author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Milton Prinsen, Defendant-Appellant.
    Gen. No. 52,580.
    First District, Fourth Division.
    August 6, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald P. Katz and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Morton R. Friedman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant was convicted, after a bench trial, of the crimes of robbery and aggravated battery. Judgment was entered and he was sentenced to a term of not less than two nor more than seven years in the Illinois State Penitentiary. Defendant raises two points on appeal: (1) he was not proven guilty beyond a reasonable doubt; and (2) the in-court identification of defendant was tainted by an improper one-man showup.

EVIDENCE

Testimony of Donato Casella, complaining witness:

He is eighty years old but never went to school. He owns a tavern at 2000 West Erie Street. On October 15, 1966, in the afternoon two men came into his tavern; one of them closed the side door. He identified defendant as one of the men who entered the tavern. He made the identification by leaving the witness stand to “see him close, no far.” He had seen defendant in the tavern five or six times before the occurrence. Defendant would come from work and buy quarts of beer to take home.

One of the men asked him to turn on the jukebox. When he did so, one of the men grabbed him and did something to his neck. The other one got him in a headlock and pushed him to the floor and put his foot in his face. The other man hit him in the neck. The defendant went to the cash register. He took about $200 in cash and they took his wristwatch, which was worth about $100.

There are a lot of strong lights in the tavern; it is bright in the tavern because he has a telephone there and the people have to see. The lights were on when the two men came in. The two men stayed about an hour in the tavern. He was unable to describe the clothing of his assailants. It seems that one of them had on a red sweater. The men also took his coat. The men took his pants off. The defendant put a cord around his neck.

James Emerson is not one of the men who robbed him. He did not see Emerson on the day of the robbery. He was tied up without his pants and he managed to move like a sheep with his hands bound in front of him. He moved out the side entrance in an effort to get to his son’s establishment next door. He got outside and then toppled over with blood on his nose and mouth. James Emerson did help him get to his son’s restaurant.

He does not have eyeglasses; he does not need eyeglasses. He has worked thirty-nine years without eyeglasses. He has not seen a doctor about his eyes. Holding a twenty dollar bill some fifteen to eighteen inches from his face the witness said that it had a number ten or a twenty on it; he finally identified it as a twenty dollar bill. During the inspection of the bill he moved it closer and further away from his face, turned it upside down and turned it forward.

He saw defendant about a week before the robbery when the defendant entered the tavern and stole his gun. Defendant brought back another gun, but he wanted his own gun.

After the robbery the police brought a man to the tavern. That man was one of the robbers; it was the defendant.

Testimony of Harold Marsicek, called by the State:

He is a police officer with the City of Chicago and was so employed on October 16, 1966. On that day he was assigned to investigate a robbery at the 2000 Club. In the course of that investigation he saw the victim, Mr. Donato Casella. Mr. Casella’s eyes were discolored; he had contusions about the head and face, and he was discolored down to the middle of his chest and both arms.

Subsequent to the interview with Casella, he arrested the defendant on October 27, 1966. He saw defendant several days before the arrest was effected. On about October 18 he took defendant to the 2000 Club (Casella’s tavern). At that time he had a conversation with Casella. Defendant then said to Casella, “Danny, I’ll straighten it out for the gun.” At that time Casella identified defendant as one of his robbers. Defendant admitted taking Casella’s gun about a week or two prior to the robbery.

Defendant was not placed in custody on October 18 because his accomplice was still at large and the police were continuing their investigation to find the other man.

Testimony of William J. Kelley, called by the Defense:

He is a police officer for the City of Chicago. He has been assigned to the 13th District, which includes the 2000 Club, for six years. He does general patrol duties which include checking taverns. He was in the 2000 Club in the early part of September. He had several occasions to observe the complaining witness pick up money; the complaining witness would have to move the money back and forth to focus on it.

Testimony of James Victor Emerson, called by the Defense :

He faintly knew the defendant although he lived next door. He had seen him walk through the alley “quite a bit.” He has been a patron of Danny Casella’s tavern and visited there two or three times a week. He left work on October 15, 1966, at 3:30 in the afternoon, walked home, arrived there at 3:45 and left for the tavern. As he approached it he noticed two men walking out of the front door. One of the men was between eighteen and twenty years old, with copper hair darker than the defendant’s, about five feet ten inches in height and weighing about 145 pounds. He was wearing dark trousers and a tan sweater. The other man was about five feet nine inches, weighed about 150 to 155 pounds, had black hair and was also about eighteen or twenty years old. He was wearing a black leather jacket and black trousers, and was carrying a jacket over his left arm. If those two men were in the courtroom he would be able to identify them. Defendant is not one of the two men whom he saw leaving the tavern that afternoon.

When he entered the tavern he immediately saw the complaining witness crawling on his hands and knees near the cooler and side entrance; there was a wire wrapped around his neck. The lighting in the Club was very dim; the overhead lights were not on; only the cooler lights, the Drewry signs and the lights on some pictures were on. He helped the complaining witness put his trousers on and then assisted him over to his son’s restaurant. There were quite a few patrons in the restaurant at the time. He told the son what had happened.

On October 15, 1966, he did not have anything to drink from the time he left work.

Testimony of Carey Eutz, called by the Defense:

He lives at 2638 South Pulaski on the third floor; it is a six-room apartment. His father, the defendant, and defendant’s wife reside in the apartment. October 15, 1966, was a Saturday, and he awoke at about 9:00 a. m. Shortly after that defendant awoke. Defendant remained in the house until 1:30 p. m. when he left the house in the company of Walter Eutz (witness’ father). Defendant returned at about 3:30 p. m. still in the company of Walter Rutz. At that time the three of them began to play cards on the kitchen table. He then left the apartment with the defendant to do some shopping at the grocery store across the street. Defendant was in his company throughout the shopping expedition.

After the shopping was completed he and the defendant returned to the apartment and played some more cards; they played for about a half hour and then defendant went to lie down in his bedroom. The witness remained at the kitchen table after defendant retired; the kitchen is about six feet from defendant’s bedroom which is just off the kitchen. At that time there were three people in the apartment; they were the witness, the defendant and the witness’ father.

After the defendant retired to his bedroom, witness’ father went to his bedroom to lie down also. The father’s bedroom is the middle bedroom.

There are two entrances to the apartment; one is the back door in the kitchen and the other is just before you get to the front room. Defendant’s bedroom is closer to the kitchen than the father’s bedroom. Defendant left his bedroom door open. The next time he saw defendant was at 7:00 p. m. when defendant woke up; defendant was going out to pick up his check. Had defendant left his bedroom and used the back door, he would have seen defendant.

Testimony of Walter J. Rutz, called by the Defense:

He is the father of the previous witness. On October 15, 1966, he was living at 2638 South Pulaski in an apartment with his son, the defendant and the defendant’s wife. On that day he arose at 7:00 a. m. His son woke at 9:00 a. m. shortly before the defendant got up. They all remained in the apartment until he and the defendant went out at 1:00 or 1:30 p. m. to watch a football game on the TV in a nearby tavern.

He remained in the tavern with the defendant until 3:30 p. m. at which time they returned to the apartment. Defendant was in his company at all times except for a few minutes when defendant went to the bathroom. It is pretty far from 2638 South Pulaski to 2000 West Erie.

After returning to the apartment at 3:30 p. m. they played cards for awhile. At about 4:30 p. m. defendant went with Carey Rutz to the grocery store. They returned to the house fifteen or twenty minutes later and resumed playing cards for awhile. Defendant then laid down on his bed; and shortly thereafter the witness went to his bed and laid down himself. He had to pass through defendant’s bedroom to get to his bedroom. Defendant’s bedroom door was left open and he was able to see that defendant was in his room.

There are two entrances to the apartment; one in the kitchen and one off the dining room. If defendant had left the apartment by the front door, he would have seen defendant; if defendant had left the bedroom for any reason, he would have seen defendant.

Defendant got up at about 7:00 p. m. and ate a few potatoes.

Testimony of Milton Ronald Prinsen, the defendant:

On October 15,1966, he was living at 2638 South Pulaski with Wally Rutz and his son Carey Rutz. He had been living there for about three weeks and his wife did not live with him; prior to that he had lived in the neighborhood of 2000 West Erie.

On the day in question he was nowhere near 2000 West Erie. He woke up about 9:00 or 9:15 a. m. and found that Wally and Carey Rutz were already awake. He remained in the apartment until 1:00 p. m. when he went to a tavern at 2640 South Pulaski with Wally. They remained in the tavern until about 3:30 p. m., at which time they returned to the apartment. He remained in the apartment for about half an hour playing cards and then he accompanied Carey Rutz to the grocery store. They remained in the store for about twenty minutes and then returned to the apartment where they played cards for another thirty minutes.

After they finished playing cards he went to bed in the first bedroom off of the kitchen. He left the door open. He got up again at about 7:00 p. m. and ate some potatoes that Wally ftutz had fried.

He lived in the neighborhood of the 2000 Club for six to nine months and he knew Mr. Casella from his visits to the tavern. He also knew James Emerson but they were not social friends. He drank with Emerson a couple of times. Some three weeks prior to the robbery he had an altercation with Mr. Casella. He purchased a six pack of beer and laid $1.30 on the bar. Casella told him that it was not enough money and pulled a gun out. Casella then laid the gun down and defendant took it and walked out of the tavern. He eventually gave the gun to a neighbor.

