author: TRAPP, J. CRAVEN, J., dissenting:

text:
    Estate of Adolph Karolkiewicz, Deceased. Chester Karolkiewicz and Stella Powell, Petitioners Appellees, v. Chester Kary, Respondent-Appellant.
    Gen. No. 52,067.
    First District.
    October 16, 1968.

      CRAVEN, J., dissenting.
    Paul F. Sandquist, of Chicago, for appellant.
    Ronald S. Davis and Thaddeus L. Kowalski, of Chicago (Ronald S. Davis, of counsel), for appellees.
   TRAPP, J.

This is an appeal from a judgment of the Circuit Court ordering the respondent, Chester Kary, to pay to petitioners, Chester Karolkiewicz and Stella Powell, the sum of $16,787.56. This sum was two-thirds of the estate of Adolph Karolkiewicz. Chester Kary was the son and sole heir of decedent. A motion for summary judgment was allowed.

The petitioners alleged that they were the brother and niece of the decedent, that prior to decedent’s death they took care of decedent in return for decedent’s promise to leave his money to petitioners, that said moneys were deposited in three savings and loan accounts and in a Chicago Park District Benefit, and that decedent gave petitioners his bankbooks covering the said deposits.

The petition further alleged that following the death of Adolph Karolkiewicz, the respondent entered into a written agreement with petitioners that respondent would pay petitioners two-thirds of whatever moneys he would receive from the estate in consideration of petitioners’ forbearance with regard to making a claim against the

estate. The agreement, written on stationery of an attorney under date of February 25, 1966, being fifteen days after decedent’s death, is as follows :

“We, CHESTER KARY, formerly known as CHESTER KAROLKIEWICZ, CHESTER KAROLKIE-WICZ and STELLA POWELL desire to make an agreement whereby the property of ADOLPH KAROLKIEWICZ is to be divided in equal shares among the three of us. The share division is to be made after the following bills are paid:
“1. Illinois Masonic Hospital $ 156.25
“2. Ambulance charges 20.00
“The approximate assets of the late Adolph Karolkiewicz are:
“1. Silver Leaf Savings and Loan Account
# 52634...................... $5,881.00
“2. Clyde Savings and Loan Account,
# 88041...................... 9,000.00
“3. Clyde Savings and Loan Account
#85931...................... 9,000.00
“4. Chicago Park District Benefit 420.66
“This agreement is to be made pursuant to and in recognition of the care and affection given to Adolph Karolkiewicz by his brother, Chester Karolkiewicz and his niece, Stella Powell.
“We desire Joseph C. Michelotti to represent us as attorney in preparing the agreement and to represent Chester Kary in the matters relating to the estate of Adolph Karolkiewicz, deceased.
s/ CHESTER KAROLKIEWICZ
s/ CHESTER KARY
s/ STELLA POWELL
“I hereby acknowledge receipt of the above described account books and Park District letter.
S/ THERESA L. LEWENDOWSKI
Trustee”

The petition further alleged execution by Chester Kary, on the same date of the following assignment:

“KNOW ALL MEN BY THESE PRESENTS, that I, Chester Kary, formerly known as Chester Karolkiewicz, the undersigned, in consideration of the care and affection bestowed upon my late father, ADOLPH KAROLKIEWICZ, and One ($1.00) Dollar and other good and valuable consideration, hereby assign to THERESA L. LEWENDOWSKI, as Trustee, all my right, title and interest, of every kind and nature, whether as heir or otherwise, in and to the real and personal estate of my father, ADOLPH KAROLKIEWICZ, deceased, and hereby authorize THERESA L. LEWENDOWSKI, as Trustee, or her successor, as administrator of the Estate, to pay over or deliver to CHESTER KAROLKIEWICZ, my uncle, STELLA POWELL, my cousin and myself, each a one-third (%) share of all money or property of any kind and description that may be due me as the only heir at law of Adolph Karolkiewicz, deceased. Further it is my intention that the hospital bill and ambulance fees be paid from said sum before any division be made.
“I wish to retain Joseph C. Michelotti as Attorney to take charge of any legal matters in connection with the Estate of Adolph Karolkiewicz, deceased.
“Dated at Chicago, Illinois this 25th day of February A. D. 1966.
S/ CHESTER KARY. (Seal)”

The instrument was acknowledged before a notary public as the free and voluntary act of the signer.

The petition further alleged that pursuant to the agreement and the assignment, petitioners turned the bankbooks over to Chester Kary and his agents, but that respondent then expressed his intention not to pay said moneys to petitioners.

Petitioners prayed an order setting aside two-thirds of the funds of the estate pursuant to the agreement, and alternately prayed that two-thirds of the estate funds be set aside for petitioners’ benefit because the transaction constituted a consummated gift.

Respondent’s answer admitted the existence of the funds, denied that decedent prior to his death promised his "money to petitioners in return for their caring for him, and denied that petitioners cared for decedent. It also admitted that petitioners had possession of the bankbooks, but denied that decedent gave them possession.

Respondent admitted signing the two agreements of February 25, 1966, but alleged that they were of no legal effect in giving petitioners any interest in the deposits and benefit.

Basically, the petitioners contend that the pleadings leave no essential issue of fact to be determined, and respondent contends that issues of fact were presented which should have prevented the entry of a summary judgment.

Petitioners base their contention first upon the ground that the allegation in paragraph 4 of the petition that “in consideration of petitioners’ forbearance with regard to making a claim upon the estate,” respondent promised to pay was not specifically denied by the answer. As previously noted, respondent admitted signing the agreements, but denied that they had the legal effect of giving petitioners an interest in the property. Respondent replies that the agreement purports to rely upon a different consideration, to wit: “care and affection” and not forbearance and the sole matter to be considered is the sufficiency of the recited consideration.

While the form of the pleadings is not the most apt, the narrow question whether there was an admission of sufficient forbearance to give rise to a legal claim is otherwise resolved unfavorably to the petitioners. In paragraph 2 of the answer, respondent denied that there was any promise by decedent to give money for services rendered, and also denied that services were rendered. Respondent thus denied the basis for any claim with reference to which forbearance could have any legal operation. This, taken together with respondent’s allegation in paragraph 4 that the signing of the papers created no legal interest in petitioners, was sufficient to raise an issue and to prevent a summary judgment based solely upon the allegations of forbearance.

On this issue we are not persuaded by respondent’s position that because forbearance is not specifically referred to in the written agreements it is excluded as a basis of liability. It is enough to say that not only do the recitations of consideration fail to state that such is the sole consideration, but the simultaneously executed assignment refers to “other good and valuable consideration.”

We have no trial court memorandum which suggests the basis for the summary judgment, but we find contentions, that if concurred in, would support the judgment irrespective of the issue of consideration through forbearance.

Petitioners cite several authorities to the effect that the agreements recite sufficient consideration on their face when they recite (in the assignment): “One ($1.00) Dollar and other good and valuable consideration.” Hazle v. Bondy, 173 Ill 302, 50 NE 671, holds that in the absence of testimony regarding the actual consideration, the court cannot assume that with the foregoing language that the consideration recited was merely nominal. Van Sickle v. Harmeyer, 172 Ill App 218, is to the same effect, and adds “The true consideration may always be shown by parol, even though it is different from that expressed in the deed,” (citing Union Mut. Life Ins. Co. v. Kirchoff, 133 Ill 368, 27 NE 91; Worrell v. Forsyth, 141 Ill 22, 30 NE 673, and Howell v. Moores, 127 Ill 67, 19 NE2d 863). Petitioners also cite Klass v. Hallas, 16 Ill2d 161, 157 NE2d 261, that natural love and affection of a father for a daughter is sufficient to support a conveyance, and Mc-Farlane v. Williams, 107 Ill 33, to the effect that where there is a recital of adequate consideration, the burden is upon the person attacking the validity of the consideration to show the inadequacy clearly.

The foregoing points and authorities cited by petitioners all beg the question of the right to a summary judgment on pleadings where the fundamental basis of consideration is denied. The answer denies the existence of the care. No opportunity was afforded to maintain the burden of establishing the lack of care.

Petitioners next cite numerous authorities which, they say, hold that a seal on an instrument imports a consideration. In order to sustain petitioners’ claim of a right to a summary judgment, these authorities would have to make the existence of a seal conclusive upon the question of consideration in the absence of proof of fraud in the execution. The cases cited are actions at law where the rule stated by petitioners was frequently employed. Whyte v. Rogers, 303 Ill App 115, 24 NE2d 745, was an exclusive real estate listing for a limited time on definite terms where the consideration was apparent even without the seal involved. Lurie v. Linderman, 11 Ill App2d 76, 136 NE2d 588 (covenant not to sue); Woodbury v. United States Cas. Co., 284 Ill 227, 120 NE 8 (release of an insurance claim); Hartley v. Chicago & A. R. Co., 214 Ill 78, 73 NE 398 (release of injury claim), are claim settlements and not executory contracts. Chamberlain v. Fernbach, 118 Ill App 145, was a sealed appeal bond which again involves a litigated claim. Gray v. Bloomington & N. Ry., 120 Ill App 159, like Whyte v. Rogers above, show apparent consideration entirely apart from the seal.

