author: CRAVEN, J.,

text:
    Board of Education of Springfield School District No. 186, Sangamon County, Illinois, Plaintiff-Appellant, v. Thomas Scott, Wilson Park, John Akin, Elwin Johnson, William Kessler, Ralph Lederbrand and C. R. Dobson, Individually and as Members of the Board of Education of Rochester Community Unit School District No. 3A, Sangamon County, Illinois, Rochester Community Unit School District No. 3A, Sangamon County, Illinois, County Board of School Trustees, and Department of Public Instruction, State of Illinois, Defendants-Appellees. Board of Education of Springfield School District No. 186, Sangamon County, Illinois, Plaintiff-Appellant, v. Glen Alexander, Ralph Jacobs, Max M. Summers, William D. Clark, Madison Post, Claude E. Bramlet and James R. Funderburk, Individually and as Members of the Board of Education of Chatham Community Unit School District No. 5, Sangamon County, Illinois, Ball-Chatham Community Unit School District No. 5, Sangamon County, Illinois, Sangamon County Board of School Trustees, and Department of Public Instruction, State of Illinois, Defendants-Appellees. Board of Education of Springfield School District No. 186, Sangamon County, Illinois, Plaintiff-Appellant, v. William D. Clark, Claude E. Bramlet, Jr., James Funderburk, Glen Alexander, Max Summers, Ralph Jacobs and Robert K. Fiersten, Individually and as Members of the Board of Education of Ball-Chatham Community Unit School District No. 5, Sangamon County, Illinois, Ball-Chatham Community Unit School District No. 5, Sangamon County, Illinois, Sangamon County Board of School Trustees and Department of Public Instruction, State of Illinois, Defendants-Appellees.
    Gen. Nos. 11,013,11,014,11,015. (Consolidated for Opinion.)
    Fourth District.
    January 23, 1969.
    Rehearing denied and opinion Gen. No. 11,014 modified March 7, 1969.
    Rehearing denied in Gen. No. 11,015 March 7, 1969.

      Richard R. Grummon and Richard H. Putting, of Springfield, for appellant.
    Raymond L. Terrell, State’s Attorney of Sangamon County, of Springfield (Stanley Thomas, of counsel), Ensel, Jones & Blanchard, of Springfield (George K. Blanchard and John G. Hayes, of counsel), for appellees.
    As Modified on Denial of Petition for Rehearing in General No. 11,014.
   CRAVEN, J.,

delivered the opinion of the court.

These are three separate appeals from orders entered by the Circuit Court of Sangamon County in three separate administrative-review proceedings. In each case the circuit court affirmed an order of the Sangamon County Board of School Trustees entered in proceedings before that board for disconnection of certain parcels of land from Springfield School District (District No. 186, Sangamon County), plaintiff-appellant in each case. We have on our own motion, for purposes of decision and opinion only, combined these three appeals, inasmuch as the issue in each case is substantially the same.

In each of the three proceedings for disconnection, the board of school trustees ordered detachment from District No. 186 and that each respective parcel of land involved revert to the school district in which it formerly was located.

Each case involves a small parcel of land in Sangamon County annexed to the city of Springfield upon petition of its owner. Prior to annexation these parcels were in certain school districts. Under the statute then in effect (Ill Rev Stats 1965, c 122, § 7-2.1), the annexation of such parcels to the city of Springfield made the annexed parcel a part of School District No. 186 (Springfield), subject to detachment, as District No. 186 is a special charter district. In each case the school district, of which each parcel had been a part prior to annexation, filed a petition for review praying that said tract be disconnected from the Springfield district, alleging that the annexation to the Springfield district was not “for the best interests of the schools of the area and the educational welfare of the pupils therein.”

Testimony and evidence on each petition was heard by the State Superintendent of Public Instruction. The record and report of this hearing was transmitted to the Sangamon County Board of School Trustees and to Springfield School District No. 186. In each case the Springfield School District denied the petition for detachment and the Sangamon County Board of School Trustees approved the petition. Thereafter, in each case, the Springfield School District sought administrative review in the Circuit Court of Sangamon County to review the order of the county board of school trustees. The circuit court affirmed the order of the county board of school trustees and denied post-trial motions by plaintiff.

Springfield School District No. 186 appealed directly to the Supreme Court, contending that section 7-2.1 of the Illinois School Code was unconstitutional; that the petitions were legally insufficient; that there was no evidence or that the evidence was insufficient to sustain the orders of the county board of school trustees; that incompetent, immaterial and irrelevant testimony was improperly admitted; and that the findings and orders of the county board of school trustees were against the manifest weight of the evidence and were outside the scope of the statute.

The Supreme Court determined that there was no fairly debatable constitutional question as to the constitutionality of section 7-2.1 of the School Code and transferred the cases to this court. This was predicated upon Schreiber v. County Board of School Trustees, 31 Ill2d 121, 198 NE2d 848 (1964), and Board of Education of Spaulding School Dist. No. 58 v. Special Charter School Dist. No. 61, 32 Ill2d 342, 205 NE2d 459 (1965), which held this section constitutional as against the same contentions here made.

An analysis of the background of the enactment of section 7-2.1 (passed in 1961) discloses that prior to its enactment when territory was annexed to a city lying within a special charter school district, that territory automatically became annexed to the charter school district, regardless of the effect upon the outlying district. Section 7-2.1 was enacted to permit the outlying district to object to the annexation to the special charter district and the disconnection from its district. The standard set by the statute is whether the proposed change of school district boundaries is for the best interests of the schools of the area and the educational welfare of the pupils.

The statute in question provided that upon petition by the school board or school trustees having jurisdiction over the property or territory either before or after annexation or disconnection, filed with the Superintendent of Public Instruction and certified copies with the board of education of the special charter district and the county board of school trustees of the county in which the county superintendent has supervision over the greatest portion of the territory of the district or districts affected, a hearing officer should conduct a hearing. The evidence produced at the hearing then is to be considered by both boards and an order entered by each. Should either or both boards find that the public interest and public welfare of the districts and persons involved indicate need or desirability therefor, the boards, or either of them, shall enter an order setting aside the annexation or disconnection with respect to all or any part of the territory. In the event that both boards determine from the evidence that the annexation or disconnection should be prevented in whole or in part, or delayed for a stated period, such boards should so order, in which event the annexation or disconnection takes effect thirty days after entry of the order unless appealed or set aside or suspended. The decisions of the boards are deemed “administrative decisions” within the meaning of the Administrative Review Act (Ill Rev Stats 1965, c 110, par 264).

On administrative review the test of the administrative decision is whether it is against the manifest weight of the evidence. Here the trial court determined in each of the three cases that the order of the county board of school trustees setting aside the annexation to the Springfield special charter district and the disconnection from the outlying district of which the territory formerly was a part, was not against the manifest weight of the evidence and affirmed the order.

It is not our proper function to reweigh the evidence presented at the hearings before the administrative bodies but to determine whether the findings of the circuit court are correct or in error. However, when an administrative order is against the manifest weight of the evidence or the administrative officer has acted arbitrarily and capriciously and thereby abused his discretionary powers, it is our duty to set aside such findings. Dorfman v. Gerber, 29 Ill2d 191, 193 NE2d 770 (1968); Bruce v. Department of Registration and Education, 26 Ill2d 612, 187 NE2d 711 (1963).

The questions to be considered in these cases are the public interest and welfare of the districts and persons involved. Evidentiary consideration given effect in prior cases include: assessed-value loss due to annexation to the charter district; the quality of education afforded in each district including teacher qualifications and salary ; per capita cost of education per pupil; teacher-pupil ratio; special educational programs and ability to assimilate new pupils; and distance for pupils to each school and amount of tax levy compared to maximum permissible levy.

In Case 11,013, the outlying district involved was Rochester Community Unit School District No. 3A„ The territory involved was a small parcel of ground lying east of Lake Springfield. This tract adjoins the extreme southeast part of the city of Springfield where the city touches the west central part of Rochester School District. Lake Springfield covers a large area extending along an arc which swings north and northeast making a barrier between the southeast side of Springfield district and the west side of Rochester district. A portion of the lake and land areas on the east side of Lake Springfield was annexed, resulting in the present case.

Rochester district contends that the territory now in question as annexed to the Springfield district creates an artificial arrangement and detaches an area logically and geographically belonging to the Rochester district. It is urged that this factor alone is substantial evidence which supports the school trustees’ decision.

The evidence shows that the Rochester district would lose only $89.03 in annual tax revenue. However that district introduced evidence of the assessed value of other lands lying in the adjacent lake area in the Rochester district and contended that future detachments of the same nature from its district along its western boundary will result in substantial losses in tax revenue. Other testimony and considerable argument was advanced to support this contention. It is asserted that future losses of adjacent territory might jeopardize recognition by the State of Illinois and would tend to decrease the quality of teachers and equipment which the district’s revenues then would support.

The record shows that the territory involved had no students residing in it. Testimony was admitted to show the territory was remote from many of the services the Springfield district would give; that high school students would have to travel some distance to attend Springfield High School; that the area in question is served by the Rochester district busses; and that in the opinion of certain witnesses the retention of the territory in the Rochester district would be conducive to the educational growth and benefit of the students.