Testimony of Michael A. Casella, called by the State in rebuttal:

He is the son of the complaining witness. At about 5:00 p. m. on October 15,1966, he saw his father outside of his restaurant. His father was on his two feet with a cord around his neck and with his shoes and pants off. There was nobody helping him. He saw Emerson a few minutes after he brought his father into his restaurant. When he went out the front door he saw Emerson standing by the side of the tavern door about 75 feet away; Emerson did not come into the restaurant. He had a conversation with Emerson. Emerson said to him, “I saw a couple of kids, I saw them going down Damen Avenue.”

He has observed many people drinking. Based upon his experience operating a tavern, he believes that Emerson was inebriated. When he encountered Emerson, Emerson’s eyes were bulging out of his head, his voice was mumbling and fumbling and he was not walking straight.

His attention at the time he first saw his father was focused only on his father.

Testimony of William O’Connor, called by the State in rebuttal:

He is a police officer of the City of Chicago and he was assigned to investigate the Casella robbery. On October 18, 1966, he spoke to Walter Rutz at the Pulaski Road apartment. The defendant was present. Defendant told him that it was defendant’s apartment, that he lived there with his wife and that he was with Walter Rutz on the day of the robbery.

Walter Rutz told him that on the day of the robbery defendant and he left the apartment at about 7:30 in the morning to go down to a tavern where they drank beer until about 1:30 p. m. Rutz said that they went back upstairs and that he (Rutz) went to bed and that defendant left the apartment. Rutz said that the next time he saw the defendant was at 7:30 p. m. Rutz never mentioned that his son was in the apartment.

Testimony of Harold Marsicek, called by the State in rebuttal:

He is the same Harold Marsicek who testified earlier. Walter Rutz told him that on October 15, 1966, his estranged wife was there for the weekend; he never mentioned his son. He was asked who was present and replied that he, his estranged wife and defendant were there.

OPINION

Defendant first argues that he was not proven guilty beyond a reasonable doubt. He contends that reversal on these grounds is required because the identification by the State’s only eyewitness was vague, doubtful and uncertain, that the only other person who saw the robbers, James Emerson, stated positively that defendant was not one of them, and that he has presented a corroborated account of his activities for the entire day of the robbery. The State responds that the testimony of Emerson is questionable because he may have been inebriated at the time and because his testimony conflicts with that of Michael Casella, the son of the complaining witness. The State also contends that it has effectively rebutted the alibi evidence with testimony of police officers who interviewed one of the alibi witnesses and were given a statement at that time that conflicts with the story told at trial. The State was further able to show that the complaining witness knew the defendant; but the testimony of a police officer called by the defense and the results of an in-court eye test establish that the complaining witness had bad eyesight. The State also developed the fact of some considerable animosity between complaining witness and defendant.

Reviewing the entire record we cannot say that defendant was proven guilty beyond a reasonable doubt. The complaining witness’ identification of defendant is not convincing. It is clear from the record that the complaining witness had bad eyesight; and although he well could have identified an individual that he knew, his identification of defendant is directly contradicted by James Emerson. While the complaining witness was only able to say that defendant was one of the assailants, he was unable to give a description of the other man nor was he able to describe the clothing worn by either. Emerson, on the other hand, gave physical descriptions of both men he saw fleeing the tavern and described their clothing. He even testified that one of the men was carrying a coat over his arm which could have been the coat stolen from the complaining witness. There was some testimony that Emerson was inebriated at the time; but that testimony was given by the son of the complaining witness who admittedly was not paying very much attention to anyone but his father. Further there was no testimony from the police officers who interviewed Emerson immediately after the robbery that he was drunk. Emerson is corroborated in an important part of his testimony by the complaining witness who testified that Emerson “help me to my son, take me into the restaurant.” This evidence raises grave doubts as to the validity of the complaining witness’ identification.

Further, defendant presented an alibi which was corroborated by the consistent testimony of two witnesses. The State presented evidence that one of the alibi witnesses told a different and conflicting story to police officers when he was interviewed three days after the robbery. However, there is no rebuttal of the testimony of Carey Rutz’ testimony; and this is persuasive because it was Carey Rutz who claimed to have been with the defendant at the time that the robbery was being committed. Finally, we note that the police failed to arrest defendant after a face-to-face identification by the complaining witness. The refusal to arrest indicates that either the police doubted the sufficiency of the identification or that there actually was corroboration of defendant’s alibi. We cannot accept the explanation of the release of defendant as a means to the capture of his alleged accomplice.

Given the unconvincing nature of the identification when set off against the alibi evidence, the judgment of the trial court must be reversed. Since we hold that defendant was not proven guilty beyond a reasonable doubt, it is not necessary for us to consider the contention that defendant was subjected to an improper one-man showup.

Reversed.

ENGLISH and McNAMARA, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE ENGLISH

license: Public Domain

text:
    Lee Shapiro, Plaintiff, Counterdefendant-Appellee, v. Irving Shapiro, Defendant, Counterplaintiff-Appellant.
    Gen. Nos. 52,797, 52,826. (Consolidated.)
    First District, Fourth Division.
    August 6, 1969.

      Jerome Berkson, of Chicago, for appellant.
    Rinella and Rinella, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

These appeals were taken by defendant from orders which were entered to enforce the support provisions of a separate maintenance decree. A recitation of the earlier proceedings is necessary to an understanding of the issues now before us.

On September 22, 1966, after a trial by jury, the court entered a decree for separate maintenance which ordered defendant to pay plaintiff permanent support of $750 per month, retroactive to January 11, 1962, amounting to $13,251.70. The decree also found that real estate located at 3168 and 3170 W. Monroe, Chicago, was held jointly by plaintiff and defendant, and should be sold, with the proceeds to be divided equally between the parties after payment of certain expenses. The court expressly retained jurisdiction to enter such further orders as equity might require. Defendant sought review of this judgment in appeal No. 51,903.

Plaintiff then filed a petition on November 9, 1966, for the issuance of a rule on defendant to show cause why he should not be held in contempt for failure to make the payments required by the separate maintenance decree. Plaintiff also asked for attorneys’ fees and costs.

A hearing on December 30, 1966, resulted in the entry by the court of three orders: (1) defendant was ordered to pay plaintiff $10,000 for attorneys’ fees and other costs in defense of appeal No. 51,903; (2) judgment was entered against defendant in the amount of $14,776.70 covering defendant’s default in support payments to plaintiff through October 22, 1966, with execution to issue; and (3) a rule was issued against defendant to show cause why he should not be held in contempt for failure to pay the $14,776.70. The rule was made returnable January 31, 1967. Defendant’s motions to vacate these orders were denied on February 9, 1967, and the hearing on the rule to show cause was continued. Defendant also sought review of these orders in appeal No. 52,198.

The two appeals (Nos. 51,903 and 52,198) were consolidated by order of another division of this court and were later dismissed on November 13, 1967, on the plaintiff’s motion. Defendant’s motion to vacate the dismissal was denied on November 28, 1967. Defendant then filed a petition for leave to appeal in the Illinois Supreme Court, but the petition was denied on March 27, 1968 (39 Ill2d; No. 41,141). On October 14, 1968, certiorari was denied by the United States Supreme Court. 37 USLW 3134 (US Oct 15,1968).

The consolidated appeal now before this court arises from two subsequent orders of the trial court. On October 18,1967, the first of the two orders was entered when the court, acting on its own motion (after being advised that the building at 3170 W. Monroe, which the separate maintenance decree had ordered to be sold, had been destroyed by fire), directed that the net insurance proceeds, amounting to $13,641.04, after expenses and various other deductions, be divided equally between plaintiff and defendant as joint tenants. The $6,820.52 to be awarded defendant, however, was applied to the $14,776.-70 arrearage found due in the December 30, 1966 judgment order. Defendant, therefore, was given a credit of $6,820.52, leaving a balance in arrears due plaintiff of $7,956.18. Further, defendant was ordered to resume support payments to plaintiff of $750 per month, as required by the decree for separate maintenance, and was directed to pay “a substantial sum” on the $7,956.18 arrearage by November 21,1967. Also, plaintiff was directed to file a statement of receipts and disbursements in connection with her operation of the premises at 3170 W. Monroe. The hearing on the rule to show cause was again continued. From this order defendant appealed, and that appeal is now before us as cause No. 52,826.

On January 8, 1968, the court conducted a hearing on the return of the rule to show cause. At its conclusion, the court ordered defendant committed, in contempt, to the County Jail for six months or until payment of the $7,956.18 arrearage. Defendant’s appeal from this order as cause No. 52,797 is also now before us, consolidated with No. 52,826.

Defendant contends that the trial court was without jurisdiction to adjudicate the property rights of the parties in the separate maintenance action. Separate maintenance is a remedy in equity, created by statute, whereby one spouse who, without fault, lives apart from the other, may receive reasonable support and maintenance while living apart. Ill Rev Stats (1967), c 68, § 22 et seq. The process, practice, and proceedings in actions to obtain separate maintenance are the same as those in divorce actions (Ill Rev Stats (1967), c 40, § 1 et seq.). Ill Rev Stats (1967), c 68, § 23.2. Thus, unless otherwise specifically provided, separate maintenance actions are governed by the same principles as are other civil cases. Ill Rev Stats (1967), c 40, § 7.