In equity a seal has not been considered a bar to inquiry by the court into the consideration. Our courts have quoted Pomeroy repeatedly as follows: “Equity will never enforce an executory agreement unless there was an actual valuable consideration; and, unlike the common law, it does not permit a seal to supply the place of a real consideration.” 4 Pomeroy’s Eq Jur, § 1293. Crandall v. Willig, 166 Ill 233, 46 NE 755; Mills v. Larrance, 186 Ill 635, 58 NE 219; Corbett v. Cronkhite, 239 Ill 9, 87 NE 874. Such authorities also held the parties were not bound by the recitals of consideration.

Since it is known that the appearance of a seal, especially the printed or typed seals, adds no real significance to the solemnity of the instrument, courts have given less weight to the existence or nonexistence of the seal. In People v. Ford, 294 Ill 319, 128 NE 479, Justice Dunn held a statutory requirement of a seal on corporate papers immaterial to the validity of the papers, saying:

“The solemnity of the sealed instrument is purely Pickwickian and no longer represents an idea.”

Finally, the General Assembly, in 1951, enacted the following statute regarding seals (Ill Rev Stats, c 30, § 153b):

“The use of private seals on written contracts, deeds, mortgages or any other written instruments or documents heretofore required by law to be sealed, is hereby abolished, but the addition of a private seal to any such instrument or document shall not in any manner affect its force, validity or character, or in any way change the construction thereof.”

There is an extensive, though not conclusive, note upon this statute in Illinois Law Forum, 1954, Vol 1, p 113 et seq. (see especially p 118).

Since the sealed instrument in this case is the purported assignment in the form of a trust, and since petitioners seek specific performance thereof, we have no doubt that in any event the equitable jurisdiction of the court has been invoked.

We hold that the matter of failure or, as here contended, absence of consideration is open to inquiry. We hold also that the recitation of consideration over the signature of the respondent is prima facie evidence of consideration, and the burden is upon the respondent to prove lack of consideration.

This is a suit against the heir on his contract, and not a suit against the estate. The only theory upon which consideration could be founded is the theory of forbearance in regard to a claim against an estate, which would affect respondent if successful.

The true inquiry is whether there was a substantial basis for a claim which petitioners would have had against the estate of Adolph Karolkiewicz, and did they in fact forbear prosecution of this claim by reason of this agreement. A sine qua non would be proof of such substantial services for the decedent that payment for such services might normally be expected. The alleged promises of the decedent in such case would not be important as binding promises, but could be material on the question whether petitioners’ services, if any, were rendered as a family favor, or with the expectation of payment. Since this is a suit against the heir on his contract and not against the estate, we find no bar to petitioners testifying as to the basis for the claim which they say, in effect, they compromised by this agreement.

We find no substantial basis for petitioners’ claim that the instruments can be treated as a completed gift from respondent.

The judgment of the Circuit Court is reversed, and the cause is remanded for trial upon the merits in accordance with the suggestions herein.

Reversed and remanded.

SMITH, P. J., concurs.

CRAVEN, J., dissents.

CRAVEN, J., dissenting:

As I view the record in this case, there is no genuine issue of material fact to be determined at a trial upon the merits. The action of the circuit court in granting the motion for summary judgment was, therefore, correct, and I would affirm.

The record in this case establishes that, at the time of the death of the decedent, the petitioners had possession of certain passbooks relating to deposits in various institutions. The respondent wanted the passbooks. The petitioners asserted a claim for their services in caring for the decedent and also asserted a gift to them of the funds represented by the passbooks. This impasse between the parties was resolved by the agreement and assignment, by the terms of which the petitioners would each get one-third of the net estate and the respondent the remaining one-third. This agreement recited the care and affection given the decedent by the petitioners as well as “One ($1.00) Dollar and other good and valuable consideration.”

It seems evident that the parties resolved and compromised their conflicting claims and, by the execution of the agreement, the respondent acknowledged the care and affection recited therein. By their petition seeking to enforce the agreement, the petitioners assert the fact of the agreement, allege the turning over of the passbooks and further assert that there was forbearance by the petitioners with regard to making a claim upon the estate of the decedent. The respondent, by his answer, denies the care; he does not deny the forbearance; he admits the signing of the agreement, but in pure conclusionary language asserts that the agreement is of no legal effect.

The mere assertion that the agreement is of no legal effect does not create a material fact to be ascertained in a trial. Forbearance in asserting a claim, whether legal, equitable, certain or doubtful, provided it is not utterly groundless, is sufficient consideration for a promise made on account of such forbearance. 17 CJS, Contracts, § 103, at 815; 12 ILP, Contracts, § 90, at 249; 78 ALR2d 1410. Thus, as I view this record, the majority opinion remands the case to ascertain a matter that is neither material nor relevant in view of the other considerations established by the record.


source: Caselaw Access Project

license: Public Domain

text:
    Acme Secret Service, Ltd., an Illinois Corporation, Plaintiff-Appellee, v. Irene Alexander, Defendant-Appellant.
    Gen. No. 51,413. (Abstract of Decision.)
    First District.
    October 16, 1968.
   Opinion by JUSTICE GOLDENHERSH. Not to be published in full.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Mitchell Mosley (Impleaded), Defendant-Appellant.
    Gen. No. 49,759.
    First District, Third Division.
    October 17, 1968.

      Alan R Orschel, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a non jury trial held on April 23, 1964, defendant was convicted of the offense of robbery and sentenced to serve three to five years in the State Penitentiary. He has served the sentence but still has the right to appeal. Burns v. People, 9 Ill2d 477, 138 NE2d 525; People v. Shambley, 4 Ill2d 38, 122 NE2d 172; People v. Williams, 4 B1 App2d 506, 124 NE2d 537. In his Points and Authorities the defendant contends that the trial court committed error when evidence of his written confession was admitted without a preliminary hearing as to its voluntariness and that he was not proven guilty beyond a reasonable doubt. The facts follow.

Emma Lee Walton testified that on October 24, 1963, she pawned her watch for $7 and bought a pint of wine. After having a drink of the wine she proceeded with a friend to her father’s apartment at 4332 Calumet Avenue in Chicago. She entered the building and was knocking on her father’s door when she saw the defendant enter the building. She testified that he grabbed her with one arm around her waist and with the other hand he reached into the pocket of her slacks. He removed $6 in cash, some change and a pawn ticket and ran away. Two days later she picked the defendant out of a lineup of six or eight men at the police station.

Paul Tillman, a Chicago Police Department detective, testified that after Miss Walton identified the defendant, he took a written statement from the defendant at the police station in the presence of Miss Walton and a clerk. Tillman testified that the defendant had confessed to him that he followed Miss Walton to 4332 Calumet Avenue, that he observed a bill sticking out of her pocket and that he pulled it out of her pocket as she entered the building. No objection was made to that testimony. The State then offered the signed written confession which was admitted over the defendant’s objection.

Defendant’s own testimony is in substantial accord with that of the written confession. He testified that he observed Miss Walton walking ahead of him with a $5 bill sticking halfway out of her pocket and that she was staggering as if drunk. While she was still on the sidewalk he pulled the bill out of her pocket and walked across the street. He further testified that after he was arrested, Tillman and three other police officers handcuffed him to a chair, struck him in the stomach and covered his head with a plastic bag until he lost consciousness five times before he agreed to sign the written confession.

Defendant’s attorney then moved to suppress the confession. The court held that it was too late to make the motion. His attorney informed the court that the defendant had made a written pro se motion to suppress before the case was transferred to Judge Harewood. The court nevertheless overruled the motion.

As to defendant’s contention that it was error not to have had a hearing on the admissibility of the confession, the State contends that the defendant was accorded the equivalent of a hearing since all the witnesses who might have been presented at such hearing had been heard by the trial judge during the course of the trial. The State also contends that by failing to bring the motion to suppress to Judge Harewood’s attention after the case had been transferred to him and before the trial began, the defendant had waived his right to a preliminary hearing on the issue of voluntariness. Lastly the State contends that the error was not prejudicial because the defendant admitted the facts contained in the statement by his testimony at the trial.

When a defendant moves to suppress a confession on the ground that it was not voluntary, the trial court must conduct a hearing in which the State must prove by a preponderance of the evidence that the statement was made voluntarily. The court is obliged to hold a hearing on admissibility even if the defendant does not request one. People v. Jackson, 31 Ill2d 408, 202 NE2d 465; People v. Taylor, 33 Ill2d 417, 211 NE2d 673. At such hearing the State to discharge its burden of proving that the confession was voluntary must produce all persons present when the statement was taken or account for their absence. People v. Wright, 24 Ill2d 88, 180 NE 2d 689; People v. Dale, 20 Ill2d 532, 171 NE2d 1. We have come to the conclusion, however, that the failure to hold such a hearing was harmless error and was not prejudicial to the defendant’s case. People v. Strader, 23 Ill2d 13,177 NE2d 126.