Certain testimony was introduced on behalf of the Springfield district that it had been the policy of the Springfield district for many years to annex a school district in the metropolitan area upon petition of that district regardless of the number of pupils involved, and that the annexation would save a tremendous amount of money in holding school elections as the city assumes the cost of school elections within the city except for the printing of ballots. Opinion evidence of the superintendent of the Springfield district was introduced. He testified that it is detrimental to student interests and to educational programs when a corporate body annexes territory but omits it from its school district, as the best interests are served where the property and children are identified with the city and its school district.

The Rochester district further urges that even if the findings of the board as to the facts in evidence before the board of school trustees which were the main reasons for its action are not alone sufficient to justify its order, the minutes of the board show the trustees thoroughly discussed the testimony presented to them.

On this record, we are of the opinion that the evidence is not sufficient to support the order and that the order was against the manifest weight of the evidence. There being no pupils in the annexed territory, no testimony possibly could be produced, nor was any produced, to meet the consideration and test of the educational welfare of the pupils. The consideration of testimony concerning what may result if future annexations to the Springfield district and detachments from the Rochester district are effected, was erroneous. It could have no logical bearing on the effect of annexation of the particular territory here involved.

Here, as in the case of Board of Education of City of Bloomington v. County Board of School Trustees, 77 Ill App2d 368, 222 NE2d 343 (4th Dist 1966), while we need not be unmindful of prior annexations, neither are we free to ignore the possibility of future annexation. The fact of this annexation to the Springfield district clearly would not adversely affect the public interest and welfare of the districts and the persons involved. It is equally clear, however, that continual annexation to the Springfield district of territory of its adjoining districts will, at some point, cross the line of the permissible and result in an interference and conflict with the best interests of the schools of the area and of the persons therein. Each annexation or detachment must be examined in the light of the facts then existing, and for that purpose we believe it impermissible to speculate as to the effect of future and wholly contingent annexations or detachments. As we view the applicable statute, the legislature has prescribed as our only standard the necessity for making a factual determination of whether the detachment or annexation under review is contrary to the best interests of the districts involved and the persons therein.

The evidence before the board of school trustees was neither substantial nor sufficient to support its order of detachment from the Springfield district. Its order was, therefore, against the manifest weight of the evidence and the circuit court was in error in affirming the order.

Case No. 11,014 involved a detachment from BallChatham Community Unit School District No. 5, Sangamon County, of a 1.78-acre tract of vacant, unimproved and unoccupied land having no school pupils. This tract is approximately six to seven miles from the Ball-Chatham grade school, six miles from the high school and six miles from the junior high school of the Ball-Chatham district. It is .6 miles from the nearest Springfield-district grade school, 11/2 miles from the nearest junior high school and 3 to 3.7 miles from two available high schools. The estimated annual tax revenue of the tract was $400. Basically, the same evidence was introduced as to this tract as was in the Rochester-district case.

Case No. 11,015 involved a detachment from Ball-Chatham Community Unit School District of a small parcel of five acres of ground lying south of Springfield on U. S. Route 66, unimproved, unoccupied and having no pupils. The testimony introduced in this matter was similar to that in the other two cases. The financial tax loss would be $45 to $50 annually. The court here refused to consider the question of tax-revenue loss since there had been no showing that the district had reached its maximum legal tax levy. In this determination the trial court was correct. In every detachment proceeding there is a tax base valuation loss with a resultant loss of income to the district from which detachment is made, but this can in no way affect educational facilities detrimentally unless the maximum legal tax rate already is being levied. School Directors of School Dist. No. 82 v. Wolever, 34 Ill App2d 95, 180 NE2d 345 (2nd Dist 1962), affd, 26 Ill2d 264, 186 NE2d 281 (1962); Community Unit School Dist. No. 6 v. County Board of School Trustees, 9 Ill App2d 116, 132 NE2d 584 (3rd Dist 1956); Board of Education of Spaulding School Dist. No. 58 v. Special Charter School Dist. No. 61, 32 Ill2d 342, 205 NE2d 459 (1965). In the two latter cases, like the Rochester-district case, the findings and orders of the board of school trustees were against the manifest weight of the evidence. No pupils were involved in any one of these territories and tax-revenue losses were minimal. It is virtually impossible to conceive of any manner in which testimony could have been available or presented to support a finding that the annexation was contrary to the educational welfare of the pupils of the area. Mere conjecture or projections of detriments to be occasioned by future possible detachments cannot support an order setting aside or suspending an annexation to a special charter district.

As has been stated previously, the dilemma of prescribing legislatively the confinement of a special charter district to its existing territory or permitting the piecemeal dissection of adjoining noncharter school districts is a legislative, not a judicial task. Under the present statutory provisions, evidence sufficient to satisfy the standards presently prescribed must be produced before an annexation can be set aside or suspended. In this respect the records before us are wholly insufficient.

The judgment of the Circuit Court of Sangamon County in each case is reversed and these cases are remanded to that court with directions to enter orders reversing the Sangamon County Board of School Trustees.

Reversed and remanded with directions.

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


source: Caselaw Access Project

author: MR. JUSTICE DEMPSEY

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Herman Johnson, Defendant-Appellant.
    Gen. No. 51,216.
    First District, Third Division.
    January 23, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Cornelius E. Toole and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John M. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Herman Johnson was found guilty of attempt burglary in a jury trial and was sentenced to the penitentiary for a term of three to fourteen years.

He contends that his conviction should be reversed because prejudicial error was committed in permitting the State to introduce testimony of his attempted escape and in allowing certain photographs to be admitted into evidence and shown to the jury. He also contends that his guilt was not proved beyond a reasonable doubt.

On September 11, 1965, about 10:30 p. m., two police officers riding in a squad car observed three men standing in front of a clothing store on West Madison Street, Chicago. Their suspicion was aroused and they pulled up to the store and, as they did so, one man ran away. As they were talking with the other two men, they saw a fourth man, the defendant Johnson, standing inside the locked metal gates which protected the store’s recessed entrance. They saw him turn around and lay down on the floor. They ordered him to come out. He refused and the officers climbed over the gate and got him. The gate was approximately 7y% feet high, with 6 inches of space at the bottom and an 18-inch clearance at the top.

Johnson was searched and a knife was found in his pocket. He and the two other men were transported to the police station in a squad car. During the trip they broke the door of the car and attempted to escape. They were recaptured.

No error was committed in permitting testimony about the attempted escape. Evidence that a defendant resisted arrest or fled from arrest is admissible as tending to show his guilt. People v. Wright, 30 Ill2d 519, 198 NE2d 316 (1964), cert denied 379 US 11, 85 S Ct 133; People v. Talbe, 321 Ill 80, 151 NE 529 (1926).

Likewise, the court did not err in allowing the State to introduce into evidence photographs of the scene of the crime. The trial was held on Friday and Monday, January 7 and 10, 1966. On the intervening weekend, photographs of the store were taken and on Monday one of the officers testified that the photographs depicted the premises as they existed on the date of the alleged crime.

The district supervisor of the store had testified that two days after the episode at the store, he saw a cut in one of the plate glass windows, about a foot and a half long. The officer testified that at the time he arrested Johnson he observed a six-inch scratch on the window near the door and, at the request of the State, he marked the location of the scratch on a photograph.

The photographs assisted the jury in understanding the physical dimensions of the entrance and the size and construction of the gates behind which Johnson was found. The use of photographs for such a purpose is proper (People v. Allen, 17 Ill2d 55, 160 NE2d 818 (1959); People v. Rogers, 16 Ill2d 175, 157 NE2d (1959)) and no error resulted from the witness marking on the photograph the place where he saw the scratch on the window.

The defendant’s contention that the evidence against him was circumstantial and insufficient to establish his guilt beyond a reasonable doubt is without merit. Circumstantial evidence can sustain a conviction as well as direct evidence. People v. Russell, 17 Ill2d 328, 161 NE2d 309 (1959); People v. Asey, 85 Ill App2d 210, 229 NE2d 368 (1967). The defendant was where he had no right to be—inside the metal covering which was there to keep prowlers away from the door. Two of his three companions were peering into the store and the third, who was glancing around as if he were the lookout, ran when the police car approached. The defendant had a knife in his possession and there was a cut on the window glass near the front door; he tried to conceal himself when he saw the officers and tried to flee on his way to the police station. The jury was justified in believing that the defendant intended to break into the store and that he was guilty of attempt burglary.

A judgment of conviction will not be reversed unless the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. People v. Bates, 16 Ill2d 290, 157 NE2d 68 (1959); People v. Epping, 17 Ill2d 557, 162 NE2d 366 (1959). The evidence was not of this character and the judgment is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Safeway Insurance Company, Plaintiff-Appellant, v. Jessie Parker and Eddie Mae Gardner, Defendants-Appellees.
    Gen. No. 52,412.
    First District, Third Division.
    January 23, 1969.
    Rehearing denied February 17, 1969.
    John Narusis, Jr., of Lazzara, Narusis & Stimson, of Chicago (John Narusis, Jr., of counsel), for appellant.
    James M. P. D’Amico, of Chicago, for appellees.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal from an order denying plaintiff’s motion to vacate an arbitration award. Plaintiff contends that the arbitrators exceeded their powers by deciding that the defendants were covered under the uninsured motorist provision of a policy issued to defendant Jessie Parker and that the award should be vacated pursuant to the provisions of the Arbitration Act. Ill Rev Stats, c 10, § 112 (1967). The facts follow.

