones. Kotrich v. County of DuPage, 19 Ill2d 181, 184, 185, 166 NE2d 601 (1960); Village of Bourbonnais v. Herbert, supra, p 372.

The zoning ordinance here provided no specific provision for the construction of mobile home parks. Nor did it provide a specific special use for that purpose — nor, indeed did it provide a residuary special use category. It thus provided no method of applying for a legitimate business use. This was beyond its delegated powers, as well as constitutionally impermissible in our opinion.

The city argues that even if it could be conceded that it has no power to prohibit mobile home parks everywhere within its limits, it does not follow that petitioners can locate in an M-l zone; that petitioners must allege (as the trial court held) the ordinance to be against the public welfare as applied to the particular property involved. Petitioners counter with the argument that this is not a zoning case — that no claim is made that M-l is not a reasonable classification of the property — but that the ordinances are void as prohibiting the mobile home park use and providing no method for petitioners to ask for rezoning to permit the use. If the result of declaring the ordinances void is to permit location of mobile home parks anywhere in the city, petitioners argue, or if the particular area here is unsuitable, the city has made the choice by its legislative acts and cannot be heard to complain of the result.

We are of the opinion that, with the purely prohibitive ordinance being void as we have indicated previously, the zoning ordinance stands on its own terms and need not be read in conjunction with a specific prohibitory ordinance. While petitioners suggest that the zoning ordinance is also a prohibitory ordinance, we believe that more properly it should be categorized as an exclusionary zoning ordinance which does not prohibit mobile home parks by its terms, but fails to make any provision for that use. In our opinion this failure does not render the zoning ordinance unconstitutional and void in its entirety. And it may or may not be unconstitutional and void as applied to the specific property in question.

In Builders Supply & Lumber Co. v. City of Northlake, 21 Ill2d 14, 170 NE2d 597 (1960), the court stated on page 17-18:

The complaint alleges and the answer admits that the zoning ordinance of the city of Northlake, as amended, makes no provision for the construction of a multiple-family dwelling. The zoning ordinance does not prohibit multiple-family dwellings, but fails to make any provision for such use. Plaintiff cites us to opinions of this court where we have determined that a zoning ordinance may not exclude or prohibit a legitimate use of the land. (People ex rel. Trust Company of Chicago v. Village of Skokie, 408 Ill 397; Speroni v. Board of Appeals of the City of Sterling, 368 Ill 568.) Nevertheless the evidence must indicate that the use desired, and excluded, is a legitimate use. The ordinance here in question does not prohibit multiple dwellings, it merely fails to provide for the same. It may well be that multiple dwellings may be a legitimate use of the land in some area or classification within the city of Northlake. If so, the ordinance may be unconstitutional insofar as that area or classification is concerned. The entire ordinance is not, for that reason only, rendered unconstitutional. Thus, to determine whether the ordinance is unconstitutional as it is applied to plaintiff’s land, it would be necessary to prove the character of the neighborhood, the classification and the use of nearby property, the extent to which property values are diminished by the particular zoning restrictions involved, the gain to the public compared to the hardship imposed upon individual property owners, and thus determine whether the purported exercise of the police power is unreasonable or confiscatory. (Galt v. County of Cook, 405 Ill 396.)

We feel that this approach is appropriate here. It cannot be determined on the pleadings without evidence that the zoning ordinance is void as to this property merely because a mobile home park may be shown to be a legitimate use somewhere within the boundaries of Aurora. We do find, however, that the allegations contained in count II of the complaint that the ordinances exceed the authority granted of the defendant and “are arbitrary discriminations against these petitioners and are unusual, harsh, arbitrary, oppressive, prohibitory and confiscatory and are void insofar as they relate to these plaintiffs,” together with the other allegations of the complaint, sufficiently invoke the jurisdiction of the court. Equity can provide wider relief in furtherance of the public interest than when only private interests are involved. See County of DuPage v. Henderson, 402 Ill 179, 191-192, 83 NE2d 720 (1949).