Defendant admits that he took the money from Miss Walton’s pocket, and the only factual question left for the trial court’s determination was whether defendant grabbed her around the waist as she testified or whether his denial that he grabbed her was to be believed. In both his written statement and his testimony at the trial the defendant denies touching Miss Walton. The trial judge in finding the defendant guilty expressly stated that he did not believe the defendant and that he believed Miss Walton’s testimony that the defendant grabbed her around the waist and forcibly removed the money from her pocket. Defendant could not have been prejudiced by the admission of a written statement which corroborated his own testimony and which in any event was expressly disbelieved by the trier of fact.

Defendant’s second contention is that he was not proven guilty beyond a reasonable doubt. He does not deny he took the money from Miss Walton’s pocket. He denies only that he grabbed her around the waist as he did so. He admits the taking but denies the use of force in the taking and therefore contends that he was not proven guilty of robbery. Ill Rev Stats, c 38, § 18-1 (a) (1967). Although defendant denies that he touched Miss Walton, she testified that he grabbed her forcibly around the waist when he removed the money and pawn ticket from her pocket. The question of credibility of witnesses is for the trier of fact and there is evidence to support the finding that defendant was guilty of robbery beyond a reasonable doubt. The judgment is accordingly affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SULLIVAN, J., concur.


author: MR. JUSTICE DAVIS

text:
    Joseph Baron and Virginia Baron, Garnishor-Appellee, v. Catarino Villareal, Defendant, Coronet Insurance Company, Garinishee-Defendant-Appellant.
    Gen. No. 68-25.
    Second Judicial District.
    October 18, 1968.

      M. A. Haft & Associates, of Chicago, for appellant.
    Paulson and Ketchum, of Chicago, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The narrow issue presented by this appeal is whether the plaintiffs, judgment creditors of Catarino Villareal, an uninsured motorist and tort-feasor in the accident in question, can recover from Coronet Insurance Company (Coronet) — their insurer — by garnishment proceedings, the amount of the judgments rendered in their favor and against Villareal.

On April 9, 1963, Adams Mutual Insurance Company issued its combination Automobile Policy with a Family Protection Endorsement to the plaintiff Joseph Baron, whose wife Virginia Baron was an additional insured thereunder. The garnishee defendant, Coronet, assumed Adams Mutual Insurance Company’s liability under the policy. Under the Family Protection Endorsement, Coronet, subject to certain conditions, agreed to pay all sums which the insured should be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury.

Under the Insuring Agreements of the policy, with reference to “Damages for Bodily Injury caused by Uninsured Automobiles,” Coronet agreed:

“To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury,’ sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of the endorsement, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree and the insured so demands, by arbitration” (Emphasis Ours.)

The endorsement under the heading of “Conditions,” provided:

“6. Arbitration: If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this endorsement, then, upon written demand of such person, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this endorsement.”

and

“9. Action Against Company. No action shall lie against the company unless, as a condition precedent thereto, the insured or his legal representative has fully complied with all the terms of this endorsement.”

Under the entitlement “Exclusions,” it is provided:

“This endorsement does not apply: . . .
“(b) to bodily injury to an insured, or care or loss of services recoverable by an insured, with respect to which such insured, his legal representative or any person entitled to payment under this endorsement shall, without written consent of the company, make any settlement with or prosecute to judgment any action against any person or organization who may be legally liable therefor; . . .”

On September 3, 1963, Joseph Baron and Virginia Baron, his wife, filed a complaint against Catarino Villareal, defendant, charging that he negligently, while under the influence of intoxicating liquor, drove his car into the rear end of the plaintiffs’ car, and that as a result thereof, the plaintiffs sustained permanent injuries and damages to their automobile. The defendant filed an answer to said complaint and, upon trial, two separate verdicts were rendered by a jury whereby each plaintiff was awarded damages in the sum of $2,500. On May 10, 1966, judgments were entered on these verdicts, and such judgments are the basis for the garnishment action against Coronet.

On January 19, 1967, the attorney for the plaintiffs filed an affidavit in the original negligence action for the garnishment of Coronet, which stated:

“4. I believe Garnishee, Coronet Insurance Company, is indebted to the judgment debtor, or has in its possession, custody or control, property belonging to him, or in which he has an interest.”

Interrogatories were addressed to and answered by Coronet wherein it stated that when served with summons it did not have in its possession, custody or control, any property belonging to the judgment debtor, or in which he had an interest; and that at such time it was not otherwise indebted to him, no matter when payable.

Coronet’s answers to the interrogatories were contested at a bench trial wherein the magistrate denied Coronet’s motion for judgment at the close of the plaintiffs’ evidence and at the close of all evidence. Subject to certain conflicts, evidence was offered by the plaintiffs and Coronet which, in summary, indicated that the plaintiffs’ attorneys were in contact with Coronet from time to time after the accident and prior to the entry of the judgments in the original action; that plaintiffs never made a written demand for arbitration, although they wrote a letter requesting Coronet to advance $200 as the costs for arbitrating the cause, and Coronet did not answer such letter; that plaintiffs never received the written consent of Coronet to prosecute the action to judgment; and that the plaintiffs, in an effort to effect a settlement with Coronet, offered to dismiss the action in question and to arbitrate the controversy.

Apparently, this evidence, which we regard as immaterial to the issues of the garnishment proceeding, was considered by the magistrate, who on November 6, 1967, entered judgment in favor of the plaintiffs and against Coronet in the sum of $5,035.60 and costs. Coronet appealed from this judgment.

Coronet contends that since it had no property in its possession, custody or control at the time of the service of the summons, which belonged to Villareal, and since it was not then otherwise indebted to him, it should have been discharged; that under the law a fund is not subject to garnishment if the judgment debtor could not maintain an action therefor; and that the garnishment statute must be strictly construed. Coronet likewise asserts that the magistrate erred in various evidentiary rulings.

The plaintiffs urge that garnishment was a proper proceeding in the case at bar, and that Illinois case law allows a garnishment action against an insurance company on its assumed liability. The plaintiffs offer other peripheral points to support their garnishment judgment, but they rise or fall with their primary contention.

The purpose of the Garnishment Act is to make available assets of a judgment debtor for application in payment of the judgment against him. Garnishment was unknown at common law and rests wholly upon statute. Roth v. Kaptowsky, 401 Ill 424, 429, 430, 82 NE2d 661 (1948).

The Garnishment Act of 1872 was repealed and comprehensively revised by the new Act of 1959. The proceeding at bar is governed by the new Act. Section 1 of the Act provides:

“Upon the filing by a judgment creditor or other person of (a) an affidavit that the affiant believes any person is indebted to the judgment debtor, other than for wages, or has in his possession, custody or control any other property belonging to the judgment debtor, or in which the judgment debtor has an interest, and (b) written interrogatories to be answered by that person with respect to the indebtedness or other property, the clerk of the court in which the judgment was entered shall issue summons against the person named in the affidavit commanding him to appear before the court as garnishee and answer the interrogatories in writing under oath.” (Illinois Rev Stats 1967, c 62, par 33.)

Section 4 provides for the issuance of summons with interrogatories and the return thereof; section 11 specifies the procedure for the contest of the truth or sufficiency of the garnishee’s answer and provides for the entry of judgment. (Illinois Rev Stats 1967, c 62, pars 36, 43.)

Section 1 of the new Act is derived from the first unnumbered paragraph of former section 1 of the Act of 1872, consequently, decisions relative to this portion of section 1 are applicable under the old as well as under the new Act. In the early case of Webster v. Steele et al., 75 Ill 544 (1874), at page 546, the court stated:

“As was said in May v. Baker, 15 Ill 90, the indebtedness referred to in the statute is legal indebtedness, such as could be enforced in a court of law by an action in the name of the defendant in attachment against the garnishee. The principle is, that process of garnishment, being a legal proceeding given by statute, only entitles a party to recover such indebtedness as could be recovered by an action of debt, or indebitatus assumpsit, in the name of the attachment or judgment debtor against the garnishee. And so the authorities elsewhere hold. Harrell v. Whitman, 19 Ala 135; Hassie et ux. v. G. I. W. U. Congregation, 35 Cal 378.
“The statute will bear no other construction than that heretofore given to it. The reason is obvious. By the practice which obtains in this State, the judgment against the garnishee must be rendered in favor of the attachment or judgment debtor, for the benefit of the attachment or judgment creditor, who is the real plaintiff, against his own debtor. Whatever surplus there may be after paying the creditor belongs to the debtor in whose name the suit is prosecuted. This is according to the analogies of the law, for in all actions at law the suit must be in the name of the party in whom is the legal interest of the subject matter. Stahl v. Webster, 11 Ill 511."

The garnishment process is not a distinct and separate suit, but an ancillary or additional step in the original action for judgment. It is remedial in nature and designed to reach property belonging to the judgment debtor after ordinary execution has failed. Zimek v. Illinois Nat. Cas. Co., 370 Ill 572, 574, 19 NE2d 620 (1939).

Our courts have frequently held that a claim asserted by a judgment creditor against a garnishee must be one which the judgment debtor himself could have maintained. Bank of Homewood v. Gembella, 48 Ill App2d 316, 319, 199 NE2d 293 (1964); Morphet v. Morphet, 19 Ill App2d 304, 307,152 NE2d 492 (1958); Schmitz for Use of Ginsburg v. 75th & Exchange Drug Co., Inc., 303 Ill App 192,196,197, 24 NE2d 889 (1940).