On May 16, 1965, defendants Jessie Parker and Eddie Mae Gardner were driving north on the Dan Ryan Expressway. An unidentified motorist swerved into their lane, forcing them to crash into a guardrail. There was conflicting evidence as to whether or not the unidentified motorist actually struck defendants’ car. The insurance policy in force provided coverage for damages caused by uninsured motorists. It provided that the term “uninsured motorist” included a “hit-and-run automobile [which] means an automobile which causes bodily injury to an insured arising out of physical contact . . . with an automobile which the insured is occupying.” (Emphasis ours.) It further provided that in the event the insurer and insured could not agree that the insured was legally entitled to recover or could not agree upon the amount due under the policy, the matter would be submitted to binding arbitration. It did not provide, however, for arbitration of the question of coverage.

Plaintiff filed a petition for a declaratory judgment asking the court to find that the accident in question was not within the coverage of the uninsured motorist provision and therefore was not subject to arbitration. The petition was denied and the court ordered plaintiff to proceed to arbitration. The arbitrators found for defendants and assessed damages of $6,000 for Parker and $2,700 for Gardner. The court denied plaintiff’s motion to vacate the award and plaintiff has appealed.

Section 112 of the Illinois Uniform Arbitration Act provides:

“§ 112 (a). Upon the application of a party, the court shall vacate an award where:
“(3) The arbitrators exceed their powers;”
(Ill Rev Stats, c 10, § 112(a) (3) (1967).)

The scope of the arbitrators’ power is determined by the arbitration agreement between the parties and the “parties are bound to arbitrate only those issues which by clear language they have agreed to arbitrate.” Flood v. Country Mut. Ins. Co., 41 Ill2d 91, 242 NE2d 149, reversing the decision of the Appellate Court in 89 Ill App2d 358, 232 NE2d 32; Liberty Mut. Fire Ins. Co. v. Loring, 91 Ill App2d 372, 235 NE2d 418.

The arbitration agreement in the instant case provided that the parties would submit to arbitration disputes “as to whether the insured or [his] representative is legally entitled to recover such damages, and if so, the amount thereof.” In the Flood case, supra, the Supreme Court of Illinois considered the scope of an arbitration agreement similar to the one involved here and held that arbitration was limited to the issue of the liability of the uninsured motorist to the insured and the amount thereof and that it was for the court to determine the issue of coverage raised by the insurance company.

The arbitrators in the instant case decided the identical issue which the Supreme Court held in the Flood case was not subject to arbitration. Accordingly the trial court should have allowed plaintiff’s motion to vacate the arbitrators’ award. The trial court’s order denying plaintiff’s motion to vacate is reversed and the cause is remanded for the purpose of hearing and determining the issue of coverage and for such other and further proceedings as are not inconsistent with the views herein expressed.

Order reversed and cause remanded with directions.

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


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Archie, a Minor, Defendant-Appellant.
    Gen. No. 52,722.
    First District, Third Division.
    January 23, 1969.
    Rehearing denied February 20, 1969.

      Alan H. Silverman, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Sheldon M. Schapiro, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

The defendant was found guilty at an adjudicatory hearing of possession of marijuana in violation of section 22-3 of the Criminal Code. The defendant was adjudged a delinquent and was committed to the Illinois Youth Commission by a Magistrate of the Circuit Court of Cook County sitting in the Juvenile Division.

The defendant prosecutes this appeal and contends that he was not proven guilty beyond a reasonable doubt. It should be noted that the quantum of evidence required to establish the guilt of the juvenile in a delinquency hearing is now that degree of proof to establish his guilt beyond a reasonable doubt. (In re Urbasek, 38 Ill2d 535, 232 NE2d 716.) The Supreme Court in the Urbasek decision, relying upon the spirit of the language in In re Application of Gault, 387 US 1, 87 S Ct 1428, expressly voided the current provisions of the Juvenile Court Act which incorporate the preponderance of the evidence standard for delinquency proceedings.

Mr. Otis Finney, the Assistant Principal of Dunbar High School, was the State’s first witness and he testified that on June 16, 1967, he apprehended the defendant in the high school after the defendant had been pointed out by a student, Gregory Geirn, as the boy who had been selling “reefers.” The defendant was taken to a Conference Room in the school and the police were called.

Officer Joseph Mucharski was called as the State’s second witness and testified as follows: On June 16, 1967 he was called to Dunbar High School and was directed to a Conference Room occupied by Mr. Finney, two teachers, and the defendant. As he was talking to Finney, he observed James Archie “take his hand out of his pocket, and hold it down straight to his leg.” The officer then walked over to the left side of the defendant, and from two to six inches from the defendant’s left side he discovered a hand-rolled, partially smoked cigarette containing a crushed leaf. The cigarette was seized by Officer Mucharski and the defendant was searched whereupon the police removed some “shavings of green crushed leaves” from the defendant’s left pants pocket. Both the cigarette and the leaves were transferred to the police laboratory.

Miss Shirley Linduska, a chemist at the Chicago Police Department Crime Detection Lab, testified that an analysis of the hand-rolled cigarette contained Cannabis Sativa Linne, commonly known as marijuana. She further testified that she did not test the crushed green leaves which had been found in the defendant’s pocket.

The defendant called as his first witness Gregory Geirn who stated that on the date in question the defendant accompanied him to Dunbar High School to get a job and, at no time, did he point out the defendant as the boy who was selling narcotics in the school.

The defendant took the stand in his own behalf and denied that he had ever been in possession of marijuana. He stated that he went to Dunbar that day to look for a job even though he was aware that Geirn “needed a pusher” to point out in order to prevent his being expelled from school. However, the defendant testified that this realization did not prevent him from going to the high school that day to seek employment since he was not a seller in narcotics.

Even if the trier of fact disbelieved the defendant’s and Gregory Geirn’s testimony and completely accepted the testimony of the State’s witnesses, we do not believe that it was proven beyond a reasonable doubt that the defendant was in possession of marijuana on the date in question.

The contents found in the defendant’s pocket were never established to be marijuana or any narcotic substance. Therefore, possession in the instant case must be predicated upon the discovery of the cigarette on the floor near the defendant in the Conference Room. Possession can be established by showing that the accused either had actual or constructive possession of the contraband. (People v. Mack, 12 Ill2d 151, 145 NE2d 609.) Actual possession was not established in the instant case since no proof was offered as to the content of the leaf found in the defendant’s pocket. It is the State’s theory that the inference to be drawn from the proximity of the cigarette to the defendant’s person supports a finding that the defendant was in possession.

This case can be distinguished from People v. Richardson, 21 Ill2d 435, 172 NE2d 801, in which the Supreme Court affirmed a conviction of possession of narcotics. In Richardson, two police officers confronted the defendant in an alley and when they told the defendant that they were police officers, one of the officers saw the defendant “make a motion which suggested to him that defendant was throwing something to the ground.” A cigarette package containing heroin was found a few feet from where the defendant had been standing. In the case at bar, there is no testimony indicating that anyone saw the defendant make a motion which would indicate that he was throwing something to the floor or discarding some item. The record simply indicates that the defendant took his hand out of his pocket and placed it down along his leg. Such a gesture is not uncommon and it cannot support an inference that something in the defendant’s possession was discarded. Moreover, the record does not disclose whether the defendant held his right or left hand straight down to his side. This absence of evidence is highly significant in view of the Officer’s testimony that the cigarette was discovered on the defendant’s left side.

The State has relied completely on circumstantial evidence. In People v. Dougard, 16 Ill2d 603, 607, 158 NE2d 596, the court stated:

“While circumstantial evidence is legal evidence, yet to warrant a conviction on such evidence the facts proved must so thoroughly establish the guilt of the person accused as to exclude every reasonable hypothesis of his innocence.”

Due to the aforementioned weaknesses in the probative value of the circumstantial evidence presented by the State, this court is of the opinion that the defendant was not proven guilty of possession of marijuana beyond a reasonable doubt, and therefore, the adjudication of his delinquency is reversed.

Reversed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: PRESIDING JUSTICE LYONS.

text:
    People of the State of Illinois, Appellee, v. Oliver Wilson, Appellant.
    Gen. No. 51,441.
    First District, Second Division.
    January 28, 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; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Truschke, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE LYONS.

Not to be published in full.


author: MR. JUSTICE MCCORMICK

text:
    People of the State of Illinois, Appellee, v. Paul Durant, Appellant.
    Gen. No. 51,924.
    First District, Second Division.
    January 28, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert B. Rosen, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

Paul Durant, defendant, was indicted for the crimes of robbery and aggravated battery. He was tried before a jury which returned a verdict of guilty, and the defendant was sentenced to a term of five to ten years in the Illinois penitentiary, the sentence on each count of the indictment to run concurrently.

In this court the defendant complains that he was not properly identified; therefore, was not proved guilty beyond all reasonable doubt; that irrelevant evidence was introduced; that the prosecutor’s arguments were improper; and that the defendant was denied a fair and impartial jury. (The defendant offered no evidence whatsoever in the case.)

There is no question that the complainant, Frank Wilkes, had parked his truck on Homer Street, four feet west of Damen Avenue, in the City of Chicago; that he was attacked by two men and a woman, and suffered head injuries, broken ribs and bruises; and that his wallet was taken, with two fives and a one-dollar bill removed from it. Shortly after the crime Officer Victor Hoffman arrested the defendant and James Catalano in an alley east of Damen and 100 feet south of Homer Street, where they were seen at a “T” in the alley, coming from the north and turning west. Defendant’s shirt was out and his pants were unzipped. Catalano was carrying one ten-dollar bill and two singles; defendant carried no money.