This court must decide this jurisdictional question raised by defendant in spite of the fact that the original consolidated appeals (Nos. 51,903 and 52,198) were dismissed. While res judicata will apply to all decisions that have been properly disposed of on appeal, jurisdictional issues persist and may be raised at any time. As stated in Forsberg v. Harris, 27 Ill App2d 159, at pages 171-172, 169 NE2d 388:

“One of the essentials of a valid judgment is that the court have jurisdiction to render that particular judgment. . . .” [quoting from Armstrong v. Obucino, 300 Ill 140]. Nor does the fact that the court has found that it has jurisdiction add anything to its authority, since where the court has exceeded its power to act in the particular cause before it, its finding that it had the power so to act adds nothing to its authority since such finding itself is devoid of authority.

We are concerned in the instant case with the court’s jurisdiction to order (as it did in the decree for separate maintenance), that certain property, found to be owned jointly by plaintiff and defendant, be sold, and the proceeds divided equally between them.

Generally, courts have no power to adjudicate property rights in a separate maintenance action. E. g., Olmsted v. Olmsted, 332 Ill App 454, 75 NE2d 774. The separate maintenance statute does not authorize the court to adjudicate property rights, and, further, the courts have, as a general rule, held that in separate maintenance proceedings this power does not exist independent of the statute. Loss v. Loss, 80 Ill App2d 376, 385, 224 NE2d 271. However, adjudication of property rights in separate maintenance actions has been held valid in certain situations. In Glennon v. Glennon, 299 Ill App 13, 19 NE2d 412, the court said that it would liberally construe the provisions of the Civil Practice Act to permit a property adjudication in a suit for separate maintenance. This decision was impliedly overruled in Petta v. Petta, 321 Ill App 512, 53 NE2d 324. In that case no pleadings had asked for such a determination but the court stated that if the parties had submitted their property rights for determination, a different question would have been presented.

There have been other situations in which property adjudications have been upheld. Where both parties asked for adjudication of property rights and introduced evidence in regard thereto, the court was held to have acted within its power in adjudicating these rights. Decker v. Decker, 279 Ill 300, 116 NE 688. Also, since a wife has the right to her separate property and may not be precluded from asserting this right in an appropriate action, it has been held that she might properly join an action at law for her property as a separate count in a separate maintenance suit. Boker v. Boker, 17 Ill App2d 260, 149 NE2d 774.

In the instant case, after plaintiff filed her suit for separate maintenance, defendant filed a counterclaim for divorce. When the court entered the separate maintenance decree in favor of plaintiff, it found that defendant had failed to prove his case for divorce. However, in asking the court to grant him a divorce decree, defendant had specifically submitted his property rights to the court for determination.

In Ribergaard v. Ribergaard, 349 Ill App 99, 110 NE2d 89, there was a complaint for separate maintenance alleging joint tenancy of certain real estate, and asking that the rights of the parties be adjudicated. Defendant’s answer did not affirmatively request a property determination, but conceded the joint tenancy of record, and claimed that the property had been owned by him prior to the marriage. The court construed this response in the following manner at page 106:

In the present case the defendant not only introduced evidence in regard to the rights of the parties to the property, but asked for it in his answer. It is our conclusion that the court properly adjudicated the rights of the parties, ....

Plaintiff in the present case had originally filed the complaint for separate maintenance without mention of property adjudication. However, while the amended and supplemental counterclaim for divorce was pending, she submitted to all inquiries required to determine rights in the disputed property, without objection to the court’s jurisdiction.

Furthermore, the defendant, on September 22, 1966, filed a document entitled, “Objections to Proposed Decree for Separate Maintenance” in part 11(c) of which he recognized that the property rights issues had been joined and submitted to the court. Fairly construed, this document constitutes an objection by defendant to the court’s findings but not to its jurisdiction. Plaintiff filed an answer to defendant’s objections, in which she, too, recognized the court’s jurisdiction to determine her property rights. Thus, in effect, both parties conceded that they had submitted their property rights to the court.

In Boyd v. Boyd, 58 Ill App2d 1, 11, 12, 207 NE2d 350, the court decided a similar question in the same manner. There, the original complaint by plaintiff was for divorce, and prayed for a property rights determination. Defendant’s counterclaim for separate maintenance prayed that an equitable award be made of the property of the parties. The court dismissed the divorce action, decreed separate maintenance, and determined the parties’ property rights. It reasoned that since the plaintiff had submitted the issue of determination of property rights to the court in the divorce action and had joined this issue with defendant, he could not then be heard to attack the jurisdiction of the court. In the instant case, too, when consideration is given to all of the acts of the parties throughout the litigation, there was a joining of the issue sufficient to sustain the court’s jurisdiction.

Defendant also contends that upon the filing of his notice of appeal from the decree of separate maintenance, the jurisdiction of the Appellate Court attached, and the trial court lost jurisdiction to enforce its decree. Defendant claims that, as a result, the orders emanating from the rule to show cause are void. Once again, though the original appeal from the decree was dismissed, the claim of a jurisdictional defect requires answer on this appeal.

Defendant’s contention is based on the general rule that once an appeal has been duly perfected to this court, the trial court is divested of further jurisdiction of the cause. Arndt v. Arndt, 331 Ill App 85, 93, 72 NE2d 718 (revd on other grounds, 399 Ill 490, 78 NE2d 272). Thus, the trial court is restrained from entering any order which would change or modify the judgment or its scope, and from entering any order which would have the effect of interfering with the review of the judgment. Lind v. Spannuth, 8 Ill App2d 442, 453, 131 NE2d 796 (Judge Feinberg specially concurring). See Holmes v. Kammerman, 10 Ill App2d 450, 457, 135 NE2d 162. The trial court, however, retains jurisdiction to hear and determine matters arising independent of, and collateral to, the proceeding which resulted in the judgment on appeal. Arndt v. Arndt, supra. See, generally, Karasik, “Jurisdiction of Trial Court after Notice of Appeal,” 53 IBJ 30. The trial court, in the case before us, had the jurisdiction to enter the post-decree orders of December 30, 1966, and October 18, 1967, as it had expressly retained jurisdiction to enforce the decree as equity might require, and the orders in question did not affect the substantive issues on appeal, nor in any way alter the nature of the appeal. (See Ill Rev Stats (1965), c 40, §§ 16 and 19 and c 22, § 42.) The proceeding on rule to show cause was properly designed to enforce the decree, which the court had full authority to do in the absence of supersedeas. If defendant had sought and obtained an order making the appeal a supersedeas, the situation would have been otherwise, but this he did not do.

Looking past the question of the court’s jurisdiction to enter the two orders here appealed from, we must bear in mind that the issues litigated in the original consolidated appeal (Nos. 51,903 and 52,198) — particularly those decided by the decree of separate maintenance — cannot now be collaterally attacked in this action.

We shall consider first the order of October 18, 1967, in which the court, on its own motion, declared that the fire loss insurance proceeds from the property located at 3170 W. Monroe should be divided equally between the parties, with defendant’s share to be retained by plaintiff and applied to the arrearage in defendant’s maintenance payments under the decree. Defendant contends, on several grounds, that the court abused its discretion in ordering this distribution.

Defendant objects to this insurance-proceeds distribution because plaintiff had not requested such relief in her complaint or other pleading. On December 30, 1966, the court had reduced to judgment defendant’s arrearage in maintenance payments in the amount of $14,776.70 and directed that execution issue therefor. Since defendant’s appeal from this order was dismissed, the judgment, as well as the decree on which it was based, is unimpeachable in the instant proceedings. Under the standing unexecuted decree of separate maintenance, the authority of section 42 of the Chancery Act is brought to bear. Ill Rev Stats (1965), c 22, § 42. That section provides that a court may enforce its decrees by sequestration of either real or personal property and delivery of such property to the creditor-litigant, by body attachment, fine, imprisonment, and, in general, “by the exercise of such powers as pertain to courts of chancery, and which may be necessary for the attainment of justice.” With this broad power of enforcement available as its tool, the court had both parties before it in a civil contempt proceeding, the purpose of which was to compel defendant to pay the amount due unless he could establish his inability to pay. Certain funds were to issue from sale of the building at 3170 W. Monroe, but, since this had become impossible because of a fire, the insurance proceeds were substituted. The remaining property at 3168 W. Monroe and the land at 3170 W. Monroe were still intact and subject to be sold pursuant to the decree. With the outstanding order and the insurance proceeds brought before it, then, the trial court, under its general enforcement power, could and did, on its own motion, properly distribute the entire amount to plaintiff, crediting defendant with half.