In the case at bar it cannot properly be asserted that Villareal, the judgment debtor, could maintain any claim against Coronet by virtue of the Family Protection Endorsement of the policy issued to Joseph Baron, wherein Coronet agreed, subject to certain conditions, to pay all sums which Baron was legally entitled to recover as damages from the owner or operator of an uninsured automobile (Villareal) because of bodily injury.

The plaintiffs state in their brief that “Illinois case law allows an injured party of an automobile accident to sue the negligent party in tort, obtain a judgment therefrom, and then proceed in garnishment to collect from the negligent driver’s insurance company.” This general statement is true, but it has no application in the case at bar, where the plaintiffs in the garnishment proceeding seek to garnishee their own insurance company rather than that of the negligent driver. Coronet has no liability to Villareal, the tort-feasor, under its policy.

Consequently, we cannot agree with the plaintiffs that the principle which they assert authorized the garnishment judgment in this case, either by direct application or by analogy.

We conclude that garnishment is not a proper remedy whereby the plaintiffs can recover from Coronet, and that the garnishee judgment in favor of the plaintiffs and against Coronet in the sum of $5,035.60 and costs, must be reversed. However, we are not adjudicating the question of whether or not the plaintiffs, in a proper action, can recover against Coronet under the facts of this case.

Judgment reversed.

ABRAHAMSON, P. J. and SEIDENFELD, J., concur.


author: MR. JUSTICE MORAN

text:
    Daniel L. Waloszyk, Plaintiff-Appellee, v. Colonial Motor Sales, Inc., an Illinois Corporation, Defendant-Appellant.
    Gen. No. 68-39.
    Second District.
    October 18, 1968.

      Richard C. Hamper, of Aurora, for appellant.
    Edwards & Parker, of Aurora, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This appeal brought by the defendant, Colonial Motor Sales, Inc., is from a judgment entered after a bench trial before a magistrate wherein the plaintiff, Daniel L. Waloszyk, was awarded $1,461.34.

In November, 1964, a salesman of the defendant stated to the plaintiff, at the latter’s place of business, that his company had a used 1963 Opel car which the plaintiff might be interested in purchasing. Subsequently, the salesman drove the car to plaintiff’s place of business for the purpose of allowing the plaintiff and his wife to examine it. The plaintiff, who was desirous of using the car in his business, inquired if repair parts would be available in case they were needed. The salesman answered, “I am pretty sure we have (them).” However, at the insistence of the plaintiff, the salesman telephoned the parts department of the defendant and reported his conversation to be that parts were available and that any local dealer would have parts for them. Defendant was not a dealer in this type of automobile. Based upon this conversation, the plaintiff purchased the automobile.

In January, 1965, plaintiff was in a minor accident and one of the wheels of the car was damaged slightly. After making inquiries about repairs at other local establishments, plaintiff took the automobile to defendant’s place of business. Although it is uncertain who plaintiff talked to, plaintiff testified that the defendant’s “shop manager” called him and said that they could not replace the wheel but that they could fix it or straighten it out; that, however, the car would steer hard and they could not guarantee the job. Plaintiff further testified that the “shop manager” told him that in order to do the job in the correct manner, the parts should be replaced and that parts could be sent for, but it would take a while to get them. After having asked for his money back and being refused, plaintiff left the automobile at defendant’s place of business without any understanding as to its disposition.

The plaintiff filed a complaint, fully setting forth the necessary allegations of misrepresentation. The prayer of the complaint requested a rescission of the contract of sale, damages in the sum of $2,000 and an express finding of fraud and malice as the basis of the said judgment.

The order of the trial court expressly found that the plaintiff failed to prove neither malice nor fraud, upon which the complaint was based, but, nevertheless, entered judgment rescinding the sale and allowed the plaintiff a money recovery as heretofore stated.

We are of the opinion, after a review of the record, that the magistrate was correct in finding that the plaintiff failed to prove the allegations of fraud contained in his complaint. However, we are also of the opinion that the magistrate was in error for entering an order of rescission and money judgment.

Plaintiff argues that the trial court found representations were made to him, that he relied upon them, that the representations were in fact untrue and therefore under the facts and law he was entitled to a rescission. We were not furnished the benefit of any citations upon this proposition.

Plaintiff further argues that a contract may be rescinded because of a material mistake of fact. His citations are correct, but in those cases the complaint set forth the allegations necessary to prove mistake. The complaint neither alleged recovery based upon mistake nor was this theory presented, as far as the record discloses, to the trial court. Also, we fail to find any amendment of the complaint to have the pleadings conform to the proof.

It will not be necessary to unduly extend this opinion as we conclude that the case before us comes within the law set forth in the case of Broberg v. Mann, 66 Ill App2d 134, 137-138, 213 NE2d 89 (1965) and it is therefore necessary that the judgment of the trial court be reversed.

Judgment reversed.

DAVIS and SEIDENFELD, JJ., concur.


author: MR. JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Young, Defendiant-Appellant.
    Gen. No. 51,199.
    First District, First Division.
    October 21, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (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 and Howard Levine, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant, Willie Young, was indicted and tried for the murder of Beatrice Harding. After a bench trial in the Circuit Court of Cook County, Criminal Division, the defendant was found guilty of voluntary manslaughter and sentenced to a minimum of five and not more than ten years in the Illinois State Penitentiary. The defendant contends, on appeal, that upon the testimony offered at the trial, he should have been found not guilty of any crime in that the evidence showed he acted in self-defense, and also, that his rights were violated when the trial judge restricted his counsel’s cross-examination of a witness.

The first witness to testify was George Watkins, 80 years old, common-law husband of the deceased, Beatrice Harding. According to Mr. Watkins, he and Beatrice Harding were in their apartment at 3144 South Indiana Avenue, Chicago, Illinois, on February 25, 1965, at approximately 4:30 in the afternoon. At that time, Willie Young, the defendant, arrived at the apartment and offered to buy them a drink. The defendant handed a dollar bill to the witness and told him to go and purchase some liquor. As the witness started for the door, he met another resident of the building who apparently had overheard the discussion and who volunteered to go and purchase the liquor. The defendant objected to this person going for the liquor, whereupon Beatrice Harding said she would go. Mr. Watkins handed the dollar bill to her and she reached to get her coat. At this point, she was approximately two feet away from the witness, standing directly between the witness and the defendant, with her back towards the witness and in a direct face-to-face confrontation with the defendant. Mr. Watkins continued to testify that her hands were at her side and that nothing was in her hands except for her right hand which was clutching the dollar bill. The defendant was standing in the doorway, approximately ten feet from her. Watkins could observe the defendant, but could not see the defendant’s hands. (Watkins stated on direct examination that he was standing up near the bed when Beatrice Harding was between him and the defendant, but on cross-examination he stated he was sitting down.) The witness continued to relate that he heard the defendant say “Don’t come no further.” Beatrice Harding moved forward, a shot was fired, and she fell to the floor. The defendant then turned around and walked out of the apartment. Watkins stated that he could observe the defendant but not the defendant’s hands; that he did not see the defendant take a gun from his person, but did see the firing of a gun; and could not remember whether there was one or two gunshots. He did not see any knife in the deceased’s hand or anywhere near her, nor was any knife found at the scene of the event.

Testifying on his own behalf, the defendant stated that he went to the residence of Beatrice Harding to see George Watkins. While conversing with Mr. Watkins, he gave Watkins a dollar bill to obtain some liquor. Beatrice Harding then walked towards the defendant and inquired whether or not he was going to buy Mr. Watkins and her some wine. Defendant replied he was not, whereupon Beatrice Harding insisted that he do so and stated “Son of a bitch you don’t get the wine I’m going to kill you.” As defendant backed away from her, she advanced towards him with a knife which defendant claims she took from her apron. Defendant managed to wrest the knife from her. She thereupon obtained another knife from atop her dresser stand and continued her advance towards him. Defendant told her not to come at him with the second knife, but she nevertheless advanced, threatening to kill him. Defendant thereupon drew his gun and shot her. He did not recall how many times he pulled the trigger. Defendant immediately left the apartment and went to a friend’s home. He did not recollect if he reloaded his gun or whether his friend did it for him. On cross-examination, the defendant admitted that after he gave Watkins the dollar bill, Beatrice Harding volunteered to go for the liquor, and Watkins gave the dollar bill to her.

Officer Charles Lawrence testified that he was directed to the 3100 block on Indiana Avenue to pick up the body and transport it to the hospital or morgue. When he arrived he observed the deceased, Beatrice Harding, lying on the floor in a pool of blood. There was a one dollar bill crumpled up in her right hand which he took and placed on the dresser.

Henry Spangelo, a Chicago police detective, testified that after receiving a radio message that the defendant was wanted in connection with a shooting, he and his partner proceeded to the vicinity of the crime. At about 7:00 p. m. that same evening they observed the defendant, who submitted to arrest without any resistance. The officers searched the defendant and discovered a fully loaded .38 caliber revolver in his waistband and a paring knife in his jacket pocket. The defendant told Detective Spangelo that he had shot the deceased in self-defense.