Dr. William Haines, a psychiatrist, had examined the defendant three months before the trial and reported he was competent to stand trial. The report indicated that the defendant had been in Elgin State Hospital a few months for observation, and had previously been in the hospital from October 24, 1962 to January 24, 1968; the defendant was described as “emotionally unstable.”

On July 5, 1966, a sanity hearing regarding the defendant was held before a jury. At that hearing Dr. Haines testified that he had examined the defendant on June 6 and found that the defendant understood the nature of the charges against him and was able to cooperate with his attorney. The jury returned a verdict finding the defendant competent to stand trial.

When the defendant was brought into the courtroom he was struggling with two deputy sheriffs. The trial judge excused the prospective jurors and asked the defendant if he wished to be present at the trial proceeding. The defendant began mumbling and crying, and said, “Leave me alone.” The court then held that defendant had waived his right to be present and ordered him removed from the courtroom until he decided to conduct himself properly. The court noted then that the defendant had behaved normally on prior court dates and during the morning in question; that there had never been any outbursts.

The jury was selected from the panel which had observed defendant’s outburst, and the court told the jury that the defendant did not choose to attend the proceedings and was in custody. The jury was carefully examined both by counsel and the court as to whether or not the defendant’s conduct in the courtroom would have any effect on their verdict, and the only jurors selected were those who categorically answered that it would not.

The first witness for the State was Frank Wilkes, who testified that on April 21, 1966, at about 7:30 p. m., he and his partner unloaded some merchandise at his antique shop at 1944 North Damen Avenue, after which his partner went inside. Wilkes pulled the truck around the corner on Homer Street, about 20 feet from the shop, and at that time some people threw open both doors of the truck and began clubbing him. (He identified the defendant as one of the assailants.) The defendant then struck him twice with a pressure cooker, and the defendant’s companion hit Wilkes from the other side; during this time a girl who was with the assailants was shouting, “Grab him, kick him, grab his purse, grab his wallet, kick him hard.” The defendant then picked up a hammer and swung it at Wilkes’ head; it struck a glancing blow and the head of the hammer flew across the street. The woman then grabbed Wilkes’ legs; he fell, and the three persons kicked him as he lay on the ground.

Wilkes testified that after the three had escaped, he noticed that $11 was missing from his wallet, as well as a valuable gold coin piece he wore around his neck. Shortly afterwards a squad car arrived and Wilkes got into the car to talk with the officers. At this time another squad car (with the two suspects in it) pulled up and parked about seven feet away. Wilkes was unable to see the suspects well enough to recognize them from that distance. When both squad cars went to the police station Wilkes got out and faced the suspects and identified them as the men who had attacked him.

Wilkes testified that he had jerked a jacket off the defendant when he tried to get away, and that the other man (Catalano) was wearing a dark sweater, either black or maroon. Wilkes stated that during the attack he was struck on the side four or five times, resulting in swelling, two broken ribs and a swollen ear.

Officer Victor Hoffman testified that he was in a patrol car on April 21, 1966, about 8:30 p. m., when he was stopped by a citizen on North Damen Avenue; that he then went to Damen and Homer, where he saw Wilkes and noted his bruised and swollen neck and torn trousers. After talking with Wilkes, Hoffman and his partner proceeded to an alley south of Homer and Damen, where they saw the defendant and Catalano running out of an adjoining alley; the men were disheveled in appearance, and when searched by the police Catalano was found to have $12 on his person; no money was found on the defendant. The defendant was wearing a white shirt, gray trousers with hanging suspenders, and the shirt was outside the trousers. Catalano wore a maroon sweater and dark trousers. The officer placed both men under arrest.

At the trial the State offered in evidence a dark shirt which was found in the alley; this exhibit was objected to but was admitted over the objection.

The first objection made by the defendant in this court is that the identification was suggestive and violated due process of law. During the attack Wilkes had grappled with the assailants; shortly after the robbery he confronted the defendant at the police station, and at the trial he pointed out the defendant as the man who had beaten and robbed him; and he stated that he had seen the defendant a couple of times before in the neighborhood. The defendant claims that Wilkes should have identified him while he was sitting in the squad car; however, Wilkes’ explanation of his failure to do so was sufficient.

The defendant complains of the fact that a police officer, prior to the identification at the police station, said to Wilkes: “We have the men who assaulted you.”

Defendant also complains that Wilkes identified him without his having been placed in a lineup. In People v. Snell, 74 Ill App2d 12, 219 NE2d 554, the court held that while it is preferable to have a witness identify a party from a group of unknown persons, failure to follow this practice goes only to the weight of the evidence, and is not necessary. The court said at page 22:

“Where, as here, the witness was present during the commission of the crime, had ample opportunity to observe his assailant, and was called upon to make the identification after a lapse of less than an hour from the time of the occurrence, his testimony, if otherwise credible, can be sufficient for conviction notwithstanding failure to employ an ideal identification procedure.”

In People v. Byrd, 21 Ill2d 114, 171 NE2d 782, the court said at 117:

“Defendant also contends that at the lineup the police officers pointed out and identified defendant before the witnesses had identified him. The evidence is conflicting on this point. However, this circumstance, even if proved, would go only to the weight and credibility of the witnesses’ testimony.”

The defendant cites People v. Botulinski, 383 Ill 608, 50 NE2d 716, in which the rule is set out that the proper way to have a witness identify, without suggestion from any officers or any interested persons, is to pick out the guilty party from a number of persons unknown to the witness. However, on page 615 the court said:

“We have held that where one accused of a crime is brought alone before the witness for the purpose of identification, such identification is not entitled to the same weight and credibility as where the witness picks out the accused from a number of persons brought before the witness. [Citing People v. Sanders, 357 Ill 610.]"

In the Sanders case the court held that where the witness is told in advance of the identification that the guilty party is in the custody of the police and the prisoner is produced alone for the purpose of identification, the weight of the evidence of identification is impaired. And it has been held that a positive identification by one credible witness is sufficient to support a conviction. People v. Saravia, 64 Ill App2d 479, 211 NE2d 560; People v. Soldat, 32 Ill2d 478, 207 NE2d 449.

In the instant case, during the struggle, Wilkes had full opportunity to observe the defendant, and he testified that his recognition of the defendant was aided by the fact that he had seen him a couple of times before in the neighborhood. He identified the defendant at the police station shortly after the robbery, and again in court. His identification was sufficient, and the trial court properly accepted it.

Wilkes also testified that when the police talked to him in the squad car he told them the assailant had bushy black hair; that he was a little taller than Wilkes, who was 5' 9"; and that he was a very young man. (The police officer testified that in his opinion the defendant was 19 or 20 years old.) He did not mention the matter of the man’s weight. The defendant complains that the prosecutor said to the jury that Wilkes had stated that he thought the defendant was probably Mexican or Indian. No such statement was made by Wilkes, but this inadvertent remark on the part of the State, while improper, was not reversible error.

The defendant also argues that the foregoing argument of the prosecutor was improper, as well as his statement about a shirt found by the police in the alley near the place of arrest. The defendant was said to have walked out of an alley a few feet from where the incident took place, and that the shirt matching the description given by Wilkes was found in the alley. It is true that Wilkes gave no description of the shirt worn by defendant, and the police officers testified that the defendant was wearing a white shirt at the time of his arrest. The argument was not prejudicial.

The prosecutor also stated that Wilkes had testified he saw the defendant “take off across Damen Avenue, across the street”; Wilkes did not testify to such a fact. What he did say was that at the time the police officers first came to question him, the defendant had already fled; “they were across the street, yes.” At the time of the assault the truck was parked on Homer, approximately 4 or 5 feet west of Damen. Officer Hoffman testified that after the conversation with Wilkes, he and his partner went looking for two men, and they went into the alley south of Homer Street, which was eastbound from Damen, about 100 feet from the intersection. The statement of the prosecutor concerning the testimony of the police officers was not improper. Furthermore, no objection was made to the argument at the trial. In People v. Conrad, 81 Ill App2d 34, 49, 225 NE2d 713, the court said:

“Defendant attempts to raise on appeal for the first time the alleged prejudicial nature of other statements made by the prosecutor. However, since no objection was made at trial the issue is waived.”

And the court in People v. Gaston, 85 Ill App2d 403, 229 NE2d 404, said:

“Where the defendant’s attorney does not object to the argument deemed improper, the court will not reverse unless it appears that he was deprived of his right to a fair trial.”

It has been held that statements based on the evidence or on legitimate inferences deducible therefrom do not transcend the bounds of legitimate argument. People v. Woods, 26 Ill2d 557, 188 NE2d 1; People v. Allen, 73 Ill App2d 256, 219 NE2d 653.

The arguments made by the prosecutor in the instant case did not have the effect of depriving the defendant of a fair trial, and therefore should not be considered by this court.

Defendant also argues that he was deprived of a fair trial because of improper remarks by the court. As we have pointed out earlier in the opinion, the court ordered the defendant excluded from the courtroom in accord with the rule laid down in People v. DeSimone, 9 Ill2d 522, 138 NE2d 556, in which case the defendant refused to enter the courtroom at various stages of the proceeding, and thus voluntarily absented himself from the trial. On other occasions he caused disorder in the court by profane outbursts directed at witnesses in the court. After one such outburst the court caused the defendant to be removed from the courtroom. The Supreme Court held that the provision of section 9 of Article II of the Illinois Constitution (which ordains that an accused shall have the right to appear and defend in person) may be waived; and the court further held that the defendant did waive his right.