Nor is this relief invalidated, as argued by defendant, because plaintiff failed to submit a full accounting of rents received from her prior management of the destroyed property. The hearings on the distribution of the insurance proceeds began on September 25, 1967. Plaintiff testified that, after the decree, she had collected rents on the property at 3168 W. Monroe, and the court directed that on the following day she be prepared to make an accounting of all that she had received and spent in regard to that property. On September 26, she testified that she could remember neither the number of tenants she had at 3170 W. Monroe nor the income she had received from that building during the period from the date of the decree (September 22, 1966) to the date of the fire (November 28, 1966). The court admonished, “I told you yesterday to be ready to answer these questions,” to which she replied that she thought the court had referred to 3168 W. Monroe. As to the latter property, however, she stated that she had received income from September 22, 1966, to the date of the hearing, but she could not remember what it was, although the bookkeeper had records which she could get. The court ordered that she file a sworn statement within ten days showing how much post-decree income she had collected from both properties and what she had done with it. The next hearing was held on October 10, 1967, at 11:00 a. m. The plaintiff arrived without the sworn statement which had been ordered, so the court recessed the hearing until 2:00 p. m., with direction to prepare the sworn statement and return. Plaintiff subscribed to two affidavits on that day, one stating the rental income (without itemization) and disbursements in connection with both buildings in question, and the other stating her receipts and disbursements as to the insurance proceeds received from the destruction of the building at 3170 W. Monroe. Both affidavits were filed on October 11, and the hearing was continued until October 17, 1967. At that hearing, plaintiff appeared with records of expenditures, bills, and checks for the subject properties, and she was subjected to extensive examination and cross-examination. She stated that she did not have accurate records of rentals received or tenants in the properties, and the court, by order entered October 18, again directed her to file a verified statement of all receipts and expenditures, apparently not being satisfied with the unitemized accounting for rentals. There is no evidence in the record that plaintiff ever satisfactorily complied with this order. Therefore, we remand this portion of the case to the trial court for the narrow purpose of requiring plaintiff to comply fully with the accounting which she had been ordered to render as to both properties. If the trial court should find that a net profit had been derived from the properties, then one-half thereof would be credited to defendant’s outstanding arrearage as computed by the court in the orders now on appeal. If the amount of the credit should exceed the arrearage, then, of course, defendant would not be in contempt, and the balance should be paid to defendant or credited against additional arrearages, if any, which the court might then determine to exist.

Finally, defendant claims that the court erroneously entered both the order of October 18, 1967 (requiring him to pay an arrearage of $7,956.18) and the order of January 8, 1968 (committing defendant to jail in contempt), because both orders failed to give appropriate weight to defendant’s evidence relating to his inability to pay. Since the appeals from the separate maintenance decree and from the order of December 30, 1966, were both dismissed, this court cannot now consider modification of the amounts due under those orders, both of which can serve as the basis for subsequent enforcement proceedings. The order of October 18, 1967, was entered after a hearing on September 25,1967, conducted for the purpose of determining defendant’s financial status and ability to make a substantial payment on account of his support delinquency. We believe that defendant, on this occasion, was given adequate opportunity to present evidence to meet the burden of proof which, under these circumstances, rested on him. Viewed somewhat differently, this order did not alter defendant’s support obligation; rather, it merely made a current reckoning of his account. The original decree had ordered him to pay this money, and this directive remained fully effective at the time of the October 18 order. The primary effect of that order was the allocation of the insurance funds and the application of defendant’s share thereof to his arrearage. The part of the order which directed him to make a substantial payment on the arrears added nothing to his monetary obligation.

Defendant also argues that the hearing on January 8, 1968, should have dealt solely with his ability, at that date, to pay the sums due, and not his ability to pay at any prior time, such as the date of the separate maintenance decree. He cites Barton v. Barton, 323 Ill App 357, 55 NE2d 542, which we do not consider in point, since it relates to the fixing of fees and expenses a year after entry of a decree for separate maintenance. In the present case, the court heard evidence of defendant’s financial condition at numerous hearings preceding the separate maintenance decree on September 22, 1966, the order of December 30,1966, the order of October 18,1967, and the contempt order of January 8, 1968. The testimony of defendant at all of these hearings, so far as we can detect, did not disclose any deterioration in his financial condition. Defendant’s testimony at the hearing on January 8, 1968, covers 48 pages of record. Although the order to be enforced dated as far back as September, 1966, the evidence on which the court based its final order of January 8, 1968, related to the entire intervening period.

A contempt proceeding for nonpayment of alimony or support deals with the defendant’s ability to pay a fixed legal obligation over the period in question. It is not concerned with the plaintiff’s ability to contribute to her own support. Shaffner v. Shaffner, 212 Ill 492, 72 NE 447; Barclay v. Barclay, 184 Ill 471, 56 NE 821; Hengen v. Hengen, 271 Ill 278, 111 NE 121; Shuff v. Fulte, 344 Ill App 157, 100 NE2d 502; White v. Adolph, 305 Ill App 76, 26 NE2d 993. The power of the court to enforce its decree by imprisonment for contempt, is limited to willful and contumacious refusal to obey its order. “It is not a contempt of court to fail to pay money which one neither has nor can obtain and which he has not causelessly either put out of his hands or failed to receive.” White v. Adolph, supra, page 79; Shuff v. Fulte, supra. The failure of a defendant to make alimony or support payments pursuant to a decree is prima facie evidence of contempt. It then becomes incumbent upon the defendant to establish, to the satisfaction of the court, that his failure was due entirely to his inability to pay. Shaffner v. Shaffner, supra; Hengen v. Hengen, supra; Deen v. Bloomer, 191 Ill 416, 61 NE 131 (reversing Bloomer v. Deen, 93 Ill App 479); Boyden v. Boyden, 162 Ill App 77.

Defendant introduced evidence on January 8, 1968, which he considered was proof of his inability to pay, and relied substantially on the partial monthly payments which he had made for the previous six months. He asserted that full payment had not been intentionally withheld, but that he did not have the necessary money or assets to keep current. Through vigorous cross-examination, however, it was disclosed that defendant had been dealing with large sums of money which plaintiff claimed she had shown were available for her support, and which defendant claimed were necessary for his own support and for the continuation of his business. There was thus involved a discrepancy in the testimony which is essentially a matter for the trial court. We do not believe the chancellor abused his discretion in deciding that defendant’s failure to pay was willful and contumacious.

The order of October 18, 1967 (Appeal No. 52,826) is affirmed.

The order of January 8, 1968 (Appeal No. 52,797) is vacated and the cause remanded for the sole purpose of redetermining the payment required of defendant in order to purge himself of the contempt. To that end, the plaintiff should be required to file under oath a full and detailed accounting of her management of the real properties at 3168 and 3170 W. Monroe Street covering the period from the date of the decree (September 22, 1966) to the date of the contempt order (January 8, 1968). Thereupon, the court shall conduct such further proceedings and enter such other orders as may not be inconsistent with the views expressed in this opinion.

Affirmed in part, remanded in part, with directions.

McCORMICK, P. J. and DRUCKER, J., concur.


author: ME. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jessie L. Barfield, Defendant-Appellant.
    Gen. No. 52,910.
    First District, Fourth Division.
    August 6, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James D. Hennings, Shelvin Singer, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Meehan, Assistant State’s Attorneys, of counsel), for appellee.
   ME. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Jessie L. Barfield, was charged with the crime of forcible rape. After a bench trial, he was found guilty and sentenced to the penitentiary for a term of three to six years. On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt.

At trial, complainant testified that on Saturday, October 8, 1966, she came home from work about 7:00 p. m. She lived at 2145 Lake Street, Chicago. Her husband was in Peoria, Illinois, on a trip. She started cooking, and gave her 5-year-old son a bath. She was fully dressed, as she was planning to go to a musicale that evening. She heard a knock and her son answered the door. Two men, Jessie and Joe, were talking to her son. Jessie is the defendant. She didn’t know either of them, but had seen them before. They asked whether her husband was at home, and she told them that he was not. Joe said that they would leave, and both started toward the door. As Joe went outside, defendant closed and locked the door, and ordered complainant to strip off her clothes. Joe knocked, but defendant refused to open the door. He took a knife out of his pocket and, in the presence of her son, again told her to strip. She refused and he threatened to kill her. He pushed both of them into her bedroom and told them to get on the bed. She said that she could not do that in front of her son. Defendant then put the knife on her son, who got on top of the bed and lay down. She closed the door and defendant forced her into her other two sons’ bedroom. She had previously taken off her dress and slip, so she was just in her girdle, garter belt and stockings. After forcing her into the other bedroom, he had intercourse with her. Her son, Roger, had come home while they were having intercourse. The phone rang, and Roger answered it. She reached her hand out of the door and Roger handed the phone to her. A friend of her husband’s was on the phone, but she could not say anything, and defendant forced her to hang up. He told her to take her garter belt off, they changed ends of the bed and had intercourse again. He asked if she had any money, and she gave him the 6 dollars she had in her purse after he stated that he would leave. While she was naked, defendant grabbed her hand, and told the children he was going to take her away. He then pulled her from the fourteenth floor to the ninth floor. At this time she was wearing a sleeveless duster which had been on a chair near the door, and which had been thrown to her by the defendant. The duster had no buttons, and she was not wearing shoes. On the ninth floor he made her lay down and put his mouth next to her vagina. As some people came near, he put a knife to her stomach and told her not to scream. She identified the knife in court. They went out of the building, down a few streets and through an alley. When she complained of rocks on the street, defendant took his shoes off and let her use them. He had one hand around her and the knife at her side. He took her into the rear of a three-story building, and up to a bedroom on the third floor. He told her to take off her duster and lie down on a filthy bed, and had intercourse with her again. She stated that she had to go home, but he told her to relax and go to sleep. Defendant told her that he was going to get her children, and that the five of them would go to another city together. All in all, he had three acts of intercourse with her in her apartment and three in the other apartment. He also put his mouth against her vagina twice. She did not consent to any of the acts. After he fell soundly asleep, she put on her duster and his pants, put the knife in the pants pocket and returned to her babysitter’s apartment, located in the same building in which she lived. She identified his pants in court. She told her babysitter what happened, and the police were called. She led Officer Foster to the apartment where defendant had taken her. There she identified defendant. She was examined at County Hospital.