The parties stipulated that if Dr. Tapia, a coroner’s physician, were called to testify, his testimony would be that Beatrice Harding, 51 years old, was killed by a bullet wound of the brain, and that a blood analysis of the deceased indicated she had consumed five or six drinks on the day in question.

Two witnesses testified for the defense concerning the reputation of the deceased in the community. Jack Foster stated he knew the deceased for several weeks and had heard that “she would kill with a knife.” John Dye stated he knew the deceased four or five years and heard that she was a rough, mean woman and that she would cut people with a knife.

Defendant’s first contention is that evidence adduced at the trial shows that the defendant reasonably believed he was in fear for his life, and that he shot Beatrice Harding in self-defense. There is no question that on or about 4:30 p. m., on February 25, 1965, a woman went to her death; nor is there any question that her death was caused by a bullet discharged from a gun held by the defendant. The evidence presented by the State consisted primarily of the testimony of Mr. George Watkins, an eyewitness to the homicide, and the testimony of officer Spangelo, who apprehended the defendant and to whom the defendant admitted he shot Beatrice Harding in self-defense. We cannot agree with the defendant’s contention. Although Mr. Watkins’ testimony was contradicted by the defendant, and several discrepancies existed between the witnesses’ version of what occurred at the scene and the defendant’s version, there was no challenge to George Watkins’ competency to testify. In a bench trial it is the function of the trial court to determine the credibility of the witnesses and the weight to be afforded their testimony, and the trial court’s judgment as to the credibility of the witness will not be disturbed simply because there is a conflict in the testimony. People v. Clark, 30 Ill 2d 216, 195 NE2d 631 (1964), People v. Johnson, 47 Ill App2d 441, 198 NE2d 173 (1964). In People v. Bradley, 70 Ill App2d 281, 217 NE2d 434 (1966), we stated:

“. . . unless it can be said that the court’s judgment is found to rest on doubtful, improbable or unsatisfactory evidence, or clearly insufficient evidence, a reviewing court will not substitute its judgment for that of the court below even though evidence regarding material facts is conflicting and irreconcilable.”

No explanation of the whereabouts of the second knife Beatrice Harding allegedly possessed was offered at the trial, and the only knife offered in evidence was the paring knife taken from the defendant at the time of his arrest. George Watkins stated he had never seen the paring knife before until the defendant held it in his hand prior to shooting the deceased. Mr. Watkins witnessed the entire incident from beginning to end, and as previously stated, his credibility and the weight to be accorded his testimony were for the trial judge to determine. The testimony of one witness alone, when it is positive and the witness credible, is sufficient to sustain a conviction even though the testimony is contradicted by the accused. People v. Napper, 78 Ill App2d 451, 223 NE2d 194 (1967); People v. Miller, 30 Ill2d 110, 195 NE2d 694 (1964).

Chapter 38, section 9-2 (b), of the Illinois Revised Statutes, 1965, provides:

“§ 9-2 (b). A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.”

Section 7-1 provides:

“§ 7-1. A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.

The trial judge resolved the facts against the defendant, and upon our inspection of the record, these facts do not reveal that the defendant, Willie Young, acted in self-defense when he killed Beatrice Harding. Under all the circumstances, we are of the opinion that there existed no reasonable ground for the defendant to believe it was necessary for him to shoot the deceased to prevent imminent death or great bodily harm to himself. Defendant argues that People v. Brown, 78 Ill App 2d 327, 223 NE2d 311 (1967), is persuasive authority for the proposition that his belief that deadly force was necessary to protect himself from death or great bodily harm, was a reasonable belief. However, the Brown case is readily distinguishable from the instant case. In Brown, there was no independent eyewitness other than the defendant who testified to the facts and circumstances surrounding the homicide. The defendant did not have an exit to escape his pursuer, and also, the defendant stated that while being pursued by the victim, he thought the victim had a knife, but did not actually see it. A knife was found later at the scene by the investigating police officer. Neither People v. Honey, 69 Ill App2d 429, 217 NE2d 371 (1966), or People v. McClain, 410 Ill 280, 102 NE2d 134 (1952), also cited by the defendant, lend support to defendant’s contention.

Defendant next maintains his rights were violated when the trial court restricted his defense counsel’s cross-examination of a State witness. During the trial of the case, defendant’s counsel propounded certain questions to officer Charles Lawrence on cross-examination, concerning why the officer would not talk to him prior to trial. This was objected to by the prosecutor and sustained by the trial judge. Defendant contends that the trial court erred when it sustained these objections, as defense counsel had a right to request the reason why the police officer would not speak to him prior to the trial, and that the trial court restricted defense counsel from ascertaining if the police officer had been requested not to talk to defense counsel. The testimony that occurred is set forth below:

“Q. Did I ever have any conversation with you about this case?
“A. No.
“Q. Did I ever talk to you here in this courtroom?
“A. Yes.
“Q. Did you refuse to talk to me?
“A. Not in this courtroom, no.
“Q. Was it outside the courtroom?
“A. I stated to you at the time that if you wanted to ask me questions concerning the case that could be done on the bench for a matter of record.
“Q. Well, you were not willing to discuss this case with me before?
“Mr. Buck: Object. This is our witness.
“The Court: He may answer.
“A. Pardon me?
“Mr. Cohn: Q. You were not willing to discuss this case with me before you took the stand today, is that correct?
“A. That’s correct.
“Q. Were you told that you shouldn’t discuss this case with anyone by a superior officer or any other police officer?
“Mr. Buck: Object, immaterial.
“The Court: Sustained.
“Mr. Cohn: Q. Were you ever told this by the State’s Attorney?
“Mr. Buck: Object, immaterial.
“The Court: Same ruling, sustained.
“Mr. Cohn: Q. Is this your own decision not to talk to me?
“Mr. Buck: Object, immaterial.
“The Court: Sustained.”

At the outset, we note that officer Lawrence played a small role in the case. His assignment was essentially to pick up the body of Beatrice Harding and transport it to the hospital or morgue. He took no part in the investigation, had no interviews with neighbors or witnesses, and the knowledge he had of the case he related at the trial when called as a State’s witness. The defendant relies heavily upon Gregory v. United States, 369 F2d 185 (DC Cir 1966), and urges that the instant case falls within its holding. In the Gregory case, defense counsel asked for the assistance of the trial judge concerning his difficulty in interviewing witnesses to the events on trial. The prosecutor conceded to the trial judge that he advised eyewitnesses to the crimes not to speak to anyone about the case unless he, the prosecutor, was present. The prosecutor further advised the trial judge that the defense counsel’s request for assistance to interview these witnesses had already been denied by a motions judge. The trial judge then stated that this disposed of the matter. On appeal, the court held the prosecutor’s advice to the eyewitnesses precluded the means by which the defense could obtain evidence and also denied the defendant a fair trial.

We observe a multitude of differences between the Gregory case and the case at bar. In the instant case, officer Lawrence was not an eyewitness to the crime, he was merely sent to pick up the body at the scene; the defendant’s counsel did not ask the trial judge for assistance in interviewing officer Lawrence prior to the trial — instead, defense counsel waited until the trial, until cross-examination, to ask his questions; defense counsel did not allege the State’s Attorney precluded him from speaking to officer Lawrence, or had induced Lawrence not to speak to him. The record shows no evidence whatsoever that Lawrence was told not to speak to defense counsel, or that this was suggested to him; the State did not attempt to frustrate defense counsel’s preparation of the case or prevent defense counsel from interviewing Lawrence; defense counsel did not allege the means by which he could obtain evidence was suppressed, or that any evidence was suppressed; and that Lawrence himself made the decision that he was willing to talk to defense counsel in the courtroom concerning the case, but not outside the courtroom.

While the trial court has discretion to restrict the scope of cross-examination, People v. Cook, 78 Ill App2d 219, 222 NE2d 13 (1967), People v. McCain, 29 Ill2d 132, 193 NE2d 784 (1963), a case will be reversed only if such discretion has been clearly abused and such abuse materially affected the result of the trial. People v. Gilbert, 12 Ill2d 410, 147 NE 44 (1958); People v. Jones, 343 Ill 291, 175 NE 414 (1931). We therefore find that the trial judge’s sustaining of the objections to defense counsel’s questioning of officer Lawrence was a legitimate exercise of judicial discretion, as the line of inquiry sought by defense counsel was immaterial as to this witness. Furthermore, we find no substantial or prejudicial error was committed by the trial judge which infringed upon the rights of the defendant in this respect. Brady v. Maryland, 373 US 83, 10 L Ed2d 215, 83 S Ct 1194 (1963), is not applicable to the present case. Accordingly, the decision of the Circuit Court of Cook County, Criminal Division, is affirmed.

Judgment affirmed.

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


author: CRAVEN, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Clyde R. Routt, Defendant-Appellant.
    Gen. No. 10,920.
    Fourth District.
    October 21, 1968.

      Albert E. Hurt, Public Defender, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur (Frederick P. Erickson, Assistant State’s Attorney, of counsel), for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

In a jury trial, the defendant was convicted of the offense of murder. He was sentenced to the penitentiary for a term of not less than twenty-five nor more than fifty years. On appeal, he contends that his constitutional right to counsel and his constitutional right against self-incrimination was violated. The defendant also asserts that the trial court committed error in permitting a witness to be called as a court’s witness. Error in refusing an instruction is also asserted on this appeal.