We are concerned that if we were to accept plaintiff’s arguments to their possible conclusion, any municipality which failed to provide a category either specifically or by special use for a legitimate business could suffer the punishment of having it possibly located in an area totally unsuited for its purpose and with resultant great damage to owners of property in the area. We do not feel that the law of supply and demand is as sufficient protection to the public and its welfare as petitioner suggests. Nor do we feel that one asking for equity should be allowed to deny equity to citizens who would suffer the damage for legislative failures of their representatives, if any other course is available to us.

Therefore, we believe that the course followed in Builders Supply & Lumber Co. v. City of Northlake, supra, should be followed here and proof can be adduced on the merits below to determine whether the exclusion of mobile home parks in the area proposed is in the public interest and a proper exercise of the police power. The fact that the city has made no provision for such a use anywhere, if it continues to be the fact, would be a proper matter to consider in determining whether the zoning ordinance is enacted on the basis of concern for the public welfare or for the purpose of discriminating against a legitimate business.

If the court in its trial decides in favor of petitioners, the question of what Building Code provisions are applicable to a mobile home park would necessarily have to be reached. It is apparent that both the city building commissioner and the applicants were necessarily placed in a quandary as to what Building Code provisions would apply. In Rezler v. Village of Riverside, 28 Ill2d 142, 190 NE2d 706 (1963), the court stated on page 148:

The necessity for special treatment of trailer parks, partaking both of commercial and residential use, has been universally recognized. Camboni’s, Inc. v. County of DuPage, 26 Ill2d 427; Town of Granby v. Landry, 341 Mass 443,170 NE2d 364 (1960).

The Building Code of Aurora obviously could not take into consideration the special nature of the mobile home park use here. It makes little sense to impose the requirements of an M-l related fire district without consideration of the special nature of the use sought. We note that the State statute regulates the community service building in connection with a trailer coach park as well as the balance of the trailer park in its general provisions as to construction and fire protection. C 111½, supra, §§ 172.2-172.18. These provisions must be followed and, in addition, the general provisions of the Aurora code outside of the M-l zone should be applicable to the extent shown to be reasonably related to the proposed use. If the city should enact a particular city code provision which reasonably regulates the construction necessary to the proposed use, the applicant should be required to conform to such code.

We, therefore, affirm the judgment below as it dismisses count I of the complaint (for mandamus), but reverse the judgment below dismissing count II (for in-junctive relief) with directions to proceed in accordance with this opinion.

Affirmed in part, reversed and remanded in part, with directions.

MORAN, P. J. and DAVIS, J., concur.


author: MORAN, J.

text:
    Kermit Sanders, Plaintiff-Appellant, v. Dr. Jack Frost and Dr. Harold Snow, Defendants-Appellees.
    Gen. No. 68-65.
    Fifth District.
    August 26, 1969.

      Delmer R. Mitchell, Jr., Meyer and Meyer, of Belleville, for appellant.
    George C. Lackey, Murray & Stephens, and James B. Wham, Wham & Wham, of Centralia, for appellees.
   MORAN, J.

Plaintiff, Kermit Sanders, brought this action in the Circuit Court of Marion County on April 23, 1964 to recover damages occasioned by the alleged negligence of the defendants Dr. Jack Frost and Dr. Harold Snow, in treating him for injuries he sustained in an automobile accident. The trial court granted both defendants’ motions for summary judgment. Plaintiff appeals.

At the time the trial court ruled on the motions for summary judgment, it had before it the deposition of the plaintiff, the defendants Dr. Frost and Dr. Snow and the deposition of a Dr. Jean Modert.