On cross-examination, she testified that her husband was visiting his brother in Newport, Illinois. Defendant had been around the building for about a year. Her son, Roger, was 12 years old at the time of the incident. It was a distance of four blocks to defendant’s apartment and they passed quite a few people, but the defendant wouldn’t let her say anything. On her way back, she saw two plainclothes policemen sitting in a car. She told them that she had been raped, and they offered her a dime to call the police. She told the Grand Jury that the plainclothes detectives were standing while she talked to them.

Complainant’s son, Roger, testified that he was 13 years old and in the eighth grade at the time of trial. He knew the defendant prior to the occurrence. On that day, he was on the thirteenth floor porch until he came up to the apartment with his brother at about 8:30 p. m. They were sitting in the living room listening to the radio when the phone rang. He called his mother, but got no answer. He looked in her room and saw his little brother sleeping, went toward his own room and called his mother again, at which time she stuck her hand out of the door and he handed her the phone. He then returned to the living room, and listened to the radio some more. Later defendant came out with his mother, who didn’t have any clothes on. He had a knife in her side. Defendant reached in the closet, threw her a gown and dragged her out of the apartment. His mother didn’t have any shoes on, her hair was messed up and she was crying. After she left, he and his brother were scared, and they went back and sat down.

On cross-examination, Roger testified that he was 12 years old at the time of the incident. He and his brother returned to the apartment after 9:00 p. m. that night. After he gave the phone to his mother he went back to listen to the radio. He did not hang the phone up. After his mother left, they sat on the couch all night until she got back at 6:00 a. m. the next morning. He did not call the police because he was too scared.

Officer Arthur Foster of the Chicago Police Department, testified that he went to 2145 Lake Street at 11:55 p. m., and had a conversation with complainant. She was extremely nervous and excited. She was barefooted, dressed in a pair of men’s pants and an old jumper. She gave him a knife, which he identified in court. She led the officers to an apartment, and pointed defendant out. They awakened him and placed him under arrest.

It was stipulated that defendant was 18 years old. It was further stipulated that stain of human sperm were found around the fly area of the pants which had been previously admitted into evidence.

Defendant, Jessie Barfield, testified that on October 8, 1966, about 8:00 p. m., he and a man named Joe went to complainant’s apartment. Complainant let them into the apartment. Her little son was there, but was sleeping. They went into the living room, sat down on the couch and were offered a drink. After about 30 minutes, Joe left. The complainant’s older son came in, so defendant left. He walked down to the 12th floor, the highest floor to which the elevator ran. As he was waiting for an elevator the complainant came down. He said he was going to a friend’s house, so they both walked over to the apartment. The friend was not there, but the door was unlocked. They both got undressed, but he could not have intercourse because he was too high. He fell asleep and the next thing he knew the police were awakening him.

On cross-examination, he testified that complainant called him into the bedroom of her apartment and asked him if he would take his clothes off but he refused. The phone rang and she answered it, dressed only in a slip.

Defendant contends that he was not proved guilty beyond a reasonable doubt, arguing that the evidence presented by the State was improbable and unlikely, and that the State did not prove that the acts were forcible and against the will of the complainant.

The credibility of the witnesses and sufficiency of the evidence are matters within the province of the trier of fact, and his determination will only be disturbed if the necessary degree of proof is lacking. People v. Hansen, 28 Ill2d 322, 192 NE2d 359 (1963). However, the testimony of a witness may contain its own impeachment and may be so improbable as to be disregarded. People v. Booher, 73 Ill App2d 226, 218 NE2d 779 (1966); People v. Vail, 74 Ill App2d 308, 221 NE2d 165 (1966); People v. Pennington, 75 Ill App2d 62, 220 NE2d 879 (1966).

In People v. Faulisi, 25 Ill2d 457, 185 NE2d 211 (1962), the court, at page 461, stated:

“Reviewing courts are especially charged with the duty of carefully examining the evidence in rape cases, (citations omitted) and it is the duty of the reviewing court not only to consider the evidence carefully but to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant’s guilt . . . .”

Upon the careful scrutiny required by a court of review of the State’s evidence, we find that it was not sufficient to sustain defendant’s conviction.

Complainant testified that the defendant arrived at her apartment about 8:30 p. m. and that she returned to an apartment in her building about 11:00 p. m. During that 2% hour period, she testified that defendant had committed 6 acts of forcible intercourse on her, along with two acts of cunnilingus. After the first three acts which occurred in her apartment, she testified that at knifepoint she was dragged down 14 flights of stairs in her building, interrupted on the 9th floor for an act of cunnilingus in the hallway. They then proceeded to walk at least four blocks, each of them barefooted for part of that walk. They then walked up three flights of stairs to the second apartment. There, three more acts of forcible intercourse were committed; and after defendant had fallen sound asleep, she returned, barefooted, to an apartment in her building. Only on cross-examination did she mention that she stopped once to inform two policemen that she had been raped. We find that such testimony, both as to the number of sexual acts committed with a resisting woman and as to the amount of physical activity, all occurring within such a brief period of time, was highly improbable and contrary to human experience. Her testimony was so improbable as to raise substantial doubt as to its veracity.

In addition to the improbable evidence, there was also much testimony presented by the State which was so unlikely as to cast doubt on defendant’s guilt. The complainant’s five-year-old son was forced into a bedroom and threatened with a knife. Yet he went to sleep while his mother was being raped in the next room. Two other sons, aged 9 and 12 years, returned home while their mother was being raped, but heard no sounds and listened to the radio. After the 12-year-old boy answered the telephone, he called his mother, received no answer, looked into her bedroom and saw his brother sleeping. As he approached his bedroom his mother stuck her arm out of the door and took the phone. Whether he returned immediately to his seat or waited for his mother to return the phone to him, we are certain that he neither saw nor heard the defendant. The oldest boy subsequently saw his mother dragged out of the apartment at knifepoint by defendant, a man whom he had known, yet he did not call the police or make any outcry, although his mother did not return until 6:00 a. m. the following day. Later in the second apartment, after forcibly raping complainant six times, defendant discussed with her their leaving the city together with her three children. Then he fell soundly asleep, and so remained until the police awoke him. We believe such a recital of facts to have been extremely unlikely, and in some instances, incredible. It was so unlikely as to make defendant’s guilt subject to reasonable doubt.

Moreover, in order to prove the charge of forcible rape it must be proved that the act was committed by force against the will of the female. People v. Faulisi, 25 Ill2d 457, 185 NE2d 211 (1962); People v. DeFrates, 33 Ill2d 190, 210 NE2d 467 (1965).

There is no evidence of any resistance or struggle on the part of complainant. While force may prevent outcry by a rape victim, complainant’s own testimony was that they walked for four blocks on a Saturday evening in a crowded neighborhood and passed many people. During this walk, defendant took off his shoes to give them to her. Even then, complainant made no outcry or attempt to escape.

Defendant also points out several instances of inconsistency in the evidence presented by the State. In the view we take of the case it is unnecessary to discuss them.

We are not satisfied that defendant was proved guilty beyond a reasonable doubt. A conviction can be sustained only on credible evidence which removes all reasonable doubt of defendant’s guilt, and it is the insufficiency of the State’s evidence which creates such doubt. People v. Coulson, 13 Ill2d 290, 149 NE2d 96 (1958).

The judgment of the Circuit Court is reversed.

Judgment reversed.

DRUCKER, P. J. and ENGLISH, J., concur.


text:
    Povilas Petrulionis, Plaintiff-Appellant, v. Eva Dudek, et al., Defendants-Appellees.
    Gen. No. 53,351.
    First District, Fourth Division.
    August 6, 1969.
    Charles P. Kal and Tage Joranson, of Chicago, for appellant.
    Miller and Ribstein, of Chicago (Eugene Lieberman, of counsel), for appellees.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff brought an action in the Circuit Court for the setting off of a homestead estate to himself, for the partition of certain real estate, and for the allowance of reasonable attorneys’ fees. The court found that plaintiff was the owner of an undivided one-half interest in the realty; that he was a tenant in common with defendants who were owners of the other undivided one-half interest; that plaintiff was not entitled to homestead against his cotenants; and that plaintiff was required to account to defendants for profits. A decree was rendered consistent with those findings. Plaintiff appeals from that decree.

The facts are not in dispute and are recited in a stipulation of the parties as follows:

That on November 15, 1962, by virtue of quitclaim deed dated November 15, 1962, and recorded December 7, 1962, plaintiff’s wife and her son and daughter, Daniel Rumbutis and Eva Dudek, became the owners as joint tenants of an undivided one-half interest, and plaintiff and his wife became the owners as joint tenants of an undivided one-half interest, in the real estate described in the complaint; that at all times in said stipulation mentioned, said real estate has been and is now improved with a residence; that on November 15, 1962, and continuously thereafter, plaintiff and his wife as a family until her death on July 4, 1966, and plaintiff thereafter alone, occupied all of said real estate as a homestead, said real estate being the only real estate owned in common by plaintiff and said son and daughter of his wife; that plaintiff owns one-half, and said son and daughter, as joint tenants, own the other half of said real estate, subject to plaintiff’s homestead and costs of suit; that plaintiff’s said homestead has never been terminated.
It is agreed and stipulated by and between the parties that this stipulation shall not, in any manner, construe the rights of the parties hereto with respect to the homestead exemptions, but is solely for the purpose of stipulating the facts as to the residence and ownership and homestead of the plaintiff.