On the night of November 19, 1966, Clarence Welch was shot while at the residence of Evelyn McNear. The defendant, Eoutt, lived with Evelyn McNear. At about 7 p. m. on the night of the shooting, Welch, in response to an earlier invitation, arrived at the McNear house. Mrs. McNear, the defendant and Welch sat around a kitchen table and conversed. Beer and liquor were being consumed by all three persons.

At around 8:45, Mrs. McNear left the kitchen area and entered a bathroom to prepare for bed. While there she heard three or four shots coming from the area of the kitchen. She came out of the bathroom, and the defendant told her to call an ambulance and the police as there had been an accident. She made the requested calls. In her testimony she described the defendant as being “shook up.” She stated she did not look in the kitchen.

Officer Glick of the Decatur Police Department was the first of four officers to arrive at the McNear house in response to her call. Upon his arrival he was admitted to the house and the defendant, in response to Click’s inquiry as to the nature of the problem, told the officer that Welch, who was lying on the kitchen floor, had shot himself. Upon later inquiry by Glick as to what had happened, the defendant told Glick that Welch came at him with a knife and that he shot him. The defendant gave Glick a gun.

Another officer, DiLullo, and two detectives arrived at the house. Soon thereafter it was determined that Mrs. McNear and the defendant should be taken to police headquarters by the two officers. Mrs. McNear was described as in a drunken stupor and transportation for her to police headquarters was sought by means of a police “paddy wagon.” The defendant was transported to police headquarters by the two officers. While en route to headquarters Routt was described as very talkative. While sitting in the back seat of the car with Officer DiLullo he told DiLullo, according to DiLullo’s testimony, that Welch had pulled a knife on him and that he shot him. Officer Glick advised the defendant to be quiet until such time as they reached headquarters, at which time detectives would talk to him. Routt was described as being quiet for awhile, then started talking again, stating, “I might as well tell the truth because it’s not going to make any difference anyhow, the guy is a troublemaker, always caused me problems, and I shot him.” Glick testified that he again admonished Routt not to talk, and no further relevant statements attributable to Routt while en route to the station are found in the record. There is no contention that Routt was warned of his right to counsel or of his right to remain silent, or in any other way informed of his rights so far as is here material.

The foregoing, established by the testimony of Officers Glick and DiLullo, was admitted into evidence without objection. No error was asserted as to the receipt of this testimony in the post-trial motion seeking a new trial.

At the time of the trial of this case the defendant was represented by privately retained counsel, and there are several pages in the record wherein the court discussed with the defendant the matter of his attorney. The court advised the defendant of certain aspects of other proceedings wherein the attorney of defendant’s choice had been involved in disciplinary or other proceedings. There is no contention made on this appeal that defendant’s trial counsel was incompetent.

We must first consider the defendant’s assertion, made here for the first time, that his statements to Police Officers DiLullo and Glick were involuntary and, being the equivalent of a confession, inadmissible for failure of the police officers to warn the defendant of his rights, as required in the case of Miranda v. Arizona, 384 US 436, 16 L Ed2d 694, 86 S Ct 1602, 10 ALR3d 974 (1966). We take it to be settled that the defendant cannot, for the first time on appeal, raise the question of the voluntariness of his confession. No objection was made to the testimony of the officers; no motion to suppress was made by defendant’s counsel; nor did he call for a hearing on the admissibility of that which he now elects to call a confession.

The failure to object in the trial court to the testimony now complained of, at a time when defendant had counsel, constituted a waiver. Further, however, and wholly separate from the waiver issue, under People v. Hartgraves, 31 Ill2d 375, 202 NE2d 33 (1964), and People v. Kees, 32 Ill2d 299, 205 NE2d 729 (1965), we would conclude that the confession was admissible.

As to the assertion of the application of the decision in Miranda, we do not see that that case is here relevant. Miranda does not apply to the initial interrogation at which the officer asked general questions, because by its language the United States Supreme Court specifically determined that “general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding.” (Miranda v. Arizona, 16 L Ed 2d 694, 725.)

The subsequent testimony of the police officers as to the conversations of the defendant en route to the police station is likewise not inadmissible by reason of the decision in Miranda. The evidence is clear and uncontroverted that while the defendant may well have been in custody for purposes of Miranda, there was no in-custodial interrogation at all. It is in-custodial interrogation that Miranda reaches. In re Orr, 38 Ill2d 417, 231 NE2d 424 (1967).

Mrs. McNear was called as a witness by the People. As the interrogation of the witness progressed, on motion of the State, the court permitted her to be called as a court’s witness and to be cross-examined by both sides. The defendant asserts that there was error in permitting her to be called as a court’s witness.

The practice of calling a person as a court’s witness at the request of the prosecution has long been recognized in Illinois. Carle v. People, 200 Ill 494, 66 NE 32 (1903). In People v. Johnson, 333 Ill 469, 165 NE 235 (1929), the Supreme Court restricted the use of this practice and imposed a requirement that there be a showing of manifest injustice if the witness did not testify. Whether a witness is to be called as a court’s witness is a matter largely within the discretion of the trial court. People v. Henson, 29 Ill2d 210, 193 NE2d 777 (1963); People v. Bell, 61 Ill App2d 224, 209 NE2d 366 (4th Hist 1965).

It is apparent from this record that the testimony of Mrs. McNear was material and relevant. It is equally apparent that she was hostile to the People and sympathetic to the defendant. Our examination of this record demonstrates that there was no abuse of discretion nor basic unfairness in allowing the motion of the People that she be called as a court’s witness.

The defendant tendered and the court refused an instruction relating to the defense of inevitable or unavoidable accident. The case of Belk.v. People, 125 Ill 584, 17 NE 744 (1888) is cited for the proposition that the instruction should have been given. The offered instruction reads:

“The defendant has introduced the defense of inevitable or unavoidable accident. Such a defense is a legal defense. It is not necessary that the defendant prove such a defense. If the proof be only sufficient to raise in the minds of the jury a reasonable doubt as to the guilt of the defendant, it is your duty to find the defendant not guilty.”

It is true, of course, that the defendant is entitled to an instruction on his theory of the case, and it is true here that the testimony of the defendant raised a fact issue that the shooting was accidental. See People v. Lefler, 38 Ill2d 216, 230 NE2d 827 (1967). The offered instruction, however, was not one required to be given in this case. The given instructions lead us to conclude that the jury were properly instructed in accordance with the law and the evidence.

The judgment of the Circuit Court of Macon County is affirmed.

Judgment affirmed.

SMITH, P. J. and TRAPP, J., concur.


author: MR. JUSTICE MURPHY

text:
    Marco Legones, Plaintiff-Appellant, v. License Appeal Commission of the City of Chicago, A. L. Cronin, Chairman, and Richard J. Daley, Local Liquor Control Commissioner of the City of Chicago, Defendants-Appellees.
    Gen. No. 52,192.
    First District, First Division.
    October 21, 1968.

      Wexler & Wexler, and Samuel S. Cohon, of Chicago, for appellant.
    Raymond F. Simon, Corporation Counsel, of Chicago (Marvin E. Aspen and Henry N. Novoselsky, Assistant Corporation Counsel, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is an administrative review action in which the Circuit Court affirmed the revocation of plaintiff’s City of Chicago retail liquor license for premises at -íSO^Ya North Sheridan Road, Chicago. On appeal, plaintiff contends that the findings and decision of the Local Liquor Control Commissioner are against the manifest weight of the evidence.

The order of revocation, entered by the Local Liquor Control Commissioner of the City of Chicago on November 1,1966, made the following findings:

1. That on January 6, 1966, during an altercation on the licensed premises, Devon C. Phillips, a patron on said premises, was assaulted by one Gene Jacobs, an employee of the licensee, in violation of the ordinances of the City of Chicago and the statutes of the State of Illinois.
2. That the licensee and his agents failed to protect said patron, failed to render aid to said victim and failed to notify the Police Department of said altercation.
3. That on April 23, 1966, Robert L. Willnow, bartender on the licensed premises, sold alcoholic liquor to a person under the age of 21 years, one Anthony G. Nahguaddy, a male 19 years, in violation of the ordinances of the City of Chicago and statutes of the State of Illinois.
4. That the licensee and his agents did on or about the 28th day of May 1966, serve alcoholic beverages to an intoxicated person, one Wayne Titchywy, a patron on said premises, in violation of the ordinances of the City of Chicago and statutes of the State of Illinois.

The License Appeal Commission of the City of Chicago sustained the revocation order, and on February 14,1967, a judgment order was entered in the Circuit Court which affirmed the order of the License Appeal Commission. This is the judgment from which the plaintiff has appealed.

The only issue on this appeal is whether the findings are supported by substantial evidence in the light of the whole record. Under the Administrative Review Act, the findings and conclusions of the local commissioner on questions of fact are held to be prima facie true and correct (Ill Rev Stats 1965, c 110, § 274). The reviewing court is limited to a consideration of the record to determine if the findings and orders of the local commissioner are against the manifest weight of the evidence. Nechi v. Daley, 40 Ill App2d 326, 336, 188 NE2d 243 (1963).