In the instant case, after the defendant was removed from the courtroom the following colloquy occurred between the court and defense counsel (Van Zeyl):

The Court: Mr. Van Zeyl, did you have any conversations with him about being present during the trial?
Van Zeyl: Yes, I did.
The Court: What did he say ?
Van Zeyl: Yesterday afternoon at the County Jail he indicated to me by inference—not positively, but just asked me the question as to what would happen if he did something in the courtroom. I made the remark to him, not to play games with me, I am his lawyer. I told him that if he so chooses he would voluntarily absent himself from the courtroom. He wanted to know what that meant and I explained, I told him that he had a right to waive his presence during the trial.
The Court: And he has chosen not to be present.
Van Zeyl: I also spoke to him back in the lockup in back of the courtroom.
The Court: Today?
Van Zeyl: Yes. I went back there at two o’clock before the jury was summoned into the courtroom and I asked him what he wanted to do here today. He told me “leave me alone.” I asked him, “Well, I’m your lawyer, I have to know what I am doing when he stepped out before your Honor.”
He said, “leave me alone,” and he grabbed me by the tie and tried to pull me through the bars. At this point I saw no further use in conducting any kind of a discussion with him, so that’s all I know at this time.
During the trial defense counsel made the following statement to the jury:
Confine your deliberations solely to what you heard from the stand, irrespective of what mental problem the defendant may have now or may have had yesterday or—

At this point the Assistant State’s Attorney objected, saying there was no showing of any mental problem, and the objection was sustained. Defense counsel said, “Well, judge, I think that’s obvious.” The court said: “Now, I said sustained, Mr. Van Zeyl.” Mr. Van Zeyl said, “All right.” The court said, “I don’t think there is.”

On September 8, 1966, the defendant had a fair trial and was proved guilty beyond a reasonable doubt. The Criminal Code of 1961 (Ill Rev Stats 1963, c 38, § 1-7 (m)) is as follows:

When a person shall have been convicted of 2 or more offenses which did not result from the same conduct, either before or after sentence has been pronounced upon him for either, the court in its discretion may order that the term of imprisonment upon any one of the convictions may commence at the expiration of the term of imprisonment upon any other of the offenses.

The Committee which prepared the draft of the Code adopted by the legislature has said in its comments:

Subsection (m) is intended to codify the holding in People v. Schlenger, 13 Ill2d 63, 147 NE2d 316 (1958), by the implicit converse of the provision stated, i. e., if the offenses resulted from the same conduct the defendant may not be sentenced on both, either concurrently or consecutively. “Conduct” is defined in section 2-4 and is used in the sense of “the same transaction” discussed in Schlenger, supra.

See People v. Schlenger, 13 Ill2d 63, 147 NE2d 316; People v. Duszkewycz, 27 Ill2d 257, 189 NE2d 299; People v. Ritchie, 66 Ill App2d 302, 213 NE2d 651; and People v. Ritchie, 36 Ill2d 392, 222 NE2d 479. In People v. Peery, 81 Ill App2d 372, 225 NE2d 730, it was held that even where the question of the improper sentences is not raised (as it was not in the case before us) in the reviewing court, the reviewing court must take notice of it.

Under the authority of the statute and the above cited cases, concurrent sentences for crimes resulting from the same conduct are improper, and the conviction of the lesser crime must be reversed. Therefore, the conviction on the robbery charge is affirmed, and the conviction for aggravated battery is reversed.

Affirmed in part, reversed in part.

LYONS, P. J. and BUEKE, J., concur.


author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Hammitt Hampton, Defendant-Appellant.
    Gen. No. 52,399.
    First District, Second Division.
    January 28, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard Trais, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

The defendant was charged with the crime of Attempt Theft from the person. He appeals from a judgment on a verdict wherein he was sentenced to the penitentiary for a term of not less than three years and not more than three years and one day.

The indictment charged defendant with the offense of attempt but failed to cite the statutory section allegedly violated as required by Ill Rev Stats 1967, c 88, § 111-3 (a). Instead, the indictment cited the statutory section for Theft (16-1). Defendant objected to this statutory violation in a pretrial motion to dismiss and preserved it with a motion in arrest of judgment. Both of these motions were overruled.

Defendant urges that the failure of the court to order the defect of the indictment remedied or to dismiss the indictment constitutes reversible error. The defendant calls attention to the requirement of section 111-3 (a) (2) of the Code of Criminal Procedure that a charge shall be in writing and allege the commission of an offense by citing the statutory provision alleged to have been violated. We conclude that the failure to cite the correct provision of the statute is not an error which vitiates the indictment. The indictment clearly charged the offense of Attempt Theft. We are of the opinion that the indictment is not vulnerable to a motion to dismiss or to a motion in arrest of judgment, nor subject to attack upon the charge that it is void. The incorrect citation of the statute is a formal defect. Under section 111-5 an indictment may be amended on motion by the State’s Attorney or the defendant at any time because of formal defects. The amendment of the indictment to include a reference to section 8-4 of the Criminal Code could have been done but was not requested. The defendant was fully informed of the charge and he has no solid ground to complain. People v. Delafosse, 36 Ill2d 327, 330, 223 NE2d 125; People v. Blanchett, 33 Ill2d 527, 212 NE2d 97; People v. Hill, 68 Ill App2d 369, 375-76, 216 NE2d 212; People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 323, affd 34 Ill2d 179, 214 NE2d 765.

As his second point the defendant maintains that the court’s refusal to admit the defendant’s drawing of the scene was error. The People’s case consisted of the testimony of two Chicago Transit Authority police officers. Officer William Pishotta testified that while boarding the front door of a CTA subway car at State and Jackson at approximately 11:30 p. m., October 23, 1966, he felt a hand on his wallet in his left rear pocket, whereupon he seized the hand and turning, announced his office and arrested the defendant. His partner, Officer Zito, testified that at this time he entered the rear door of the same car and immediately heard Officer Pishotta speak. Zito testified that he looked towards the front of the train and saw the defendant with his hand under the left side of Officer Pishotta’s coat. Zito further testified that he knew the defendant from several past contacts and had arrested him at least once.

The defendant testified that three days before the alleged incident he had met Officer Zito at a station stop. He said that Zito frisked him and threatened to arrest him at that time. The defendant further testified that Zito told him the next time he saw the defendant in the subway he was going to jail. Defendant stated that on the night in question he ran to catch the train and when he boarded the train Officers Zito and Pishotta were sitting on either side of the door. Officer Zito asked the defendant what he was doing on the train and the defendant said he was going home. Defendant testified that he got off at the Monroe Station, where Officer Zito arrested and handcuffed him and subsequently took him to the station. The defendant denied ever putting his hand in Officer Pishotta’s pocket.

The defendant, who made a drawing of the car in which the alleged incident took place, testified that it was a fair and accurate representation of what he saw on October 23, 1966. The introduction of the drawing by the defendant was objected to on the ground that there was not a proper foundation, that it was a self-serving document, that it presented a conclusion of the witness and that it did not accurately portray the condition of the car. The defendant points out that the drawing was not being introduced as a piece of substantive evidence offered for the truth of the contents but as an illustration of the defendant’s testimony. The parties agree that the admissibility of a drawing of this nature is a matter within the discretion of the trial judge who may accept or reject it. Department of Public Works and Buildings v. Chicago Title & Trust Co., 408 Ill 41, 52, 95 NE2d 903; Smith v. Ohio Oil Co., 10 Ill App2d 67, 134 NE2d 526. It is doubtful that the drawing would aid the jury in deciding the case. The trial judge pointed out that the motorman was placed on the wrong side of the car, thus rendering a distorted view; certain marks and writings on the drawing were not self-explanatory and tended to confuse the picture and the objects in the drawing were depicted out of their natural proportion, thus yielding a very faulty perspective for the viewer. The record reveals that one of the principal factual issues in the case was whether Officers Pishotta and Zito were seated in the car when defendant entered or whether they all entered the car at the Jackson and State station. There was no conflict in the witnesses’ descriptions of the scene. We find that the trial judge did not abuse his discretion in refusing to admit the drawing.

For these reasons the judgment is affirmed.

Judgment affirmed.

LYONS, P. J. and McCORMICK, J., concur.


text:
    Carol Clifford, Plaintiff-Appellee-Appellant, v. Ronald F. Schaefer and Grace M. Goedke, Defendants-Appellees, and Paul L. Williams, Executor of the Estate of Bertram H. Yarwood, Deceased, Defendant-Appellant.
    Gen. Nos. 52,564 and 52,662. (Consolidated.)
    First District, Second Division.
    January 28, 1969.

      Alan E. Morrill, Robert A. Sprecher and Edward W. Barrett, of Chicago (Morrill, Koutsky, Klomann and Chuhak, of counsel), for appellant.

      Berchem, Schwantes & Thuma, Mann & Rifken, and William J. Harte, of Chicago (Herold E. Rifken and William J. Harte, of counsel), for appellees.
   MR. JUSTICE BURKE

delivered the opinion of the court.