The issue in the instant case is whether a party is entitled to homestead rights against his cotenant by virtue of the homestead exemption in Ill Rev Stats, c 52. Until its amendment in 1965, section 1 of that Act was silent as to application of its rights as between cotenants. That amendment states specifically that the Act “is not applicable as between joint tenants or tenants in common but it is applicable to any creditors of such persons.” The plaintiff filed his complaint after the effective date of this amendment and seeks to avoid its operation against himself with the argument that he had a vested property right in his homestead at the time of the amendment which cannot be abrogated by the legislature. Defendants made a twofold response to this argument. First they argue that the amendment merely codified preexisting case law which held that homestead rights did not exist between cotenants. Secondly, they argue that since homestead rights were created by the legislature in the first instance, these rights may be removed or amended by the legislature.

In Hertz v. Buchmann, 177 Ill 553, 53 NE 67, the court stated:

It is claimed, however, by the plaintiff in error that, even after the death of her husband, Francis Hertz, her homestead right attached to the undivided one-half of the premises owned by the defendants in error. It has been held, that there can be a homestead in an undivided interest in land, or in other words, that an estate in cotenancy will support a right of homestead in one of the co-tenants. But this doctrine is never enforced to the prejudice of the just rights of the co-tenants. The exclusive possession of one co-tenant, claiming homestead, is rightful as against the claims of the creditors, but cannot be set up as against the demand of the other co-tenant to be let into joint possession. A co-tenant claiming a homestead right, not having an exclusive right as against the other co-tenant, can be compelled by the latter to make partition.

See Grigsby, Illinois Real Property, Vol 1 (1948 ed), c 5, § 105. Thus the 1965 amendment was only a codification of existing case law and by its terms barred the plaintiff’s claim of homestead.

Defendants also point out that the legislature could change the homestead exemption at will. They rely on Mooney v. Moriarty, 36 Ill App 175, wherein the court held:

It is urged that the plaintiff in error had a right to a homestead of the value of $1,500 at the date this allotment or assignment was made, and that a homestead of but $1,000 was set off to him. We are not able to appreciate the force of this objection. The act of 1873 repealed the former act of 1872 giving a $1,500 homestead and reduced it to $1,000. The judgment was not taken against Mooney until in 1878 and the sale made in 1885. This claim of a $1,500 exemption is placed on the ground that Mooney occupied this lot as a homestead in 1872, when the $1,500 homestead exemption was in force, and that from that time and by virtue of that statute, he had a vested right of homestead which the subsequent act of 1873 could not take from him. There is no vested right growing out of a public law conferring favors or benefits upon the citizens when no element of contract or grant arises out of a statute. All such laws may be changed or repealed at any time according to the will of the State. Dobbins v. First Nat. Bank, 112 Ill 566; Cooley Const Lim Sec 479.

Plaintiff contends, however, that this decision relates only to the amount of homestead and not to the vested right. We cannot agree with this interpretation and therefore conclude that plaintiff’s claim of a vested right in homestead was properly rejected by the trial court.

We find no error in the order for an accounting since this procedure is in compliance with Ill Rev Stats 1965, c 76, § 5.

The judgment of the trial court is affirmed.

Affirmed.

McNAMARA and STAMOS, JJ., concur.

       C 52, Ill Rev Stats, is entitled, “EXEMPTIONS.” After the subheading “HOMESTEAD” the following appears:
      AN ACT to exempt the homestead from forced sale, and to provide for setting off the same, and to exempt certain personal property from attachment and sale on execution, and from distress for rent.
      With the amendments of 1965, Section 1 thereof reads:
      Every householder having a family, shall be entitled to an estate of homestead, to the extent in value of $5,000, in the farm or lot of land and buildings thereon, owned or rightly possessed, by lease or otherwise, and occupied by him or her as a residence; and such homestead, and all rights and title therein, shall be exempt from attachment, judgment, levy or execution, sale for the payment of his debts, or other purposes, and from the laws of conveyance, descent and devise, except as hereinafter provided, or as provided in Section 234 of the Probate Act, as heretofore or hereafter amended. This Section is not applicable as between joint tenants or tenants in common but it is applicable as to any creditors of such persons.

       “When one or more joint tenants, tenants in common or co-partners in real estate, or any interest therein, shall take and use the profits or benefits thereof, in greater proportion than his or their interest, such person or persons, his or their executors and administrators, shall account therefor to his or their cotenants jointly or severally.”


author: MR. JUSTICE BURMAN

text:
    Edward Frake, Plaintiff-Appellant, v. Paschen Contractors, Inc., a Corporation, and Peoples Gas Light & Coke Company, a Corporation, Defendants-Appellees. Paschen Contractors, Inc., a Corporation, and Peoples Gas Light & Coke Company, a Corporation, Third-Party Plaintiffs-Appellants, v. Phillips-Getschow Company, a Corporation, Third-Party Defendant-Appellee.
    Gen. Nos. 52,354 and 52,498.
    First District, First Division.
    August 12, 1969.
    Rehearing denied September 2, 1969.

      Everett W. Hertline, Leo M. Tarpey, and Harry I. Parsons, of Chicago (Robert Jay, Nye and Nye, of counsel), for appellants.
    William P. Nolan, Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appellees.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal from a judgment entered in favor of the defendants, Paschen Contractors, Inc., and Peoples Gas Light and Coke Company, notwithstanding the verdict of the jury for plaintiff, Edward Frake, and from the order granting the motion of the defendants for a new trial conditionally to become effective in the event the judgment notwithstanding the verdict be reversed, set aside or vacated.

Plaintiff brought this action to recover damages for injuries he sustained while employed by a subcontractor of defendant Paschen Contractors, who in turn was the general contractor for defendant Peoples Gas. A complaint was filed consisting of three counts. The first count was predicated upon an alleged wilful violation of the Structural Work Act (Ill Rev Stats 1967, c 48, §§ 60-69). Counts two and three of the complaint charged the defendants with negligence. The latter two counts were subsequently withdrawn on motion of the plaintiff and the cause was submitted to the jury on Count I only. The jury rendered a verdict in favor of plaintiff and against the defendants in the sum of $22,500. Judgment was entered on the verdict. A post-trial motion was filed on behalf of both defendants, and the judgment notwithstanding the verdict was entered subsequent thereto in conjunction with the order granting a new trial conditionally as to both defendants.

We first review the issue of whether the trial court erred in entering a judgment in favor of the defendants, notwithstanding the verdict. A motion for a judgment notwithstanding the verdict under section 68.1(2) of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 68.1(2)) raises the same question of law and has the same effect as a motion for a directed verdict. The power of the court is the same. Judgments notwithstanding the verdict, therefore, ought to be entered by the trial court in those cases in which all of the evidence, viewed in the aspects most favorable to the party against whom the motion is directed, so overwhelmingly favors the movant that no contrary verdict based on the evidence could stand. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 859.

We review the evidence to the extent necessary for the disposition of this issue. Plaintiff, a 61-year-old pipe-fitter, was employed by Phillips-Getschow Company, a subcontractor engaged pursuant to a contract between the Peoples Gas Light & Coke Company and Paschen Contractors, Inc., the general contractor. On December 1, 1959, plaintiff, Albert Nocon (a welder) and Charles Harvey, their foreman, were performing the work which their subcontractor-employer had engaged to perform under the Northwest Highway. Plaintiff and the welder were standing at the bottom of a thirty-five or forty-foot deep manhole which was approximately six or seven feet in diameter. A two-foot diameter metal pipe had been previously lowered by crane into the manhole, and the two workmen had reached the bottom by climbing down a steel ladder anchored to the concrete wall. The pipes were twenty feet long and it was necessary to weld two pieces together to obtain the proper length. Paschen Contractors furnished a crane which was used to lower the pipe into the manhole.

Plaintiff and the welder proceeded to attach one of the pipes to a gas main underneath the Northwest Highway. After one and one-half hours, they completed their job. They then signalled their foreman, who was directing them from the street level, that the pipe was intact and in place.

Plaintiff and his coemployee Albert Nocon, the welder, were the only people to testify as to what occurred thereafter. Plaintiff testified as follows:

... I was looking up and he [the foreman] climbed up on to that manhole to unhook this clevis [a shackle clevis bolt weighing two or three pounds] ... I gave the signal and I started ... to pick my tools up. . . . [A] 11 of a sudden I heard something coming down, so I raised my arm and that’s the last I remember.

Albert Nocon testified that he heard someone at ground level shouting “watch out.” The next moment, the witness testified, he heard something “bouncing in the hole and I see him [the plaintiff] laying on the floor on the ground.” Nocon also testified that he saw the clevis bolt on the ground next to the plaintiff.

The plaintiff contends that he has a cause of action against both defendants under the Structural Work Act (Ill Rev Stats 1967, c 48, §§ 60-69) citing Gundich v. Emerson-Comstock Co., 21 Ill2d 117, 171 NE2d 60; Oldham v. Kubinsky, 37 Ill App2d 65, 185 NE2d 270; Kennerly v. Shell Oil Co., 13 Ill2d 431, 150 NE2d 134; and Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785. In Gundich injuries were sustained when one of seven steel beams being lifted by an overhead crane operated by the defendant’s employee fell off and knocked the ironworker-plaintiff into a hole. The load was lifted and lowered three or four times in response to signals from one of the ironworkers. This was necessary because the load was off balance each time. On the fourth lift the load was about one or two feet off the ground when a member of the crew saw that the load was still not centered. One of the crew signaled that the load be lowered. The operator of the crane, however, continued to lift it and veered the load to the west. It was at this point that the accident occurred. The Illinois Supreme Court found that:

There was evidence from which the jury could find that Brown [the crane operator employed by the defendant] knew or certainly should have known of both the inadequacy of the signals and the likelihood of loose beams falling from the crane. Similarly, defendant Emerson-Comstock Co. knew that a crane was being used by its employee, and it cannot escape the duty imposed by the statute by ‘closing its eyes’ to the way in which the crane was being operated and to the system of signals used by its employee.