Considered first is the finding (1) that Phillips, a patron, was assaulted by Gene Jacobs, an employee of the licensee. At the hearing before the Liquor Control Commission, Police Officer Thomas Ahlford testified that on January 6, 1966, he had occasion to go to the premises at 4804% North Sheridan Road, and outside of the doorway he met Devon Phillips, who was bruised and bleeding about the mouth and his shirt was ripped. The officer and Phillips entered the tavern, and Phillips pointed out Gene Jacobs as the person who struck him. Jacobs said he was a bouncer and admitted that “he laid his hands” upon Phillips. While at the tavern, George Lardis told the police officer he was the owner of the place, and Phillips had been in the place before and had always caused trouble with the patrons. Phillips told the officer it was his first visit to Chicago, and he had never been in the place before.

The police officer took Christy (the bartender), Jacobs, Lardis and Phillips to the district police station, where Officer Daniel Pappas questioned all of them. Officer Pappas testified that Phillips said he had been refused another beer, and Jacobs and the bartender punched him and threw him outside. Phillips then called the police. Jacobs said he assaulted Phillips because Phillips was trying to cause trouble. Christy said he refused to serve Phillips another beer because he had enough. An argument ensued, and Christy assisted Jacobs in ejecting Phillips.

Officer Pappas further testified that Lardis said he was the owner and Jacobs was the bouncer. Lardis said Legones was the licensee, but he didn’t know where Legones was. Phillips did not want to sign a complaint. Officer Ahlford testified that Phillips had gone back to Mississippi the day after the occurrence.

Marco Legones, the licensee, was called as a Commission witness for the purposes of cross-examination and testified he was the licensee and sole owner of the tavern at 4804% North Sheridan Road, and that he also owned another tavern. He was not in the tavern on January 6, 1966, when a fight occurred. George Lardis was a bartender and not his partner in business.

Plaintiff’s witnesses included Roy Christy, who testified he was employed by Marco Legones at 4804% North Sheridan Road. On January 6, 1966, he refused to serve Phillips because he was drunk and dirty. He did not strike Phillips, nor did he tell the police that Lardis was the owner of the tavern.

Plaintiff’s witness, Gene Jacobs, testified he was a patron at the tavern on January 6, 1966, and did not know Phillips. “When the police came in with him he did not say anything to me, but pointed his finger at me. The police officers arrested me and charged me with battery. I never saw Mr. Phillips before in my life. . . . The case was discharged because he wasn’t there.” He was employed by Legones occasionally on week ends to check identifications at the door. He did not tell the police that George Lardis was the owner of this tavern.

Another witness for plaintiff, George Lardis, testified he was employed by his cousin, Marco Legones, at 4804% North Sheridan Road as a bartender. He was present when Phillips came into the bar, and he was drunk and staggering. Christy refused to serve Phillips, and he left, cursing. Phillips came back 45 minutes later with police officers, and they arrested Jacobs and Christy. Lardis was not arrested.

Considered next is the finding (3) that on April 23, 1966, Robert L. Willnow, a bartender on the licensed premises, sold alcoholic liquor to Anthony Nahguaddy, “a male 19 years.”

Police Officer Robert Rathledge testified that on or about April 20, 1966, he went to the tavern at 4804% North Sheridan Road and observed a male Indian (Anthony Nahguaddy) sitting at the bar, drinking from a bottle of Hamm’s beer. The name of the bartender on duty was Robert Willnow. After some questioning, Nahguaddy produced a draft card bearing his name and “date of birth 1947.” The manager, Mr. Lardis, was present. Nahguaddy said he had been coming into the tavern for at least two weeks, and he had never been questioned as to his age. The officer further testified that initially, Nahguaddy had produced a draft card and a voter’s card with the name of Clarence Ortley, and the date of birth on the cards was 1943. Ortley was present, and the officer arrested the bartender, Ortley and Nahguaddy. Charges which had been placed against the bartender for serving a minor were later dismissed.

Officer Rathledge further testified that on April 23, 1966, and after making the arrest, he checked the license of the tavern and asked Lardis who Marco Legones was, whose name was on the license, and Lardis said “he is a friend of mine . . . and he is out of town.”

Officer Edward Kaliciak testified that at the 20th District police station, Nahguaddy told him in the presence of the bartender that he was born on February 1, 1947, and that he had been coming into the place for a couple of weeks, and nobody asked him for any identification.

Officer Ahlford testified that on April 23, Lardis told him he was the owner of the tavern located at 4804% North Sheridan Road.

Witnesses for the plaintiff included Robert L. Willnow, who testified that on April 23, 1966, he was employed as a bartender at 4804% North Sheridan. Marco Legones hired him. At that time he saw Anthony Nahguaddy on the premises but did not know who he was, and he did not serve him any drinks that night. The police took a bottle of Hamm’s beer that belonged to a girl that was sitting next to Nahguaddy. He said Nahguaddy was not drinking anything. Willnow also testified that he had been found not guilty of serving a minor.

As to finding (3) (April 23, 1966), Marco Legones testified he was not in the tavern when the arrest was made for serving two minors. Lardis testified he checked the identification of Anthony Nahguaddy, and the name on the identification was John Courtly, age 22 or 23. Nothing was served to Nahguaddy. “The police walked in behind him, took him outside for a half an hour, took the bottle of beer from the bar from the girl and said that he was drinking the beer of another customer. . . . It was the girl’s bottle of beer. The officers that made that arrest were Rathledge and Lapthorne. This case was discharged in court.”

Considered last is finding (4) that on May 28, 1966, alcoholic beverages were sold to an intoxicated person, Wayne Titchywy, a patron on the premises.

Officer Rathledge testified that on May 28, 1966, he was in the tavern at about 12:30 in the morning, making an investigation. He saw a man fall off a bar stool. The man was helped up, and the bartender, Christy, gave him another bottle of beer. The officer stated he was six feet away and saw Christy take money from the man. While in the tavern, George Lardis told him “he was going to put a stop to my checking identifications in the place.” The officer then arrested Lardis for interfering with the police and took into custody Titchywy, Christy (the bartender), and Allen Tiger, an incoherent person. All were taken to the 20th District police station, where Titchywy was given a breathalyzer test. The officer stated that during the test Titchywy was asleep and hazy, his speech was slurred and his walk uncertain and wobbly. The officer further stated he had been a police officer for eight years and had arrested 50 to 60 persons for being under the influence of liquor, and in his opinion Titchywy was intoxicated when he arrested him on May 28, 1966. Christy was charged with serving intoxicated persons and Titchywy with disorderly conduct. Under cross-examination the officer stated that he did not hear Titchywy order a bottle of beer.

As to finding (4) (May 28,1966), Roy Christy testified that he knew Titchywy and did not see him asleep at the bar or fall off the bar stool. He did not serve him any beer and did not take any money from him. He was drunk when he came in, and Christy would not serve him. He also said he did not call the police on January 6, 1966, when Phillips was beat up in the tavern, because there was no fight.

Lardis testified that he was on the premises May 28 when Titchywy was there. He was checking identifications and refused Titchywy and Tiger admittance because they had “had enough to drink.” Titchywy was not sitting or sleeping at the bar, and he did not see Christy serve Titchywy anything.

Plaintiff contends that the findings and decision of the Local Liquor Control Commissioner were against the manifest weight of the evidence because “all the competent evidence conclusively established: (1) That the person who allegedly assaulted the patron was not an employee of the licensee, that no such assault took place in or about the licensed premises, that consequently the charge that the licensee failed to protect the patron, failed to render aid and failed to notify the police is without merit. (2) With respect to the charge that the licensee served alcoholic liquor to a minor the facts conclusively establish that the minor presented an identification card showing he was 23 years of age, looked 23 and that on the criminal charge of selling liquor to a minor the bartender was discharged and the minor was fined $50.00 for presenting false identification for the purchase of liquor. (3) On the third charge of selling alcoholic liquor to an intoxicated person, the evidence clearly establishes that the bartender did not serve him any beer and did not take any money from him.”

Plaintiff observes, “The conclusion is inescapable that the Plaintiffs herein were not prosecuted, but were persecuted,” and the findings in the hearing before the Local Liquor Control Commissioner were not supported by substantial evidence, in the light of the whole record, and were against the manifest weight of the evidence.

We find no merit in plaintiff’s contention that the not guilty finding in the criminal proceedings brought against plaintiff’s employees should be given “serious consideration” in the instant license revocation proceedings. “[T]he licensee’s conviction of the crime to which his alleged misconduct related is neither necessary to sustain the order of revocation nor material.” (Weinstein v. Daley, 85 Ill App2d 470, 476, 229 NE2d 357 (1967); Nechi v. Daley, 40 Ill App2d 326, 334.) When a person employs an agent to transact business for him, he is responsible for any act of the agent performed in the course of his duty or within the scope of his employment. Lipscomb v. Coppage, 44 Ill App2d 430, 430p, 197 NE2d 48 (1963).