A two-count complaint was filed by plaintiff Carol Clifford to recover damages for personal injuries allegedly sustained by her when an automobile operated by defendant Bertram Yarwood in which plaintiff was a passenger, collided with an automobile operated by defendant Ronald Schaefer and owned by defendant Grace Goedke. Count I of the complaint alleged that Yarwood operated his vehicle in a wilful and wanton manner, thereby causing the injuries complained of; Count II alleged Schaefer and Goedke were guilty of ordinary negligence in the operation of the Goedke automobile. (Yarwood died after the commencement of this action but prior to trial, the cause of death not appearing of record, and defendant-executor Paul Williams was substituted in his stead; for convenience, Williams will hereinafter be referred to as “Yarwood” wherever relevant.) Judgment was entered on a verdict returned against plaintiff and in favor of Schaefer and Goedke, from which plaintiff appeals; judgment was also entered on a verdict rendered in favor of plaintiff and against Yarwood, in which damages were assessed in the amount of $35,000, from which Yarwood appeals.

The mishap occurred at a restaurant entrance driveway on U. S. Route 20 near Elgin, Illinois approximately 5:30 p. m. on August 9, 1965. The weather was clear and dry, and it was daylight. Route 20 carries two eastbound lanes and two westbound lanes of traffic at that point, and the speed limit is posted at 65 miles per hour. The restaurant, which is situated on the south side of the highway, is serviced by two entrance driveways from the highway, to the east and to the west of the restaurant forming a “horseshoe” pattern in the front of the restaurant. Along the highway to the west of the restaurant is a rise in the landscape, resulting in a rise or hill in the highway at that point. A vehicle traveling easterly on the highway, to the west of the hill, does not become visible from the east side of the hill until the vehicle reaches the crest of the hill, a distance approximately 150 to 200 feet from the east entrance driveway to the restaurant. Likewise, westbound vehicles do not become visible to operators of eastbound vehicles until the eastbound vehicle reaches the crest of the hill.

After the jury was instructed by the trial court that her testimony should be considered only as to defendants Goedke and Schaefer, but not as to Yarwood, plaintiff testified that she and Yarwood, aged 72 and 78 respectively, had been friends since 1909. On the date in question they were proceeding in the Yarwood automobile to the restaurant above referred to for dinner, traveling westerly along Route 20. Plaintiff was seated on the passenger side of the front seat. As Yarwood was turning into the east restaurant entrance driveway, crossing the eastbound lanes of traffic, the witness for the first time observed the Goedke automobile approximately 10 feet from her side of the Yarwood vehicle. Plaintiff stated that she was knocked unconscious by the impact of the vehicles and remembered nothing thereafter until she regained consciousness in a hospital.

Defendants Schaefer and Goedke were also permitted to testify concerning the accident after the jury was instructed that their testimony could be considered only as to each other and to plaintiff, and not as to Yarwood. Schaefer testified that he left his place of employment in Elgin between 5:15 and 5:30 p. m. on the evening in question. He was driving an automobile owned by his mother-in-law, Grace Goedke, who was a passenger in the automobile at the time. Schaefer testified that he was proceeding eastward on Route 20 at a speed of between 50 and 55 miles per hour, traveling in the outer or southernmost lane of traffic. As the Goedke automobile reached the crest of the hill west of the restaurant, Schaefer observed the Yarwood automobile in the inner westbound lane of traffic, to the east of the east restaurant entrance driveway. When the witness reached to within 80 to 85 feet of the Yarwood automobile, the latter vehicle commenced a left-hand turn across the eastbound lanes of traffic into the east entrance driveway. Schaefer testified that he applied the brakes on the Goedke automobile, swerved slightly to the left, and struck the center portion of the Yarwood vehicle on the passenger side with the right front portion of the Goedke automobile. The collision occurred in the outer lane of eastbound traffic. Schaefer further stated that three to five seconds elapsed between the time he first observed the Yarwood automobile and the time of the collision, and that it was only one or two seconds between the time he noticed the Yarwood vehicle commence the left-hand turn and the time of impact.

Mrs. Goedke testified that she was seated on the passenger side of the front seat of the Goedke automobile operated by her son-in-law on their way home from work. She testified that she first noticed the Yarwood vehicle several automobile lengths east of the east entrance driveway to the restaurant as the Goedke vehicle reached the crest of the hill west of the restaurant. She further testified that when the Goedke vehicle reached the west restaurant entrance driveway, she observed the Yarwood vehicle facing in a southwesterly direction at the east driveway entrance, partly in the inner westbound lane of traffic and partly in the inner eastbound lane of traffic. Mrs. Goedke testified that Schaefer exclaimed, “Oh, no!” and attempted to brake the Goedke automobile but was unable to avoid a collision with the Yarwood vehicle.

County deputy sheriff John Sbarbaro testified that he received a radio communication to investigate an automobile accident at the restaurant approximately 5:35 p. m. on the day in question, and arrived at the scene approximately five minutes later. Officer Sbarbaro testified that he had conversations with Yarwood and with an eyewitness, Louis Bertani, at the scene. Over objection of counsel for Yarwood, the officer was permitted to testify that Bertani told him that the Yarwood automobile, in making the left turn, “cut in front of” the Goedke vehicle. Again over objection, the officer testified that he was told by Yarwood at the scene that he, Yarwood, thought he had ample time in which to make the turn into the driveway. The officer also stated that he measured tire skid marks from the Goedke automobile between 50 and 55 feet, and further that he observed no skid marks caused by the Yarwood vehicle.

Louis Bertani testified that he had just arrived in the parking lot of the restaurant and was getting out of the automobile in which he had been riding when he heard the screech of automobile tires followed by a crash. The witness testified that the Schaefer automobile was proceeding easterly approximately 40 or 50 miles per hour and that the Yarwood vehicle was in the process of making a turn across the eastbound lanes of traffic, traveling approximately 20 to 25 miles per hour. The collision occurred in the eastbound lanes of traffic. The witness further testified that the vehicles were approximately 30 feet apart when he first heard the screech of tires. He related that he spoke to the officer who investigated the accident, two to five minutes after the officer arrived, and told the officer that the Yarwood automobile turned in front of the Goedke automobile.

Plaintiff was then called by Yarwood as an adverse witness and testified that she had known Yarwood for many years and that she had been a passenger in his automobile on many occasions. She testified that, on the day in question, as the Yarwood automobile approached the east entrance driveway to the restaurant, Yarwood slowed the vehicle. Plaintiff also testified that she remembered the directional signal click at least two or three times before the accident, but that she was not certain when the signal was turned on.

Upon the death of Yarwood prior to the trial herein, plaintiff and defendants Schaefer and Goedke were rendered incompetent by the provisions of the Dead Man’s Act to testify as to any conversation or transaction had with the deceased prior to his death. Ill Rev Stats 1965, c 51, par 2. The interests of all three parties were “adverse” to those of Yarwood within the meaning of the statute, plaintiff because she was seeking relief against Yarwood (Ruspantini v. Steffek, 346 Ill App 470, 105 NE2d 323, revd on other grounds 414 Ill 70, 110 NE2d 198) and defendants Schaefer and Goedke because they could avoid liability, partially or completely, by showing that Yarwood acted in a wilful and wanton manner in the operation of his automobile and that he was the cause of the accident. (See Mernick v. Chiodini, 12 Ill App2d 249, 258-259, 139 NE2d 784.)

However, plaintiff was called by Yarwood under section 60 as a witness to testify as to Yarwood’s actions immediately prior to the accident, thereby waiving her incompetency to testify to the accident. Perkins v. Brown, 400 Ill 490, 81 NE2d 207. The question arises whether the testimony given at trial by Schaefer and Goedke may likewise be considered against Yarwood, in the light of the third exception contained in the Dead Man’s Act providing that where the protected party, or any person “having a direct interest” in the outcome of the action, shall testify on behalf of the protected party to any conversation or transaction with the opposite party or party in interest, then such opposite party or party in interest may also testify to the same transaction or conversation. Ill Rev Stats 1965, c 51, Par 2, 3rd exception. (See also 55 Illinois Bar Journal, 18, 20; 80 ALR2d 1296, 1298.)

In the case of VanMeter v. Goldfarb, 317 111 620, 148 NE 391, the decedent, his brother and a friend darted over a fence into the path of defendant’s oncoming automobile. Decedent’s brother and the friend ran clear of the automobile, but decedent ran into its side, causing his death. Decedent’s brother testified on behalf of the decedent’s estate concerning the occurrence; defendant, over objection by plaintiff, testified in his own behalf as to the occurrence. Appealing from a judgment entered upon a verdict for defendant, plaintiff maintained that the term “transaction” as employed in the Dead Man’s Act referred only to those relationships between parties which are brought about by negotiations or mutual dealings, and that it did not refer to “mere occurrences” such as automobile accidents. The reviewing court there found that an “occurrence” was a “transaction” within the meaning of the statute and held that the trial court properly allowed defendant to relate his version of the accident.

While it is true that a witness whose incompetency has been removed by such action on the part of the adverse party may testify only to that particular conversation or transaction gone into by the other party, he may nonetheless explain the “entire conversation or transaction” which was gone into by the other party. Perkins v. Brown, 400 Ill 490, 81 NE2d 207. If, therefore, the testimony of Schaefer and Goedke may properly be considered against Yarwood, it may be considered as to the entire transaction or accident. VanMeter v. Goldfarb, 317 Ill 620, 148 NE 391.