The depositions disclosed that on July 15, 1963, plaintiff suffered serious injuries to various parts of his body, including the pelvic area when he was struck by an automobile. At that time he was taken to the hospital where he was placed under the immediate care of his family doctor, Dr. Jack Frost. The radiologic examination of the pelvis, including both hips, revealed a wide separation of the symphysis pubis. Plaintiff was then placed in a pelvic sling and told to stay in the sling. A repeat X ray of the pelvis was done on August 14, 1963, and revealed that there had been no improvement in the separation. On August 19, 1963, Dr. Frost assisted by Dr. Snow, performed an operation whereby he wired the symphysis pubis in an effort to close the separation. Plaintiff was discharged from the hospital on August 23, 1963. Dr. Frost claims that he discharged plaintiff only because of plaintiff’s insistence to return home. Plaintiff denies this.

Prior to his accident, in November of 1962, plaintiff had been under the care of Dr. Frost for a staphylococcus infection in his throat. He claims that his throat was still bothering him at the time of the accident and that Dr. Frost failed to make any tests to determine if the staphylococcus infection was still present. Dr. Frost maintains that the hospital examination of plaintiff revealed no evidence of infection anywhere in his body, including his throat.

Following his operation, plaintiff claims that he developed a “boil” on his stomach which he called to the attention of Dr. Frost and inquired whether this could be staphylococcus infection. He alleges the doctor stated that it might be, but that no tests were made nor was any treatment prescribed. Dr. Frost denied having said this and denied he ever saw a boil on any part of plaintiff’s stomach. He does admit that plaintiff had a slight amount of drainage from the super pubic incision when he made a house call on September 6, 1963.

On November 7, 1963, while still being treated by Dr. Frost, plaintiff was examined by Dr. Jean Modert, who found an infection in the pelvic area only an inch and a half from the surgical incision which he determined from a culture to be staphylococcus infection. It was further determined by Dr. Modert that the wire in plaintiff’s symphysis pubis was functioning as a foreign body in that the body defenses were setting up a reaction against this particular material and that it was no longer bridging the separation. He therefore removed the wire in April of 1964. He found no staphylococcus infection inside plaintiff’s body. Dr. Modert did find an infection or boil on the plaintiff’s left ankle and on his left groin, both of which developed after he began treating plaintiff.

Dr. Modert further testified that the foreign body reaction had nothing to do with the staphylococcus infection, itself. However, there was drainage from the area of the wire which was coining out through the staphylococcus infection, even though all agreed that the wire was the type of foreign body intended to be left in the body. Dr. Modert also testified that he did not think the symptoms he found were in any way connected with whether or not plaintiff had a staphylococcus throat infection at the time of the original operation on the symphysis pubis.

Our view of summary judgment proceedings was expressed in Harp v. Gulf, M. & O. R. Co., 66 Ill App2d 33, 213 NE2d 632, at page 38:

“The purpose of summary judgment proceedings is to determine whether there is any genuine triable issue of fact which must be passed upon. Gribben v. Interstate Motor Freight System Co., 18 Ill App2d 96, 151 NE2d 443. If the pleadings, discovery depositions and exhibits, present a genuine issue as to any material fact, summary judgment should not be granted. Halloran v. Belt Ry. Co. of Chicago, 25 Ill App2d 114, 166 NE2d 98. The right of the moving party to summary judgment must be free from doubt. Miller v. Owens-Illinois Glass Co., 48 Ill App2d 412, 199 NE2d 300. The affidavits filed in support of a motion for summary judgment will be strictly construed and must leave no question of the movant’s right to judgment, but the affidavits filed in opposition thereto will be liberally construed. Tansey v. Robinson, 24 Ill App2d 277, 164 NE2d 272.”