In sum, in the light of the whole record, we believe the testimony of the police officers presented sufficient substantial evidence to support the findings of the local commissioner. As plaintiff’s employees denied the testimony of the police officers, it reduced the issue to one of credibility of the witnesses. The credibility of the witnesses here was a question for the local commissioner, who saw and heard them testify. It was the province of the commissioner to weigh the probabilities, judge the credibility of the witnesses, and determine whose testimony was more worthy of belief. There must be something more than the mere existence of conflicting testimony to warrant the conclusion that a finding of fact is erroneous. The decision of the commissioner cannot be said to be against the manifest weight of the evidence merely because the commissioner chose to believe the testimony of the police officers and not that of plaintiff’s employees. (Crepps v. Industrial Commission, 402 Ill 606, 615, 85 NE2d 5 (1949).) In order for the decision of an administrative agency to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly evident.

As we cannot say on the record before us that the instant order of revocation was against the manifest weight of the evidence, we will not substitute our judgment for that of the local commissioner. Therefore, for the reasons given, the judgment of the Circuit Court is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


author: MR. JUSTICE MURPHY BURMAN, P. J., dissenting:

text:
    Marco Legones, Plaintiff-Appellant, v. License Appeal Commission of the City of Chicago, A. L. Cronin, Chairman, and Richard J. Daley, Local Liquor Control Commissioner of the City of Chicago, Defendants-Appellees.
    Gen. No. 52,193.
    First District, First Division.
    October 21, 1968.
    BURMAN, P. J., dissenting.

      Wexler & Wexler, and Samuel C. Cohon, of Chicago, for appellant.
    Raymond F. Simon, Corporation Counsel, of Chicago (Marvin E. Aspen and Henry N. JSTovoselsky, Assistant Corporation Counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is an administrative review action in which the Circuit Court affirmed the revocation of plaintiff’s City of Chicago retail liquor license for premises at J/-721 N. Clifton Avenue, Chicago. On appeal, plaintiff contends that the judgment of the trial court is not substantially supported by the evidence or by the law.

The order of revocation for 4721 N. Clifton was entered by the Local Liquor Control Commissioner of the City of Chicago on December 9, 1966, and made the following findings:

1. That on September 3, 1966, during an altercation on the licensed premises, George Semhrong, a patron on the licensed premises, was assaulted by another patron on said premises, one Alma Howe, with a deadly weapon, to-wit: a broken bottle, in violation of the Ordinances of the City of Chicago and the Statutes of the State of Illinois.
2. That the licensee and his agents failed to protect said patron, failed to render aid to said victim and failed to notify the police department of said altercation.
3. That on September 3, 1966, Oliver Montgomery, bartender on the licensed premises obstructed justice by directing one George Semhrong, not to report the above altercation to the police department.
4. That Marco Legones, the licensee of the licensed premises is not a proper person to possess a City of Chicago retail liquor license by reason of the revocation of the liquor license for the premises located at 4804% North Sheridan Road, on November 1,1966.

The License Appeal Commission of the City of Chicago, in sustaining the order of revocation, found that findings (1) and (4) “are supported by substantial evidence in the light of the whole record,” and that findings (2) and (3) were not supported by the record. On February 14, 1967, a judgment order was entered in the Circuit Court, which affirmed the order of the License Appeal Commission. This is the judgment from which plaintiff has appealed.

Plaintiff asserts there is nothing in this record that in any way reflects on the licensee as not being a proper person to possess a City of Chicago retail liquor license. Plaintiff notes the record shows no participation by the licensee or his employees in the altercation set forth in finding (1).

As to finding (4), which was based on the revocation of plaintiff’s retail liquor license for 4804% North Sheridan Road, Chicago, plaintiff contends that the acts there charged were allegedly committed by employees, and the licensee himself in no way participated in any of the acts. Plaintiff argues, “It seems incredible that where a licensee has more than one license at different locations that an act committed by an employee at any other location which might constitute a violation of the law resulting in a revocation should deprive the licensee at one or more other locations of his right to do business at these other locations.”

The litigants here are the same as in a companion appeal (No. 52,192, Legones v. License Appeal Commission of City of Chicago, 100 Ill App2d 394, 241 NE2d 499), in which this Division is filing an opinion simultaneously with the instant opinion. The opinion in No. 52,192 affirms the November 1, 1966, revocation by the local commissioner of plaintiff’s retail liquor license for 4804% North Sheridan Road. There the order of revocation was based on findings (1) that a patron was assaulted by an employee of the licensee; (2) that alcoholic liquor was sold on the premises to a person under the age of 21 years; and (3) alcoholic beverages were sold to an intoxicated person on the premises, all in violation of the ordinances of the City of Chicago and the statutes of the State of Illinois.

Initially we note that when a person employs an agent to transact business for him, he is responsible for any act of the agent performed in the course of his duty or within the scope of his employment. Lipscomb v. Coppage, 44 Ill App2d 430, 430p, 197 NE2d 48 (1963).

The statutory authority for the Local Liquor Commissioner, here the Mayor of Chicago, to revoke a local liquor license, is found in paragraphs 112 and 149 of the Liquor Control Act (Ill Rev Stats 1967, c 43). Paragraph 112, § 3, provides:

“. . . (1) To grant and or suspend for not more than thirty days or revoke for cause all local licenses issued to persons for premises within his jurisdiction; . . . .”

And paragraph 149 provides:

“The local liquor control commissioner may revoke . . . any license issued by him if he determines that the licensee has violated any of the provisions . . . of any valid ordinance . . . enacted by the particular city council . . . .”

What constitutes “cause” for revocation is not set forth or limited by the Act. Illinois authorities have stated that the language of the statute is clear that the local commissioner, in the revocation of a local license, is vested with discretionary power to be exercised reasonably. (Daley v. Kilbourn Club, Inc., 64 Ill App2d 235, 237-238, 211 NE2d 778 (1965); Daley v. License Appeal Commission, 11 Ill App2d 421, 425-426, 138 NE2d 73 (1956).) In Weinstein v. Daly, 85 Ill App2d 470, 229 NE2d 357 (1967), the power of revocation of the local commissioner is considered at length. There it is said (p 481) :

“A license is purely a personal privilege to do what would otherwise be unlawful and hence carries with it no vested property right. . . . The provisions of the Dram Shop Act are to be liberally construed to the end that the health, safety, and welfare of the people of the state shall be protected. . . . The privilege of license, accordingly, must subordinate itself to the reasonable exercise of the discretionary powers of the local governing body.
“. . . The widespread retail sale of alcoholic beverages is a business which is said to be fraught with danger, an enterprise which if allowed to proceed unchecked, would place in imminent peril the public health, safety, and very moral fiber of the community. The rather dramatic provisions of the Dram Shop Act, itself, manifest such legislative concern. The question of revocation of a retail liquor license presents a peculiarly local problem which can be best solved by the respective Local Commissioners who, because of their proximity to and familiarity with the situation, have greater access to information from which an intelligent determination can be made. That determination should not be disturbed in absence of a clear abuse of discretion.”

The foregoing pronouncements in Weinstein apply here. We hold that the findings and revocation of plaintiff’s retail liquor license for 4804% North Sheridan Road, set forth in detail in appeal No. 52,192, Legones v. License Appeal Commission of City of Chicago, 100 Ill App2d 394, 241 NE2d 499, provided ample “cause” for the decision of the local commissioner to revoke plaintiff’s retail liquor license for premises located at 4721 N. Clifton. We find that this revocation was neither arbitrary nor a clear abuse of discretion.

For the reasons given, the judgment of the Circuit Court is affirmed.

Affirmed.

ADESKO, J., concurs.

BURMAN, P. J., dissenting:

Although I concur in affirming the revocation of Marco Legones’ local liquor license for premises located at 4804% North Sheridan Road, I must respectfully dissent from affirming the revocation of a similar liquor license held by the same licensee for premises located at 4721 North Clifton Avenue.

The plaintiff, Marco Legones, urges that there is nothing in the Liquor Control Act (Ill Rev Stats 1967, c 43), which enables the Local Liquor Control Commissioner to revoke a local liquor license upon the basis that a similar license held by a licensee at a different location had been previously revoked.

The record reveals that the order to revoke Legones’ license for the Sheridan Road premises was based on finding (1) that a patron was assaulted by an employee of the licensee; (2) that alcoholic liquor was sold on the premises to a person under 21 years of age; and (3) alcoholic beverages were sold to an intoxicated person on the premises. However, the record also reveals that neither Legones, the licensee, nor any of his Clifton Avenue premises employees were present when any of these violations occurred. If the licensee had personally committed any act in violation of the Liquor Control Act at either of his premises there would be some basis for finding that he was not a person to hold a liquor license and there would be “cause” for the revocation of any similar license held by the licensee.

Assuming arguendo that the licensee had fifty stores and many employees it would be harsh punishment indeed to revoke all of his licenses because of the acts of one of his employees at one establishment at a time when he was not directly or indirectly involved. I do not think the punishment is any less harsh when the licensee has two premises and loses both licenses for misconduct in one. It is sufficient that one of his licenses was revoked because of the misconduct of an employee when he was not present.