Gundich v. Emerson-Comstock Co., 21 Ill2d 117, 129, 130 NE2d 60, 67.

In Oldham v. Kubinsky, 37 Ill App2d 65, 185 NE2d 270, the plaintiff was injured while a hoist was being used as a scaffold or working hoist and the plaintiff was working thereon. The defendant’s employee testified that the plaintiff got in the bucket of the hoist; that he took the plaintiff up 10 or 11 feet; and that he had raised the plaintiff or another man in the bucket on other occasions. The Appellate Court of the Second Judicial District held that the verdict of not guilty as to the defendant’s employee did not absolve the defendant from liability when the defendant knows or should know of the improper condition of a device within the terms of the act, or the improper manner in which it is being operated by its employee.

In Kennerly v. Shell Oil Co., 13 Ill2d 431, 150 NE2d 134, the plaintiff was welding a water line when he fell from a scaffold. The Supreme Court affirmed a judgment for the plaintiff against the owner of the premises stating that:

. . . the proof shows that the floor of the scaffold from which the plaintiff fell was made of loose boards and that it had no handrail. Defendant knew that scaffolds were being used, and it can not escape the mandatory duty that the statute imposes by closing its eyes to their condition.

Kennerly v. Shell Oil Co., 13 Ill2d 431, 439, 150 NE2d 134, 139.

The final authority cited by plaintiff in support of his contention is Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785. There plaintiff was injured when the ladder being used by him began to slip. The ladder was not nailed to the scaffold although according to the testimony of the bricklayers it should have been under the custom of the trade. There was no railing on the scaffold and s when the ladder began to slip the plaintiff grabbed the ladder and fell on top of it face down on the concrete floor of the building. The Illinois Supreme Court reversed an Appellate Court judgment for the defendant and remanded the case for a new trial.

In the case at bar, we believe that when all of the evidence is viewed in the aspects most favorable to the plaintiff, it does not warrant the application of the Structural Work Act. It is undisputed that there were no defects in the crane in the instant case, whereas defects played a significant part in the Oldham, Kennerly and Gannon cases. It is further undisputed that there were no operating improprieties unlike the case of Gundich v. Emerson-Comstock Company. The evidence clearly shows that plaintiff’s injuries were not caused by the operation nor by any defective condition of the crane.

The only possible ground upon which to impose liability on the defendants in the instant case arises from the fact that part of the defendant’s crane, the clevis bolt, struck the plaintiff and caused him injury. Had the foreman negligently dropped one of his own tools down the manhole instead of the defendant’s clevis bolt there would be no doubt that the plaintiff would not have a cause of action under the Structural Work Act. A careful reading of plaintiff’s authorities does not dissuade us from treating the incident in question the same way we would treat the above hypothetical. Thus, we conclude that the case at bar is clearly distinguishable from the cases plaintiff cites and we hold that the plaintiff does not have a cause of action under the Structural Work Act.

Several other issues are raised by the parties to this proceeding, but in view of our determination above, it is unnecessary for us to consider them.

For the foregoing reasons we are compelled to sustain the judgment notwithstanding the verdict of the trial court in favor of defendants Paschen Contractors and Peoples Gas Light & Coke Company.

Judgment affirmed.

ADESKO, P. J. and MURPHY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Duncan, Otherwise Called James Bunk, Defendant-Appellant.
    Gen. No. 53,020.
    First District, First Division.
    August 12, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Saul H. Brauner, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, and Robert Kelty, Special Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, James Duncan, was charged with the crime of unlawful sale of a narcotic drug in violation of section 22-3 of the Criminal Code (Ill Rev Stats 1967, c 38, § 22-3). After a jury trial, he was found guilty and was sentenced to a term of not less than twelve years nor more than eighteen years in the penitentiary.

The defendant alleges, on appeal, that his conviction rests solely on the uncorroborated testimony of a narcotics addict and that, therefore, he was not proven guilty beyond a reasonable doubt.

The record reveals that on June 28, 1966, the defendant was arrested for his alleged participation in the illegal sale of heroin to A1 Nichols, who had been a Chicago Police Department informer for three years. Mr. Nichols testified that on June 28, 1966, he went to Police Headquarters at 11th and State where he met Detectives Nance and Williams and informed them that he could buy narcotics from a man he knew as “Bunky.” After being stripped and searched, Nichols was given $17, two fives and seven ones, which were inventoried and marked.

The informer and the two above-mentioned officers then drove to the vicinity of Roosevelt Road and Damen Avenue and parked there. Nichols left the police and went to the southwest corner of the intersection. There he met the defendant and told him that he wanted to buy some narcotics. Nichols said that he knew the defendant because on two previous occasions he had purchased drugs from him in the defendant’s apartment.

Nichols further testified that the defendant told him to come upstairs with him to his apartment. When the defendant and the informer arrived at the defendant’s apartment, there were four or five other people there. The only other one Nichols knew was Sammie Lee. Nichols gave the Seventeen Dollars to the defendant, who in turn gave it to Sammie Lee. The narcotics were not ready, but when they were Sammie Lee told Duncan, the defendant, to “turn him.” After Duncan gave Nichols a tinfoil package, the informer returned to the police car and gave the package to Detective Nance.

A1 Nichols admitted that he had been a drug addict for the past 15 years and that he was still addicted to drugs. He also stated that he was convicted of a felony in 1953 and one in 1957, for which he was sent to the penitentiary.

Detective Nance testified that on June 28, 1966, he and his partner took Nichols to the corner of Damen Avenue and Roosevelt Road. There the officer observed the informer conversing with another male Negro. Nance said that from where he parked he was able to observe the stranger’s height, his dark complexion and his thin build. The officer also said the stranger was wearing a blue shirt and a light cap. After about a minute the informer and his companion disappeared behind a liquor store at 1208 South Damen Avenue. Twenty minutes later, according to Detective Nance, Nichols returned to the unmarked squad car and gave him a small tinfoil packet which contained a white substance.

Immediately after having a conversation with the informer, Detective Nance and his partner, who were in plain clothes, went to the defendant’s apartment at 1208 South Damen Avenue. After the two police officers were admitted into the apartment, they identified themselves, and lined the six or seven male Negroes in the room up against a wall. Nance testified he then asked if there was a person in the room by the name of Bunk or Bunky. The defendant answered. Detective Nance said that when the defendant stepped forward he recognized him as the man who was talking to Nichols a short time before at the corner of Damen and Roosevelt.

After placing defendant Duncan under arrest, the two officers proceeded to search all the people in the apartment. A search of the defendant did not recover anything, but when Sammie Lee Gray was searched the police found the prerecorded bills they had given to Nichols.

Shirley Krause, a chemist for the Chicago Police Crime Detection Laboratory, testified that she performed the routine examination on the substance in the tinfoil packet given to Detective Nance, and in her opinion, the substance was heroin diacetyl morphine hydrochloride.

The defendant maintains that the conviction in the case at bar rests solely on the testimony of a narcotics addict who is a police informer. Moreover, the defendant argues, the testimony of the addict-informer was not corroborated and that, therefore, following the rulings in People v. Bazemore, 25 Ill2d 74, 182 NE2d 649; People v. Minor, 70 Ill App2d 464, 217 NE2d 316; and People v. Watkins, 68 Ill App2d 389, 216 NE2d 494, the defendant was not found guilty beyond a reasonable doubt.

In all three cases cited by the defendant the convictions were reversed because there was no corroboration of the informer’s testimony. This is made patently clear in Bazemore when the Illinois Supreme Court stated:

This is not a case where the informer’s accusation receives corroboration from close police surveillance of the transaction, from an immediate arrest, or from the finding of marked money on the accused, but one which developed in such a way that the informer was at liberty to name almost any person he wished to select as the guilty one. 25 Ill2d 74, 77, 182 NE2d 649, 651 (emphasis added).

In the case before us, however, we find that there is sufficient corroboration of the informer’s testimony. Although the police did not witness the transaction in question, Officer Nance did testify that he recognized the defendant Duncan as the man Nichols met on the corner of Damen and Roosevelt Road. Defendant Duncan also answered to the nickname of “Bunky” verifying the informer’s testimony on that point. Most importantly, though the police did not recover the inventoried money from the defendant, they did find it on the person of Sammie Lee Gray in the defendant’s apartment when the defendant and Gray were arrested. This fact lends credence to Nichol’s story that Duncan had been given the money and had turned it over to Gray. Lastly, the police found and arrested the defendant immediately after being directed to his apartment by the informer. Because of these corroborating circumstances we cannot consider any of the defendant’s cases as dis-positive of the issue before us.

While it is true that habitual users of narcotics often become notorious liars and the chronic morphinomanic is often a confirmed liar, People v. Crump, 5 Ill2d 251, 125 NE2d 615, the fact that a witness is a narcotics addict bears only upon his credibility. It does not follow that his testimony must necessarily be disbelieved, especially when it is corroborated by other witnesses. People v. Carter, 69 Ill App2d 448, 217 NE2d 413. Here the circumstances support the informer’s story.