In his amended complaint plaintiff alleged that defendants, Dr. Frost and Dr. Snow:

“(a) Undertook the orthopedic care of a difficult and complicated fracture, although the defendants were possessed of inadequate training and skill properly to treat the plaintiff’s conditions and injuries.
“(b) Performed an operation in attempting to wire the Symphysis Pubic while said plaintiff was suffering from the infection known as Staphylococcus, when the defendants knew or by the exercise of reasonable care could and should have known that no such operation should be performed or attempted to be performed while the plaintiff was suffering from such infection.
“(c) Failed adequately to follow the plaintiff’s progress in his orthopedic aftercare so as to ascertain the development of the infection hereinabove described, or to take steps to prevent or heal such infection even though they knew that plaintiff suffered from such infection or by the exercise of reasonable care could or should have known.
“(d) Although the defendants saw the plaintiff regularly, they failed to read the nurses’ notes with adequate care and to talk with said nurses and to talk with the plaintiff and to use their senses of observation to take such steps as would have been taken by physicians of reasonable skill and prudence in the community to prevent the placement of the wiring in or near the Symphysis Pubis or to remove the same to prevent the spread of the infection here-inabove referred to.
“(e) Failed adequately to sterilize the area so opened by the defendants, thereby permitting the infection to further spread and develop.
“(f) The defendants treated the separated Sym-physis Pubis by wiring it together in an open reduction when this was not the customary, ordinary, usual or correct method of treatment for this injury.

Scardina v. Colletti, 63 Ill App2d 481, 211 NE2d 762, was a malpractice suit for damages resulting from hemorrhaging caused by a severed blood vessel left open after a hernia operation. In denying relief the court stated the general rule governing malpractice cases, at page 488:

“In a malpractice action a physician will be held responsible for injuries resulting from his want of reasonable care, skill and diligence in his practice. The plaintiff must prove by affirmative evidence that the defendant was unskillful or negligent and that his want of skill or care caused injury to the plaintiff. It is not enough to prove that he made a mistake or that his treatment harmed the plaintiff; proof of a bad result or mishap is no evidence of lack of skill or negligence.
“Generally, it is necessary for the plaintiff to show by expert testimony not only that the injury occurred, but that such event does not ordinarily occur in the normal course of events without negligence. Graham v. St. Luke’s Hospital, supra, pp 156, 157; Gault v. Sideman, 42 Ill App2d 96, 101, 102, 191 NE2d 436. The so-called ‘common knowledge’ and ‘gross negligence’ exceptions to the requirement of expert testimony are applicable if the negligence of the physician is so grossly apparent or the treatment is such a common occurrence that a layman would have no difficulty in appraising it. Neither exception applies to the present case.”

In Graham v. St. Luke’s Hospital, 46 Ill App2d 147, 196 NE2d 355, the court discussed circumstances under which exception to the general requirement of expert testimony would be made. In holding expert testimony necessary in the particular injection case before it, the court said at page 158:

“The rule is that expert testimony is not required if the negligence is so grossly apparent or the treatment is of such a common occurrence that a layman would have no difficulty in appraising it. (Citing authorities.) The rule has been applied to cases involving anesthesia, tonsillectomy, X rays and in some cases injections.”

It is apparent that the charges in plaintiff’s complaint concerning defendants’ lack of skill and care in the treatment of plaintiff required more than common knowledge and experience to understand and thus were not within the common comprehension of laymen. (Compare Newman v. Spellberg, 91 Ill App2d 310, 234 NE2d 152.) Since plaintiff failed to indicate that he had expert medical opinion to sustain the charges in his complaint, or that he would be able to obtain such opinion in the future, the trial court correctly entered a summary judgment in favor of the defendants.

The proving of negligence in medical malpractice cases usually depends upon the ability of the plaintiff to secure the services of a member of the medical profession to give expert testimony as to the proper method of treatment in the particular case. The reluctance of the members of the medical profession to testify against a fellow disciple of Aesculapius makes the search for a medical expert very difficult in most cases and well-nigh impossible in some cases. For this reason the trial courts should be extremely cautious in entering summary judgment in this type of case.

Here, however, plaintiff did not urge in the trial court, nor does he urge in this court, that he has, intends to, or may be able to prove his case by expert testimony. Therefore, there is no triable issue of fact for us to consider. The judgment of the Circuit Court of Marion County is affirmed.

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.