As appears from the line of questioning employed by Yarwood, plaintiff was called as a witness by Yarwood for the purpose of eliciting testimony as to the nature of Yarwood’s actions in the operation of his vehicle while in the process of executing the left-hand turn into the restaurant driveway. That this was an attempt to demonstrate Yarwood’s freedom from any wrongdoing in the transaction cannot be seriously disputed. Plaintiff was a party directly interested in the outcome of the action, whose interests were adverse to those of Yarwood. Defendants Schaefer and Goedke, being also involved in the accident, were also parties to the transaction within the terms of the Dead Man’s Act. Since Yarwood sought to employ the testimony of a party directly interested in the outcome of the action to demonstrate his freedom from wrongdoing in the transaction, thereby attempting to attach, in full or in part, liability upon Schaefer and Goedke for plaintiff’s injuries, the latter defendants should be afforded an opportunity to refute that evidence by their own testimony. Ill Rev Stats 1965, c 51, Par 2, 3rd exception. An undue advantage accrues to a party who, by trial strategy, joins a person protected by the statute as a party defendant and who is later called as an adverse witness by the protected party to testify to a transaction common to all parties in the action, thereby ostensibly foreclosing the testimony by the protected party’s co-defendants as to the transaction to which they may have otherwise been competent to testify.

By reasoning similar to that which appears in Mernick v. Chiodini, 12 Ill App2d 249, 258-259, 139 NE2d 784, where certain defendants were disqualified from testifying as to the actions of their deceased codefendant preceding an automobile accident, on the ground that they would benefit from a finding of liability on the part of the deceased’s estate, Yarwood would also most probably have benefited by the use of plaintiff’s otherwise incompetent testimony, to the detriment of Yarwood’s co-defendants. In calling plaintiff as an adverse witness for Yarwood, the door was opened to the admissibility of the testimony of Yarwood’s codefendants as to the entire accident. (Although one authority states that “ [t] he witness opening the door must be a protected party or a person having a direct interest with him,” ((ital, by court)) the case from which this conclusion is drawn does not so expressly hold. See Cleary, Handbook of Illinois Evidence, 2nd ed, 1963, at pages 126-127; Volbracht v. White, 197 Ill 298, 64 NE 324.)

Yarwood maintains that the jury’s verdict, that he acted in a wilful and wanton manner, is contrary to the manifest weight of the evidence. We disagree. When viewed in a light most favorable to plaintiff, the evidence adduced at trial did not so overwhelmingly favor Yarwood that no contrary verdict could stand. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504. The trial court properly denied defendant Yarwood’s motions for directed verdict and judgment notwithstanding the verdict.

To constitute wilful and wanton misconduct, an act which results in injury to others must either be intentional, or it must be performed under circumstances which exhibit a reckless disregard for the safety of others, such as failure, after knowledge of impending danger, to exercise ordinary care to prevent the danger, or a failure to discover the danger through recklessness or carelessness when it could have been discovered through the exercise of ordinary care. Schneiderman v. Interstate Transit Lines, Inc., 394 Ill 569, 69 NE2d 293. An “error in judgment” may also constitute wilful and wanton misconduct under the proper circumstances. Hering v. Hilton, 12 Ill2d 559, 564, 147 NE2d 311.

Yarwood admitted to the investigating officer that he observed the Goedke vehicle approaching in the opposite lanes of traffic, but that he thought that he “had time to make it” across the eastbound lanes into the entrance driveway to the restaurant. It is undisputed that the Goedke automobile could not have been seen until it had reached the crest of the hill to the west of the restaurant, so that the distance between the Goedke and Yarwood vehicles could have been no more than 150 to 200 feet when Yarwood first had the opportunity to observe the oncoming Goedke automobile. There is evidence that Yarwood commenced his turn when the Goedke automobile was approximately 80 to 85 feet away, and further evidence that the turn was commenced when the Goedke vehicle reached the west restaurant entrance driveway. There is evidence that the Goedke automobile was traveling between 50 and 55 miles per hour as it approached the Yarwood vehicle, well within the posted speed limit on the highway, and also that it was traveling between 40 and 50 miles per hour after the screech of tires was heard.

There is evidence that the Goedke vehicle made skid marks on the highway pavement measuring 50 to 55 feet before the point of impact with the Yarwood vehicle, and that no skid marks were observed which were made by the Yarwood vehicle. There is evidence that the Yarwood automobile was facing in a 45 degree angle, partly into the eastbound lanes of traffic in executing the turn, traveling 20 to 25 miles per hour, immediately prior to the time of impact. There is evidence that a “split second” interval of time elapsed between the sound of screeching tires and the impact of the collision. Although Yarwood stated that he thought that he had ample time to “make it” into the driveway before the oncoming traffic reached him and although it may have been an “error in judgment” in failing to properly estimate the distance, speed, and the like of the oncoming Goedke vehicle, the jury could have concluded from the evidence presented that Yarwood attempted to execute the turn across the oncoming lanes of traffic under such circumstances which rendered his conduct wilful and wanton and in disregard of impending danger.

While Yarwood cites several cases in support of his position in this regard which are distinguishable from the case at bar, it should be noted generally that cases involving wilful and wanton misconduct must be determined on their individual factual situations. Ficht v. Niedert Motor Service, Inc., 34 Ill App2d 360, 181 NE2d 386. The court in Mower v. Williams, 402 Ill 486, 84 NE2d 435, was concerned with a situation where the defendant exercised due care yet the accident occurred; the court in the later case of Hering v. Hilton, 12 Ill2d 559, 147 NE2d 311, in which defendant was found guilty of wilful and wanton misconduct, distinguished the Mower case on the ground of the care exercised by the defendant in Mower. In Bartolucci v. Falleti, 382 Ill 168, 46 NE2d 980, a tire came off defendant’s moving vehicle causing the vehicle to subsequently overturn and resulting in injuries which were the subject matter of the action; defendant had no prior knowledge of the defective condition; this fact alone, without more, cannot be said to have constituted wilful and wanton misconduct on defendant’s part. See also Bernier v. Skripek, 86 Ill App2d 118, 229 NE2d 890; Robertson v. New York Cent. R. Co., 388 Ill 580, 58 NE2d 527.

The second point raised by Yarwood is that the trial court erred in allowing Officer Sbarbaro to testify to the conversation he had with eyewitness Bertani at the scene of the accident. The court allowed the officer’s testimony into evidence for the reason that Bertani’s statement to the officer, that the Yarwood vehicle cut in front of the Goedke vehicle, was part of the res gestae, and for the further reason that counsel represented to the court that Bertani himself would subsequently testify to the same matter. Even if it were to be held that the officer’s testimony may have been hearsay, inasmuch as Bertani’s statement to him was not made in the presence of Yarwood, nevertheless, admission of the statement into evidence did not prejudice Yarwood because Bertani himself later testified that he observed the Yarwood attempt to execute a left-hand turn in front of the oncoming Goedke automobile. The officer’s testimony in this regard is merely cumulative.

Yarwood also states that the trial court erred in admitting the statement made by Yarwood to the Officer at the scene, that Yarwood saw codefendants’ approaching automobile prior to the left-hand turn attempt, but thought that he “could make it” into the restaurant driveway. Officer Sbarbaro was not rendered incompetent by the Dead Man’s Act for the reason that he had no interest in the outcome of the litigation. The statement was an admission against interest made by Yarwood and was properly admitted into evidence. Clark v. A. Bazzoni & Co., Inc., 7 Ill App2d 334, 338, 129 NE2d 435; see also Ritter v. Nieman, 329 Ill App 163, 169, 67 NE2d 417.

Yarwood further contends that the trial court erred in refusing to give the jury Yarwood’s tendered instruction #5, limiting certain testimony as not binding upon Yarwood, in accordance with the court’s earlier oral instruction to the jury at the time plaintiff and defendants Schaefer and Goedke originally testified. The instruction reads as follows:

“Certain testimony was admitted for a limited purpose only during this trial and this testimony which was admitted for a limited purpose only is not binding upon the defendant, Bertram H. Yarwood.”

As shown above, when Yarwood called plaintiff as his witness and questioned her concerning the accident, he waived the incompetency not only of plaintiff but also of codefendants Schaefer and Goedke to testify as to the entire accident. A consideration of the testimony of Goedke and Schaefer reveals that the major portion thereof goes to the circumstances of the accident; only a small portion concerns their actions prior to arriving at the scene where the accident occurred, which in no way involved Yarwood. As to the testimony of plaintiff, the major portion of her testimony relates to a prove up of the injuries and damages suffered by her as a result of the accident. Plaintiff’s attorney objected to the instruction during the conference on the instructions on the ground that it failed to inform the jury what evidence they could consider and what evidence they could not consider. We are of the opinion that the trial court did not err in refusing to give to the jury Yarwood instruction #5.

The final contention raised by Yarwood is that the court erred in giving plaintiff’s instruction #28 to the jury, setting forth the issues of the case. Yarwood maintains that the form of the instruction employed is applicable only to an issue of ordinary negligence and cannot be properly adapted to a wilful and wanton issue. The objection to the instruction was not specifically set out in the post-trial motion of Yarwood as required by Ill Rev Stats 1965, c 110, par 68.1(2), and consequently cannot be raised on appeal. Kortlander v. Chicago Transit Authority, 56 Ill App2d 48, 52, 205 NE2d 516. It should also be pointed out that a reading of the instructions as a whole reveals that Yarwood’s duties under the evidence presented were clearly defined as was his liability for failure to abide thereby. The court clearly differentiated between the burden of proof borne by plaintiff as to defendants Goedke and Schaefer, and her burden as to Yarwood, and clearly defined the terms “negligence” and “wilful and wanton misconduct.” The court did not commit error in giving plaintiff’s instruction #23 to the jury.