The jury saw the informer, heard his testimony and found it credible. This court will not substitute its judgment on the matter of credibility of witnesses and the weight to be given their testimony where the trier of fact saw and heard their testimony, unless we can say that the proof was so unsatisfactory as to justify reasonable doubt as to the defendant’s guilt. People v. Romero, 54 Ill App2d 184, 203 NE2d 635. We conclude that the testimony of the informer is corroborated by evidence and the surrounding circumstances in the record and that the testimony was sufficient to establish the guilt of the defendant beyond a reasonable doubt.

Accordingly, the judgment and conviction of the defendant is affirmed.

Affirmed.

ADESKO, P. J. and MURPHY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Rudy Faz, Sr., Defendant-Appellant.
    Gen. No. 53,045. (Abstract of Decision.)
    First District, First Division.
    August 12, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, and Kenneth L. Giles, Special Assistant State’s Attorney, of counsel) for appellee.
   Opinion by JUSTICE BURMAN. Not to be published in full.


author: MILLS, J.,

text:
    John H. Ryan, Plaintiff-Appellant, v. Robeson’s, Inc., a Corporation, Defendant-Appellee.
    Gen. No. 11,051.
    Fourth District.
    September 3, 1969.
    Rehearing denied October 27, 1969.

      Mort A. Segall, of Champaign, for appellant.
    Thomas, Mulliken & Mamer, of Champaign (Roger E. Haughey, of counsel), for appellee.
   MILLS, J.,

delivered the opinion of the court.

Is this a products liability case, or one involving damages for injuries as the result of alleged negligence? Respective counsel for parties litigant completely disagree on the issue presented on review. We must necessarily look to the evidentiary background. The trial resulted in a hung jury, and the trial judge granted post-trial motion for judgment in favor of the defendant-appellee.

On December 2, 1964, appellant went to defendant’s department store to make a purchase, and entered the building at the west entrance. The single inner door was hinged on the left as one faced it, was aluminum framed, totally glass paneled, had a rectangular shaped handle on the right-hand side, and swung toward the person entering the establishment. As he approached this inner door, appellant saw through the glass that a lady carrying a parcel in her hand was coming out; so he stepped to the right of the door, grasped the door handle with his right hand, and intended to commence the opening of the door in a laudable and gallant social gesture. But the lady was apparently moving with “bargain day” zeal and pushed the crossbar on her side of the door in such manner as to fling the door open with greater force than anticipated. Appellant’s fingers were caught between the door handle and the door itself from his position on the right, and as the door was hinged to swing to the left, the resulting arc twisted and injured the first three fingers of his right hand.

Appellant testified that he had no packages in his hands, that he used his right hand to open the door because he is right-handed, that he was not jostled or pushed, that he had used this type of door before and was familiar with its operation, that this was his customary way of approaching the door so that it would not hit him in the face, that he had traded at appellee’s store five or six times prior to the occurrence, and that he had used this specific type of door before. The handle was a single aluminum plate bolted by connecting aluminum shafts to the right-hand frame of the door, in such a way as to leave approximately inches of space between the plate and the frame. Appellant testified that he placed his hand on this door handle with the middle finger and ring finger resting on the upper support attaching the plate to the frame, and the index finger lipped over the top of the plate.

An officer of the glass company which sold and installed the door testified that his company had sold about 100 sets of the exact handle in the general community where defendant was located, and that the manufacturer of this handle began producing the product in 1958 or 1959. The architect for appellee said that there were other types of handles made by the same manufacturer, including one that had a curvature of metal toward the inside of the door rail allowing no space between the door frame at its junction with the handle. The door handle involved here was selected primarily on the basis of design from an esthetic point of view. And as to functional design, the architect said there is no real standard in the door manufacturing industry.

An expert witness, a professor of mechanical engineering with a specialty in safety engineering, testified that he had made an examination and inspection of the door, that it was in good condition, that he found no defects and nothing out of order, and that it was reasonably safe for the purpose for which it was intended.

The general manager of appellee testified that the average traffic count in the store for 1966 was over 1 million persons per year, although that would be somewhat high for 1964. He further stated that only 10 percent of the traffic used the west entranceway in question. He inspected the door immediately after it was hung, and the door was operating properly. When routine inspections were thereafter made, the door continued to operate properly. It is interesting to note that the method for door-testing was “by opening and closing it.” This criterion would appear to have some basis in fundamental logic.

Is this a products liability situation? Clearly, it is not. The most recent enunciation of decisional law in this arena is Williams v. Brown Mfg. Co., _ Ill2d _, _ NE2d _ (1969), opinion filed May 28, 1969. In its comprehensive analysis of case law on strict liability, the court concisely declares:

“There must be a defect in the product, it must be established as existing at the time of leaving defendant’s control, and it must be such as renders the product unreasonably dangerous to the consumer.”

This appeal does not assert the customary and usual context for a products liability consideration, i. e., a sale of the product to a buyer-consumer. But assuming, arguendo, that this distinction is not fatal to an application here of strict liability standards, we find not one jot of proof that the door handle was imperfect. The element of defect — the cardinal root from which all other tests of strict liability derive — is totally absent.

So, having determined that this is in fact an action for the recovery of damages for injuries suffered as a result of alleged negligence by the appellee in failing to maintain its business premises in a reasonably safe condition, what are the tests? They are simply this: An owner of a business establishment invites persons to come upon his premises to do business; once they do, the law creates a duty for the owner to make his establishment and premises safe by the use of ordinary and reasonable care. The general rule in applying this principle is that the use of an appliance or fixture in a business establishment may be continued, and no negligence will be imputed, where that appliance or fixture is not obviously dangerous and has been shown to be safe and adequate for its purpose by use over an extended period of time. As to notice, the store owner need not have it in actuality — he is charged with constructive notice of a defect which either would have been discovered through the exercise of reasonable inspection, or which might have been so discovered thereby. Indeed, such reasonable inspection is inherently a duty under the standard of ordinary and reasonable care. These are the obligations imposed by law upon a business, and we are unaware of adverse decisions. Todd v. S. S. Kresge Co., 303 Ill App 89, 24 NE2d 899; Placher v. Streepy, 19 Ill App2d 183, 153 NE2d 369.

Furthermore, the reported decisions demonstrate that the courts have been entombed by an avalanche of litigation involving injuries received by patrons on business premises. As opined in Robinson v. Southwestern Bell Tel. Co., 26 Ill App2d 139, 167 NE2d 793, 794: “No liability is created by the mere occurrence, there must be some evidence of causation by a breach of duty of the defendant. That duty is to exercise ordinary care to keep its premises reasonably safe for the use of business invitees, and does not make a defendant an insurer of the safety of an invitee while on defendant’s premises.”

When appellant’s evidence is measured by the yardstick here applicable, we fail to perceive even a scintilla of proof required by appellant’s burden. An accident happened. This was proved. But more, much more, is needed to hold a store owner liable. No expert testimony was offered by appellant to even suggest a defect in the door handle, either by way of design or construction. On the other hand, appellee’s architect and safety engineer gave proof that the handle was properly designed and constructed to make it safe for its intended purpose. The installer of the handle and the door showed that approximately 100 sets of the same handle had been installed in the immediate vicinity by his company alone, and upon inspection he found this particular door and handle in proper working condition. An officer of appellee inspected the door immediately after installation, and thereafter continued to routinely check it, each time finding it in proper functional use. Indeed, some 400,000 persons used the same door and handle for nearly four years without reported incident.

Appellant’s brief argues that the handle “can plainly be seen” and that it “speaks for itself.” We are in accord, but reach opposite conclusions. Certainly, if the handle was so defective as to be plainly seen, then appellant was obligated to observe the obvious, heed the cry of caution and proceed with care. By his own contention, he apparently was blind to that which he says he should have seen, turned a deaf ear to the warning that he should have heard, and then advanced without prudence. He further argues that this handle as constructed and designed constituted “a dangerous trap.” We differ. “He did what was normally anticipated one would do as one would approach a door. He then stood to one side of the door away from the direction in which the door would swing as it would open towards him, for the reason that he would not be hit in the face with the door as it opened. . . . There is nothing unforeseeable about this act. In fact, if plaintiff would have done anything else under the circumstances, it would have been abnormal conduct.” Again, we vary.

How does one open a door? We doubt that it requires either a law degree or judicial experience to reach such an answer. If a door is hinged on the left, has a handle on the right-hand side of the frame, and swings to the left, we think it manifestly obvious that one approaching the door grasps the handle with the left hand, pulling it toward him and steps to the right to enter the enclosure. Whether he is left-handed or right-handed strikes us as totally immaterial. Furthermore, when one is opening a glass door through which he has unobstructed vision of others approaching the same fixture, he should be even more confident of his ability to open such a door with his left hand in the normal manner. Appellant here had both of his hands free, had used the door on prior occasions, was familiar with its operation, looked through the glass, saw a woman walking rapidly toward the door with a package in her hand and determined to extend a gesture of chivalrous assistance. Commendable. But then he chose to step to the right of a door that swings to the left, reached across, placed his right-hand fingers in an awkward position on the handle designed for left-hand usage, and by misjudging the speed of the woman patron and the force of her propulsion, was rewarded only by a painful experience.

We hold that the trial court properly entered post-trial judgment in favor of appellee, and that no verdict for appellant could ever stand on the evidence herein, pursuant to the test established in Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504.

Affirmed.

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