No questions are raised by plaintiff in her appeal from the judgment against her and in favor of defendants Schaefer and Goedke, other than by way of alternative relief should this court determine that the judgment be reversed and the cause be remanded as to defendant Yarwood. It is therefore unnecessary to answer plaintiff’s contentions in this regard.

For these reasons the judgments are affirmed.

Judgments affirmed.

LYONS, P. J. and McNAMARA, J., concur.


author: TRAPP, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Steven J. Hankins, Defendant-Appellant.
    Gen. No. 11,000.
    Fourth District.
    February 5, 1969.
    John E. Bellatti, of Jacksonville, for appellant.
    Walter Farrand, State’s Attorney of Cass County, of .Virginia, for appellee.
   TRAPP, P. J.

Defendant pleaded guilty to an information in two counts charging aggravated battery, each alleging great bodily harm to separate individuals through use of a shotgun. The court imposed sentence of not less than two years nor more than eight years.

This appeal urges that the court erred in, (1) denying a motion for change of venue from the county because of prejudice of the inhabitants, and (2) in denying a motion for substitution of judges. It is also urged that the sentence imposed is excessive and harsh.

While the offense was committed in September, the relevant facts commence on December 6, 1967, when the defendant waived indictment and the information was filed. Defendant was represented by appointed counsel prior to and on such date. The defendant was arraigned on December 18th and pleaded not guilty. The trial date was designated as February 13,1968.

On January 19, 1968, defendant filed the motions now urged on appeal. The motions were denied as not being timely filed, and because there was no showing of facts in support of such motions.

On or about February 6,1968, defendant indicated that he desired to change his plea. Defendant appeared with counsel, and following extensive admonition by the court changed his plea to that of guilty. The record shows the filing of a signed written plea of guilty with certificate of counsel that the charges had been explained to the defendant, and that counsel believed that the plea had been understandingly made. The written plea of guilty incorporates, in seventeen paragraphs, matters properly explained in the court’s admonition prior to accepting defendant’s plea of guilty.

Defendant was twenty-one years of age within a week after entering this plea. He had completed the tenth grade in school. No motion for probation was made. Following sentence, defendant requested that a notice of appeal be filed, and present counsel was appointed.

A plea of guilty made after explanation and admonition by the court waives all irregularities and errors except those relating to jurisdiction. Such waiver may include a waiver of constitutional rights. People v. Page, 38 Ill2d 611, 232 NE2d 689; People v. Dennis, 34 Ill2d 219, 215 NE2d 218. Since it is not argued that the denial of the motions at issue coerced the entering of the plea, it is not necessary to review the respective rulings as an abuse of discretion. People v. Wilson, 29 Ill2d 82, 193 NE2d 449.

It is urged that the sentence is harsh and excessive in that the defendant was but twenty years of age at the date of the offense, and had no prior felony conviction. No evidence in mitigation appears in the excerpts from the record filed, and the defendant did not testify. In aggravation, the court noted that the defendant had fired a shotgun at the defendants, that he had “leveled” a shotgun, apparently loaded, at a witness to the offenses charged, that the defendant had contrived a temporary escape from the custody of the sheriff, and that the defendant had mounted a physical assault against a prosecution witness on the steps of the courthouse. The record shows that during the four years preceding the offenses charged defendant had been sentenced to the Youth Commission, to St. Charles, and to the penal farm at Vandalia. Upon such record, the court was justified in concluding that the prospects for defendant’s rehabilitation were minimal. We find no abuse of discretion in the sentence imposed, and the judgment and the sentence are affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


author: ME. PEESIDING JUSTICE LYONS

text:
    Robert W. Holderness, Plaintiff-Appellee, v. Checker Taxi Company, a Corporation, Defendant-Appellant.
    Gen. No. 53,217.
    First District, Second Division.
    January 28, 1969.
    Rehearing denied March 5, 1969.

      Jesmer and Harris, of Chicago (Jay A. Canel, of counsel) , for appellant.
    Bertram Emanuel, of Chicago (Charles T. Booher, Jr., of counsel), for appellee.
   ME. PEESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a judgment in amount of $28,-000 entered after a jury trial, in favor of the plaintiff, Eobert W. Holderness, and against the defendant, Checker Taxi Company, a corporation, for personal injuries sustained while the plaintiff was a passenger for hire in a cab operated by the defendant. The judgment was reduced to $13,000 when the court deducted $15,000 paid to plaintiff by Eichard Jezierny, a codefendant, driver of the other car involved in the collision, who was a defendant in the original action and dismissed by the plaintiff. In this appeal the defendant contends that the trial court erred in denying its motion for a directed verdict at the close of all the evidence as well as its motion for a judgment notwithstanding the verdict.

Plaintiff was a passenger in the rear seat of one of the vehicles operated by defendant company as it proceeded west on Lake Street in the City of Chicago. The taxi was in the extreme right or curb lane and traveling at a rate of speed of about twenty-five (25) miles per hour. The taxi was suddenly struck on the left side near the left front fender or wheel by another vehicle which had been proceeding in the same direction and at a like rate of speed, but which suddenly swerved to the right and into the side of the taxi. Following the collision, the taxi at least partially mounted the curb and proceeded down the sidewalk until striking a fire hydrant.

Plaintiff testified at trial that the impact caused by the collision of the two cars was slight and that after the collision the taxi proceeded down the sidewalk at an increasing rate of speed, attaining the speed of sixty-five (65) miles per hour before striking the hydrant; that the distance which the taxi traveled between the initial collision and its striking the hydrant was four hundred (400) feet; that the driver’s hands were off the wheel for two to three minutes; that the impact upon striking the hydrant was of such severity as to cause him to be thrown about the interior of the taxi, whereby he sustained the injuries for which recovery is sought.

The defendant alleged by its witnesses, who were occupants of the vehicle which had been following the vehicle which struck the taxi; that the initial collision, between the cab and the vehicle which struck it, was a violent collision which forced the taxi at least partially over the curb and onto the sidewalk; that the driver of the cab appeared to be attempting to control it; that the distance traveled by the taxi between the time it was struck by the other vehicle and its collision with the hydrant was no greater than fifty (50) feet; that during the time this distance was traversed there was no increase in the speed of the taxi. (The defendant’s driver, Gerald Hoffman, did not testify, except by portions of a deposition, due to an injury unconnected with this accident.)

There is no dispute between the parties as to the fact that up to the time the taxi was struck by the other vehicle the driver was at all times in control and operated the taxi in a careful manner.

Motions for a directed verdict or judgment n. o. v. present the same issue to the court, that is whether the proof presents a factual question for the jury’s determination. Thus the same standards apply in the case of either motion, Finley v. New York Cent. R. Co., 19 Ill2d 428, 137 NE2d 212 (1960); Nutwood Drainage and Levee Dist. v. Manner, 10 Ill2d 101, 139 NE2d 247 (1956).

The particular standard to be applied was set down by the Supreme Court in the case of Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967), where the court stated:

“. . . verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

The import of the rule, then, is that all the evidence should be considered in its aspects most favorable to the party moved against, with a view to whether a jury could find for that party on the basis of the evidence. Thus, the Supreme Court in the case of Keen v. Davis, 38 Ill2d 280, 230 NE2d 859 (1967), after restating the rule which it laid down in the Pedrick case, held that the trial court was correct in directing a verdict for the defendant only upon a determination that: “Under this state of facts plaintiff could never establish the two elements necessary for recovery.” Cf. Larson v. Harris, 38 Ill2d 436, 231 NE2d 421 (1967).

The present case involves injury to a passenger of a common carrier, a person to whom the carrier owed a duty to use the highest degree of care consistent with the mode of conveyance and the practical operation thereof, Kruger v. Richardson, 326 Ill App 205, 61 NE2d 399 (1945); Louis v. Checker Taxi Co. and John Hoppe, 318 Ill App 71, 47 NE2d 351 (1943); Baltes v. Checker Taxi Co., 27 Ill App2d 298, 169 NE2d 596 (1960). It is with this high standard of care in mind that the rule from the Pedrick case must be applied.

The evidence of the parties differs as to two fundamental facts: The violence of the initial collision as between the taxi and the vehicle by which it was struck, such fact bearing on the questions of (a) whether defendant was negligent in losing control of the cab; (b) whether defendant, after losing control of the cab, was negligent in failing to regain such control; and the distance traveled by the taxi between the time it was struck by the other vehicle and the time it struck the hydrant, such fact bearing on the question of whether defendant was negligent in failing to regain control of the taxi. These factual differences are the basis upon which a finding of negligence or the lack thereof must be based. The resolution of such factual differences was within the province of the jury and we cannot say that the evidence, when viewed in its aspect most favorable to plaintiff, so overwhelmingly favors defendant that no verdict for plaintiff could ever stand.

There being no point raised by appellant with respect to any element other than liability, the judgment of the circuit court is affirmed.

Judgment affirmed.

BURKE and McNAMARA, JJ., concur.